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Dependants and family members of EEA nationals residing in the UK

Introduction

As a general rule, European nationals are permitted to enter and remain in the UK without restriction (please refer to the EEA nationals page for more information on the rights of EEA nationals). Family members of EEA nationals who are themselves EEA nationals may also enter and remain in the UK without restriction. Family members of EEA nationals who are not themselves EEA nationals may, in certain circumstances accompany the EEA national to the UK and remain here with them. Although such individuals are not European, and should apply for a visa, it is important to note that the rules governing admission to the UK and continued residence are stipulated by European Law, and not the UK’s own ‘Immigration Rules’.

Who is a dependant?

The European Law definition of a family member is considerably wider than the UK Immigration Rules’ own definition. European Law stipulates that the following be considered family members:

  • Spouses;
  • Civil Partners;
  • Partners in a ‘durable relationship’ (individuals must generally have lived with the European national for at least two years in order to qualify under this provision);
  • Children under the age of 21 (including step children and adoptive children);
  • In certain circumstances it may also be possible for the following to accompany their European family member to the UK;
    • Parents and grandparents of the European national or their family member;
    • Children over the age of 21;
    • Other family members such as Cousins, Siblings, Aunts and Uncles.

It should be noted that where the EEA national is a Student in the UK, they may only be accompanied by their partner and dependant children.

General requirements

In order to remain in the UK as a Family Member of a European national, the European national must be exercising a ‘Treaty Right’. The following is a brief list of the activities that may be considered to be ‘exercising a Treaty Right’:

  • Employment;
  • The process of seeking employment;
  • Self-employment;
  • Self sufficiency;
  • Study.

‘Self sufficiency’ can cover a wide range of situations, including where it is the non-European national who is working and supporting the family, rather than the European national themselves. In practice, provided the European national and their family members are not receiving public funds, it should usually be possible to demonstrate that a Treaty Right is being exercised. Where the European national is working, it may even be possible for them to claim some public funds without this affecting their ‘exercising’ of a Treaty Right. The test in situations such as this is whether the individual and their family members are an ‘unreasonable’ burden on the state.

Entry to the UK

When seeking to enter the UK, family members must either be accompanied by the European national, or the European National must already be in the UK. Whilst it may be possible to gain entry to the UK without first applying for a visa, it is advisable first to apply for an EEA ‘Family Permit’. This is a type of visa issued for six months to family members of European nationals seeking entry to the UK. Applications for Family Permits should be made to the nearest British Diplomatic Post, and do not attract an application fee.

Remaining in the UK

Once in the UK, family members may stay in the UK for as long as the European national is in the UK exercising a Treaty Right. Whilst technically family members are not required to hold a visa, it is advisable to apply for a Residence Card once inside the UK. Family members without Residence Cards will struggle to demonstrate to any potential employers that they have the right to work in the UK. A Residence Card may be obtained by applying to the UK Border Agency. Again, this application does not attract an application fee, although the UK Border Agency tends to take a long time to decide these applications (6-12 months). Residence Cards are issued for five years, although the family member may only remain in the UK for as long as the European national stays here. If the European national leaves the UK, or the relationship breaks down, the family member will generally need to leave the UK. This is subject to the following:

Retaining a Right of Residence

In certain circumstances it may be possible for a family member to ‘retain’ a right of residence in the UK where the European national dies or leaves the UK, or where the family member is a spouse or civil partner, if the relationship breaks down. In this latter example, a family member may retain a Right of Residence if:

  • the marriage or partnership lasted for at least three years before the break down; and
  • the parties to the marriage or civil partnership had resided in the UK for at least one year during the duration of the marriage or civil partnership, or
  • the former family member of the European national has custody of their children or a right of access to their children in the UK, or
  • there are particularly difficult circumstances (such as domestic violence) justifying the retention of the right of residence.

If a former family member is deemed to retain a Right of Residence, they are permitted to remain in the UK as long as they are performing an activity that would be considered a ‘Treaty Right’ if they were a European national themselves.

Conditions family members must abide by

Family members of nationals of the majority of EEA states are permitted to live and work in the UK without restriction, in the same way as the EEA national themselves. Family members of A8 nationals (the 8 countries that joined the EEA in 2004) may need to join the ‘Worker Registration Scheme’ if they intend to enter employment, whilst family members of A2 nationals (Bulgarians and Romanians) may need to apply for an Accession Worker Card before they can enter employment. For more information regarding the rules on family members of nationals of Accession states, please contact us.

Permanent Residence

Family members of European nationals will usually qualify for permanent residence after spending 5 years in the UK under that status. Unlike dependants of visa holders, who may apply for Indefinite Leave to Remain at the same time as the main visa holder (regardless of how long they have been in the UK themselves), family members of European nationals cannot apply for permanent residence at the same time as the European national unless they have completed the qualifying period (5 years) themselves. Family members applying for permanent residence must show that the European national has been exercising a Treaty Right for the last five years.

For more information on the process of applying for a family permit, residence card or permanent residence, or for a free assessment of the viability of such an application, please contact us.

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