4. EEA FAMILY PERMITS
In order to be able to benefit from European Community law, the EEA national must, among other things, be outside of her/his country of citizenship. It is for this reason that in Northern Ireland a person who holds dual British/Irish citizenship would rely on her/his Irish citizenship to support an application by a family member to enter the UK to reside with her/him.
Citizens of the EEA countries are entitled to live and work in the UK under European law and members of the family of an EEA national have rights to enter and remain and work in the UK along with the EEA national worker even if they are not EEA nationals themselves.
Citizens from the ‘new accession’ state, ie the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia, are currently referred to as the A8 nationals. Certain restrictions have been imposed on the first twelve months of an A8 national’s stay in the UK, a complete explanation of which is outside the scope of this document. However, their rights in relation to family reunion are explained at 4.2.2 below.
4.2 Family rights conferred through EEA citizenship
4.2.1 Right to remain
EEA citizens working here (either employed or self employed) are entitled to have their family members living with them in the UK, even when their family members are not EEA citizens themselves. For example, if an Irish passport holder who is living and working in Northern Ireland has non EEA family members, they can live here with her/him, irrespective of the family member’s nationality.
Even if the Irish spouse is not currently employed or self employed, it may be possible for her/him to qualify to bring her/his non EEA family member to the UK if s/he has previously worked in the UK and is unemployed but looking for work, retired or permanently incapacitated.
Where a British citizen has resided and worked in another EEA country and returns to the UK as a worker, her/his non EEA spouse/partner and/or family members may be able to join her/him, as a result of the case of Surinder Singh, which extended EEA rights in such instances. However, the recent case of Akrich in the European Court of Justice has resulted in a change to the immigration rules. The rules now state that, in order to be issued with an EEA family permit, the non EEA spouse/partner must have been lawfully resident in the other EEA country before applying to enter the UK.
The non EEA family members’ entitlement to remain in the UK exists under European law, irrespective of when the application for a family permit or residence document is made and irrespective of the Home Office delay in issuing the documents. It is an automatic entitlement and the application to the Home Office is simply a request for evidence of these rights.
‘Family members’ for the purposes of the EEA regulations, is defined as:
partner (after two or more years living together);
sons and daughters, grandsons and grand-daughters up to the age of 21, and over 21 if they are still dependent;
dependent parents, grandparents and great grandparents of either the EEA national or her/his spouse/partner.
Other relatives may qualify in certain circumstances.
4.2.2 A8 nationals and the right to remain
Where the A8 national is in the first twelve months of stay in the UK then s/he is entitled to be joined in the UK only by her/his spouse, their children who are aged under 21 or are dependent, and dependent relatives in the ascending line. The only difference of treatment compared to other EU nationals is that these A8 nationals do not benefit from the right to bring other, more distant, relatives over. However, it is important to note that it is not clear at present what status these family members are being given.
4.2.3 Other entitlements
Spouses, partners and other family members in the UK under these European rules are entitled to take employment, claim benefits and receive medical care under the NHS as well as social services, depending on their needs, in the same way as the EU nationals. However, it may be difficult to evidence these rights whilst the application is being processed.
4.3 Family permits
EEA family permits are a type of entry clearance or visa allowing the holder to enter the UK. They can be issued ‘over the counter’ at British embassies and consulates abroad without payment of a fee. The Foreign and Commonwealth Office website www.fco.gov.uk lists the British embassies abroad with their telephone and fax numbers as well as email addresses.
Applications for EEA family permits must be made to the UK visa authorities abroad, despite being based on the fact that one spouse/partner has a European passport other than British.
For dual Irish/British citizens living in Northern Ireland, an EEA family permit application is based on their Irish citizenship. They will therefore be required to produce their Irish passport as evidence of their Irish citizenship. Their British passport is not relevant to such an application.
Applicants for EEA family permits are required to show the original of the following documents:
the passports of both spouses/partners and any children or other family members to be included in the permit;
birth certificates of any children to be included on the family permit, naming both parents;
evidence such as birth or marriage certificates showing the relationships of any other family members covered by the application;
marriage certificate or evidence of at least two years co-habitation;
evidence of the EEA citizen's employment or self employment in the UK (such as wage slips, letter from employer, contract of employment, accounts etc); and
evidence that the EEA citizen lives in the UK (such as household bills in her/his name, tenancy agreement, mortgage documents etc).
Unlike an application for a UK spouse/partner visa, there is no requirement to show evidence of the financial standing of anyone involved in EEA family permit applications.
4.4. Right of residence in the UK
EEA family permits issued abroad are usually valid for six months. The family must travel to the UK during this time. Once in the UK, an application should be made by the European spouse/partner to the Home Office in Croydon for an EEA residence permit and an EEA residence document which consists of a stamp in the passport of the non-EEA spouse/partner. Likewise, if the non EEA spouse/partner and/or other family members are already in the UK in some other capacity, an application can be made for the EEA residence permit and residence document. Unlike most other Home Office applications, it is not necessary to use a particular form in this case, however, the Home Office has devised Forms EEA1 and 2 which request all relevant information and are easy to complete. EEA1 is for EEA nationals applying (naming their family members). EEA2 is for applications by non EEA family members of EEA nationals. Either form can be used and the procedure and requirements are the same. They are available on the Home Office website. This application is free.
The completed form should be sent to the UK Home Office in London, the address can be found at the end of Forms EEA1 and 2. Copy should be kept of all documents submitted and they should be sent via recorded delivery. The evidence required is basically the same as that listed above at paragraph 4.3 above. The proof of being employed in the UK can be provided by the employer signing the relevant section of the form. EEA residence permits and residence documents are usually valid for five years. However, where the applicant has temporary employment or is seeking work, they may be issued for shorter periods. Renewed applications can be made at the end of the period granted, depending on the circumstances at the time.
Generally speaking, EEA rights can be exercised irrespective of a person’s previous immigration status (eg, if s/he was here illegally before marrying an EEA national). Furthermore, there is no requirement that the non EEA family members entered the UK lawfully. However, the European Court of Justice case of Ackrich must be noted with caution. Mr Ackrich had a very poor immigration history, having been deported from the UK and re-entered illegally. This was among the factors which led to the European Court of Justice making an unusual decision that he could be refused an EEA permit. Following the decision in this case, the Home Office amended the immigration rules as referred to at paragraph 4.2 above.
After four years, providing the EEA spouse/partner is still working and living in the UK and the couple have not divorced, the non-European spouse/partner and family members will be able to apply for indefinite leave to remain in the UK. This is still the case if the couple are still married but not living together. The application can be made on Forms EEA3 and 4 which are available on the Home Office website.
Even if the couple divorce, there may be circumstances, such as having children at school in the UK, in which a further EEA residence document can be issued.
This area of law is often subject to change and development, therefore a person in immigration difficulties may wish to obtain expert advice.