-The family member or ‘extended’ family member of an EEA or Swiss National (excluding UK Nationals)

What are the requirements to apply for an EEA Family Permit?

The applicant and his EEA family member need to provide documentary evidence of the genuineness of relationship, of the fact that the EEA National is genuinely exercising treaty rights and their original identity documents. Once approved, the EEA family permit is issued for a maximum of 6 months which entitles the holder having full right to work in the UK.

Once the applicant travels to the UK, he / she can make an application to obtain residence under which is issued for a period of five years. Residence card holders get full rights of working in the UK and can apply for permanent residence upon completing five years of residence in accordance with the EEA Regulations provided their EEA National family member continues to exercise their treaty rights in the UK.

Immediate family member

Following persons are considered as immediate family members of the EEA National:

 Extended family members:

The difference between immediate and extended family members categories is that the immediate family members have got right to come and reside in the UK on the basis of their EEA National’s exercising treaty rights in the UK while the extended family member have to meet a more strict criteria of prior residence with the EEA National outside the UK, financial dependency and other requirements.

The applicant and his EEA family member need to provide documentary evidence of the genuineness of relationship, of the fact that the EEA National is genuinely exercising treaty rights and the original identity documents in support of the EEA Residence Card application. Once approved, the EEA residence card is issued for a maximum of five years’ time.

EEA Residence card holders get full rights of working in the UK and can apply for permanent residence upon completing five years of residence in accordance with the EEA Regulations provided their EEA National family member continues to exercise their treaty rights in the UK.

Prior legal residence in the UK is not a requirement of Residence Card application and as such any one residing in the UK is able to make an application to obtain residence card, provided they can provide all the necessary documentary evidence to establish the relationship and the fact that the Sponsor EEA National family member continues to exercise treaty rights in the UK.

A small mistake / omission may result in refusal of EEA family permit application or dismissal of the EEA Family Permit appeal, making it even more complex. It is therefore strongly advised to take professional representation and leave this matter in our capable hands.

Who can apply for EEA Registration Certificate?

All EEA Nationals are eligible to obtain registration certificate under the EEA Regulations provided they fall under one of the following categories:

Exercising Treaty Rights as EEA National

In applying for an EEA Registration Certificate, Regulation 6 of the EEA Regulations of 2006 states that an EEA National who is in the UK and exercising free movement rights is regarded as a qualified individual and these Nationals are also regarded as qualified persons if they are exercising free movement rights in any of the following categories; Job seekers, Worker, Self-sufficient person, Self-employed person and student.

Exercising Treaty Rights as a Job Seeker

Regulation 6(4) of the European Economic Area (EEA) Regulations of 2006 clearly states that an EEA National who is actively seeking for employment or has a realistic chance of getting a job may also be seen as exercising free movement rights in UK.

These particular individuals may also exercise treaty rights if they fit the following conditions stated below:

Exercising Treaty Rights as a Worker

An EEA National who is employed can also qualify to exercise free movement rights.

Their respective job employment must be on full time or on part time basis and the job must be genuine and effective paid work and carried out under the supervision of someone else and they must be able to support themselves without resorting to claiming public funds.

Based on Regulation 6 (2), this EEA National might still be regarded as a worker even if he or she is temporarily out of employment and if:

Exercising EEA Treaty Rights as a Self-Employed Person

Exercising EEA Treaty rights as a self-employed person could be demonstrated by using appropriate documentary evidence such as invoices to confirm the business or work embarked on, evidence of business accounts, bank statements or accountant’s letter or self-assessment forms which are submitted to HMRC.

Regulation 6 (3) of the EEA Regulations 2006 states that an EEA National who is temporarily out of work due to illness or an accident and is exercising free movement rights as a self-employed individual is also classified as self-employed.

These Nationals also have the right to claim public funds like benefits and ‘top up’ benefits for low income earners without affecting their rights of free movement and residency.

An EEA National who is in the UK that provides enough evidence to show that they are exercising free movement rights as a self-employed person can apply for a registration certificate.

Exercising Treaty Rights as a Self-sufficient Person

An EEA National who is exercising free movement rights as a qualified person in the UK is classified as self-sufficient if he or she has the following:

These Nationals are expected to support themselves and may lose right of residency if they become a burden to the UK system or claim certain public funds.

A retired individual may be qualified as self-sufficient if he or she can provide evidence of receiving a pension or has enough income from other sources such as investments.

An EEA National who is in the UK that provides enough evidence to show that they are exercising free movement rights as a self-sufficient capacity can apply for a registration certificate.

The EEA National involved in charity work can also be part of the self-sufficiency category, that is, if he or she has enough funds to support themselves or if the charity is meeting their living costs.

For instance a volunteer is considered as a self-sufficient individual if their living costs is met by the organization or company they work for.

Exercising Treaty Rights as a Student

An EEA citizen in the United Kingdom who is a student may exercise treaty rights as a student;

These particular students may lose their rights of residency if they claim certain public funds or they become a burden to the UK system.

A student may also apply for a registration certificate as an EEA National who makes available evidence to show that they are exercising free movement rights in the UK.

How soon can you apply for Registration Certificate?

Under regulation 11, an EEA National has the right to enter the United Kingdom (UK) as long as they show a valid National identity card or passport issued by an EEA state. As soon you are admitted into the UK Economy, an EEA National should be able to live in the UK for about 3 months according to regulation 13 of the 2006 Immigration (EEA) Regulation.

An EEA National also has the extended right to stay in the UK provided they meet the requirements of being a “qualified individual”, this is based under Regulations 14 of the EEA Regulation policy.

Benefits of Registration Certificate

The EEA Nationals who have remained in the UK while exercising their treaty rights may make an application for permanent residence provided they have continuously met all the requirements of the registration certificate for five years.

It is important to note that even a small mistake / omission may result in refusal or rejection of the registration certificate application or dismissal of the appeal / judicial review claim, resulting in making it even more complex.

It is therefore strongly advised to take professional representation and leave this matter in our capable hands.

Who can apply for Retained Rights of Residence?

You could have a retained right of residence if:

– Your marriage or civil partnership to your Sponsor has ended (with a divorce, annulment or dissolution)

– Your Sponsor has died and you had lived in the UK for at least 1 year before they died

– You are the child of an EEA National who has died or left the UK, or the child of their spouse or civil partner, or former spouse or civil partner

–  You were in education when that person died or left the UK and you continue to be in education

– You are the parent and have custody of a child who has a retained right of residence because they are in education in the UK

We will discuss each category in more depth below.

1. If the marriage / civil partnership is terminated / dissolved

In this case, the marriage must have lasted for at least three years and the non EEA National must have resided in the UK with the EEA National for at least one year out of the three years` time period in accordance with the EEA Regulations.

If these requirements are not met but the non EEA National has got the custody of the child of the EEA National, he / she may still be able to retain his / her right of residence in the UK.

The most important requirement of the retention application in this case, is for the applicant to provide evidence that the EEA National was exercising his / her treaty rights at the time of divorce, which is often difficult to obtain due to the fact that the estranged EEA National may not be willing top provided his / her documents. We have experience in handling such cases and are best placed to advise our clients in such situations.

In addition to that, the non EEA National must also provide evidences that he qualifies to be a worker / self-employed person / self-sufficient person as if he is an EEA National.

1. If the non EEA National is a victim of domestic violence

If the marriage / civil partnership has not lasted at least three years but the non EEA National has been a victim of domestic violence, he / she may be able to retain his / her right of residence in the UK.

The criteria of establishing domestic violence are similar to that available under the Immigration rules. In addition to that, the non EEA National must also provide evidences that he qualifies to be a worker / self-employed person / self-sufficient person as if he is an EEA National.

1. If the non EEA National has Access Rights to a child

If the non EEA National obtains access rights to a child of EEA National and the court orders that such right must be exercised in the UK, he / she may be able to retain his right of residence in the UK.

The non EEA National must also provide evidences that he qualifies to be a worker / self-employed person / self-sufficient person as if he is an EEA National.

1. If the EEA National dies

If the EEA National dies, the non EEA National may qualify for retention of right of residence provided he / she has resided in the UK with the EEA National for at least one year in accordance with the EEA Regulations.

The non EEA National must also provide evidences that he qualifies to be a worker / self-employed person / self-sufficient person as if he is an EEA National.

1. If a child (in full time education) of the EEA National or his spouse and the EEA National either dies or leaves the UK

A child of the EEA National or his / her spouse may also retain the right of his residence if the EEA National dies or leaves the UK.

The only requirement is to provide evidence that the child was in full time education at the time of death of the EEA National or when the EEA National left the UK.

The non EEA National parent of the child (having custody) may also qualify for retention of right of residence in line with the fact that the child has retained right of residence.

1. If the Application for Retention of Right of Residence is approved, you can apply for permanent Residency

Once the application for retention of right of residence is approved, the applicant is given a residence card for five years and upon completion of the five years, he / she may make an application for permanent residence under the EEA Regulations.

Any time period spent as a family member of the EEA National prior to retaining their right of residence, can be combined to make up total five years of residence, to qualify for permanent residence.

Retention of right of residence applications under the EEA Regulations are often quite complex and we strongly advise you to take professional representation and leave this matter in our capable hands.

Who can apply for EEA Permanent Residence?

The EEA Nationals who have resided in the UK for a continuous period of 5 years in accordance with the EU law are eligible for permanent residence.

The right of residence is possessed by a person who is exercising Treaty rights, which means moving to another EU country other than your own and then engaging in one or more as:

Please note family members of EU Nationals who are engaged in one of the above mentioned activities i.e. exercising treaty rights will also qualify for permanent residence after five years.

As mentioned above the Applicant need to prove he/ she was living for a continuous period of 5 years in the UK and was exercising Treaty Rights which includes the following categories:

 EEA Job seekers

To qualify as a job seeker, you must be able to demonstrate that you are not only actively looking for jobs but intend to have a realistic chance of getting one.

You must prove that you actively have been applying for different jobs. This rule is in line with regulation 6 (4) of the Immigration (EEA) Regulation of 2006. In summary the requirements for exercising treaty rights as a job seeker are:

EEA Workers

If you are currently working in the UK, you fall under the definition of a qualified person or are regarded as exercising treaty rights as a worker. Employment in this instance may either be full or part time.

Importantly, such a worker must be able to sustain themselves without recourse to public funds to be within the definition. There are however situations in which a person is currently unemployed may still qualify as a worker.

Such instances revolve around the European national being temporarily unemployed or unemployed as a result of the following:

EEA Self-employed Person

In order to be a qualified person as self-employed, you have to be registered with the HMRC for income tax and NI contributions. You must be able to evidence this by way of the document evidence such that you submit to the HMRC. Such documents may include invoices, accountant’s letter, bank statements, etc.

Furthermore, Regulations 6 (3) of the European Regulations 2006 allows that in the event of an illness or accident, whereby a self-employed person becomes temporarily out of work, they may still qualify as self-employed.

EEA Self-sufficient person

The rules define a self-sufficient person as one who has:

– Sufficient funds to cater for his/her expenses without having to need help from the government by way of claiming benefits in the UK;

– They have a comprehensive health insurance for all members of their family living in the UK including them;

– They have financial securities and/or a pension sufficient to cover themselves whilst in the UK;

– Is working for a charity which takes care of their living expenses in the UK. Importantly the charity support must be sufficient enough to meet the living cost of both the individual and his family members living in the UK.

EEA Student

Exercising treaty rights also includes a student, as long as they are studying at an appropriately regulated institution.

Documentary evidence including bank statements and comprehensive sickness insurance would still have to be provided to show that the EEA student has enough funds to support themselves in the UK without needing financial support from the government.

It is also important that the institution of learning in which the EEA student is enrolled in, must be recognized as a provider of that course or training.

Absence from the UK in Permanent Residence Application

Absences from the UK of up to six months do not disqualify or prevent a person from acquiring permanent residence. Gaps in employment are also permitted in some circumstances.

Residency documents required to apply for a Permanent Residence card

You need to demonstrate to the Home Office that you have been living in the UK for a continuous period of 5 years during which you were exercising treaty rights.

Permanent Residence for Non EEA national family members of EEA Nationals

The non EEA Nationals may also make their application for permanent residence in the UK provided they fall in one of the following categories and meet all the relevant conditions:

It is important to note that even a small mistake / omission may result in refusal of PR permanent residence application or dismissal of the PR appeal / judicial review claim, resulting in making it even more complex. It is therefore strongly advised to take professional representation and leave this matter in our capable hands.

The difference in immediate and extended family member categories is that the immediate family members have right to reside in the UK on the basis of their EEA national’s exercising their treaty rights in the UK while the extended family member have to meet a more strict criteria of prior residence with the EEA National outside the UK, financial dependency and other requirements.

Prior legal residence in the UK is not a requirement of this application and as such anyone residing in the UK who is an eligible extended family member of a qualified EEA national, is able to make an application under the EEA regulations.

How can the Extended Family Members obtain a Residence Card?

Here we would like to quote a very useful decision of the Upper Tribunal (Immigration and Asylum Chamber) i.e. Dauhoo (EEA Regulations – reg 8(2)) [2012] UKUT 79 (IAC)

Under the scheme set out in reg 8 (2) of the Immigration (European Economic Area) Regulations 2006, a person can succeed in establishing that he or she is an “extended family member” in any one of four different ways, each of which requires proving a relevant connection both prior to arrival in the UK and in the UK:

It is not necessary, therefore, to show prior and present connection in the same capacity: i.e. dependency- dependency or household membership-household membership ((i) or (ii) above). A person may also qualify if able to show (iii) or (iv).

Though the Ld. Immigration Judge clearly explained how an extended family member can succeed in obtaining family permit or residence card, but it certainly does not make it an easy task.

It is important to note that even a small mistake / omission may result in refusal or rejection of the application made under EEA regulations or dismissal of the appeal / judicial review claim, resulting in making it even more complex. It is therefore strongly advised to take professional representation and leave this matter in our capable hands.

Eligibility for Derivative Residence Card

To get a derivative residence card you must be one of the following:

Primary carer in Derivative Residence applications

A ‘primary carer’ is when you act as someone’s main carer and have sole responsibility for the person, or you share the responsibility with someone else, and you are their direct relative or legal guardian. Direct relatives include:

If the application for Derivative Residence Card is approved

In all the above categories, the applicant needs to provide documentary evidences of the genuineness of relationship and of all the factors relevant to assess the circumstances of the application and /or the EEA /British Citizen child. Once approved, the derivative residence card is issued for a maximum of five years` time and entitles the holder full rights of working in the UK. The derivative residence card holders, however are not permitted to apply for permanent residence under the EEA regulations but may qualify for ILR under the immigration rules on the basis of having lived for 10 years legally and continuously residence in the UK as there are no restrictions on the number of applications made by the non –EEA national.

Prior legal residence in the UK is not a requirement of this application and as such any one residing in the UK is able to make an application to obtain derivative residence card, provided they can provide all the necessary documentary evidence to establish the relationship and other requirements of this application.

It is important to note that even a small mistake / omission may result in refusal derivative residence card application or dismissal of Derivative Residenceappeal / judicial review claim, resulting in making it even more complex. It is therefore strongly advised to take professional representation and leave this matter in expert Immigration Lawyers.