EEA Citizen Family Visa — Enjoy Your Right to Be Admitted to the UK Without a Permit

Summary

Family members of EEA citizens enjoy the right of admission to the UK without leave to enter or remain providing they can prove their relationship to an EEA citizen. Normally this will be done though a passport and an EEA family permit, family residence card or permanent residence card.

Member States are compelled to give a person claiming to be a family member without these documents every reasonable opportunity to obtain the relevant documents or have them brought to him or her or to prove by other means that he or she is indeed a family member.

Family members enjoy the same right of initial residence for a period of three months as EEA citizens (without the right to be accompanied by family members).

A family member wishing to travel to the UK can apply to an Entry Clearance Officer for a family permit, which will considerably ease passage into the UK. The application is free and the permit must be issued as soon as possible if the person qualifies.

An extended family member is subject to an extensive examination by the ECO, whereas an immediate family member need only furnish evidence of the qualifying relationship with the qualified person and of the fact that the qualified person is or will soon be entitled to reside in the UK under the terms of the Directive.

Residence

Family members also enjoy a right of extended residence while they remain the family member of a qualified person. They can apply for a residence card.

The family members of qualified persons enjoy the same rights to take up activities in Member States. The children of nationals of a Member State who are or who have been employed in the territory of another Member State are entitled to that State's general educational, apprenticeship and vocational training courses under the same conditions as a national. The child of a national of one Member State who resided in the territory of another Member State may not claim the benefit of that Regulation where a parent no longer residing in the host Member State, last resided there as a worker before the birth of the child.

Family members may be accompanied by their own children who are under 21 or are dependent or by their own direct dependent relatives in the ascending line. However, any of these family members do not have any right under EC law to be accompanied by other family members (e.g. a spouse or civil partner). They would need to rely on the UK immigration rules, which would be difficult as it cannot be said that a person reliant on EEA freedom of movement rights is present and settled in the UK (one of the requirements for most family applications) until that person has acquired the right of permanent residence, usually after five years.

Retention of rights

In the following situations, the family member will be considered to retain rights of residence despite ceasing to be the family member of a qualified person:

• Where the qualified person dies but the family member has resided in the UK for at least one year and is either him or herself employed, self employed or self sufficient or is the family member of such a person (i.e. the child or dependent relative).
  
  
• Where the family member is the child of qualified person who has died or left the UK where the family member has been attending an educational course (or the child of the qualified person's spouse or civil partner in the same circumstances).
  
  
• Where the family member is a parent with actual custody of a child as described immediately above.
  
  
• Where the family member ceased to be a family member of a qualified person on the termination of the marriage or civil partnership of the qualified person and was residing in the UK at that time and is him or herself employed, self employed or self sufficient (or is the family member of such a person, i.e. the child or dependent relative) and either:
  
  
  • prior to the initiation of the proceedings for the termination of the marriage or the civil partnership the marriage or civil partnership had lasted for at least three years and the parties to the marriage or civil partnership had resided in the United Kingdom for at least one year during its duration;
    
    
  • the former spouse or civil partner of the qualified person has custody of a child of the qualified person;
    
    
  • the former spouse or civil partner of the qualified person has the right of access to a child of the qualified person under the age of 18 and a court has ordered that such access must take place in the United Kingdom; or
    
    
  • the continued right of residence in the United Kingdom of the person is warranted by particularly difficult circumstances, such as he or another family member having been a victim of domestic violence while the marriage or civil partnership was subsisting.

Appeals

EEA decisions are treated as immigration decisions and attract a right of appeal to the Asylum and Immigration Tribunal. If the appeal is made in the UK it should be on a form AIT-1 if it is made outside of the UK it should be made on a form AIT-2.

An appeal may not be brought by a person claiming to be a family member or relative of an EEA national if he cannot produce an EEA family permit or other proof that he is related to an EEA national as claimed.

A pending appeal is not to be treated as abandoned solely because the appellant leaves the United Kingdom. Appeals are treated as pending until finally determined, withdrawn or abandoned, and are not to lose this status provided a further appeal may be brought.

Where the Home Secretary certifies that the decision under challenge was taken "wholly or partly" in the interests of national security or relations with a foreign State or that the decision was motivated "wholly or partly" by information which in the opinion of the Secretary of State should not be made public, for the same reasons, or otherwise in the public interest, the right of appeal lies to the Special Immigration Appeals Commission.

Definition of a Family Member

There are two tiers of a family member. The first is immediate family member (including civil partners) and the second tier is the extended family members.

1. Immediate family members

For most qualified persons the immediate family members are as follows:

• Spouse or civil partner
  
  
• Direct descendants (this can include grandchildren of a qualified person or of a spouse or civil partner who are under 21).
  
  
• Direct descendants children of qualified person or of spouse or civil partner who are dependant (there is no age restriction)
  
  
• Dependant direct relatives in the ascending line (i.e. parents and grandparents) of the qualified person or spouse or civil partner.

For students, however,

• Children must be dependant to be family members
  
  
• There is no provision for dependant direct relatives in the ascending line
  
  

Benefits of being an immediate family member

The benefit of being an immediate family member is that free movement rights are innate and can be evidenced in any suitable way; they do not rely on the possession of a particular piece of paper.

2. Extended Family members

Extended family members, who are treated as family members only if they apply for and receive the requisite documentation, are as follows:

• A relative of the EEA national, their spouse or civil partner who resides or resided in the same EEA state as the EEA national and is dependent on the EEA national or a member of his household
  
  
• A relative of the EEA national, their spouse or civil partner who on serious health grounds strictly requires the personal care of the EEA national, spouse or civil partner. The use of the word 'serious' requires the 'health grounds' to be well beyond ordinary ill health and to require preferably detailed medical evidence in support of any claim, importing a need for complete compliance or exact performance and reinforces the need for personal care to be provided on a day to day basis.
  
  
• A relative of the EEA national, their spouse or civil partner who would meet the requirements of the Immigration Rules as a dependent relative.
  
  
• A partner of an EEA national in a durable relationship, with the EEA national.
  
  

Benefits of being an extended family member

This group benefit from the same rights and freedom of movement as immediate family members, but only if they have applied for and been granted the relevant piece of paper. Their rights are therefore subject to a successful application.

Proving the Relationship

In all of the above categories, both immediate and extended family relationships, must of course be proven. It should also be noted that extended family members are subject to 'extensive examination' under the Citizen's Directive.

Please note that extended family members derive rights only from the UK Immigration Regulations and not from the Citizens Direction and often their cases are very complex.