EEA nationals who are exercising their Treaty right to free movement in the UK (in other words, who are employed, self-employed, studying or enjoying the life of financial independence in the UK) are allowed to bring with them their family members who may not be European nationals.
Family members of EEA nationals are generally required to have a family permit when travelling to the UK. Once in the UK they will be issued with a residence card valid for up to five years. On completion of the five year residence with the EU national, the non-European family members are entitled to permanent residence. They can apply for British citizenship having been settled in the UK for not less than a year and having lived lawfully in the UK for not less than five years, unless their spouse is a British citizen, in which case they can apply for naturalisation after three years of lawful residence and at any time after acquiring permanent right of residence.
We assist with applications for family permits, residence cards, retained right of residence and permanent residence for family members of EU nationals and welcome professional referrals in this area.
The seemingly uncontroversial rule on the rights of third country nationals who are family members of EU nationals is in fact fraught with difficulties. Controversy is often caused by excessively high burden of evidential requirements, bureaucratic formalities, or unsatisfactory definitions of “family members” and “extended family members” in the underlying legislation and piecemeal attempts by the courts to remedy these defects.
For instance, parents and grandparents are referred to as “dependent family members in the ascending line” (simply omitting, no doubt by oversight, those who are not dependent on their children, but still part of their family unit, such as parents of a child at school, and variety of other scenarios). The concept of “Extended family members” has also proved difficult to grasp for the immigration authorities.
Case law has established the rights of non-EEA national parents of an EEA national child to reside in the UK with the child, and more recently has confirmed their right to work in the UK. Case law has established that extended family members of EEA nationals were subject to alternative requirements either to demonstrate they were members of the same household, or to demonstrate their past dependency on the EEA nationals (see our news article regarding Monike).
As a result, the European rules applicable to relatives of EEA nationals are by far more generous than their counterpart domestic rules applicable to family members of British citizens.
Residence rights of family members of EEA nationals are protected in case of death of the Union Citizen or divorce. Case law has developed further protection for circumstances where the Union Citizen leave the UK leaving behind their family with children at a school in the UK.A recent development in case law has permitted parents of EU citizen children to benefit from their children’s entitlement to European nationality, in that it has become possible to derive the right of residence from the right of the children.This is a significant development giving advantage to a considerable number of non-British parents with children who either are UK citizens or born in the UK may claim British nationality at some point in the future.