The Immigration (European Economic Area) Regulations 2016, later updated in February 2017, are the prevailing legislation in respect of the immigration rights of EEA nationals coming to and remaining in the UK. The EEA Regulations 2016 are to remain in force in their current form at least and until UK immigration rules are formally amended as part of the Brexit process.
The main areas covered by the EEA Regulations 2016 are:
- Eligibility
- Family members
- Right of admission to the UK
- EEA family permit
- Initial, extended and permanent right of residence
- Derivative right to reside
- Registration certificate and residence card
- Exclusion and removal from the United Kingdom
- Refusal to issue or renew, or revoking of residence documentation
- Cancellation of right of residence
Eligibility
Under the EEA Regulations 2016, a person who is eligible for immigration to the UK is known as a ‘qualified person’.
A qualified person, and hence a person who is eligible, must be an EEA national and meet the criteria for at least one of the following categories:
- a jobseeker: actively seeking employment in the UK and likely to gain such employment
- a worker: employed by a business or organisation in the UK, or who has become unemployed but meets certain requirements
- a self-employed person: working for themselves, whether on a sole trader basis, freelance or owning a company or partnership
- a self-sufficient person: having sufficient funds to support themselves and any dependents without support from the UK benefits system
- a student: enrolled in an educational course with an establishment that is registered on the DFES Register of Education and Training Providers
Family members
In the EEA Regulations 2016, the following individuals come under the term ‘family member’:
- spouse or civil partner
- children (including step-children) aged under 21
- grandparents of qualified member or their spouse or civil partner
Extended family members are generally any other relatives who do not come under one of the above ‘family member’ categories including durable relationships.
Right of admission to the UK
An EEA national who holds a valid passport or national identity card may enter the UK.
This section also covers the treatment of non-EEA nationals wishing to enter the UK if they are a family member of an EEA national.
Where such a family member can produce a valid passport and qualifying EEA State Residence Card, and is accompanied by the qualified person or travelling to join them, they may enter the UK.
Where such a family member can produce a valid passport, and EEA family permit//derivative residence card/permanent residence card, they may enter the UK.
Where such a family member has retained the right of residence and can produce a valid passport, and EEA family permit/derivative residence card/permanent residence card, they may enter the UK.
EEA family permit
The EEA Regulations 2016 lay out the conditions whereby a person may be granted an EEA family permit. All of the following requirements must be met:
- the person making the application must be a family member of an EEA national
- the related EEA national must currently live in the UK, or will travel to the UK within 6 months of the date of the application and will then live in the UK
- the family member will be accompanying the EEA national, or joining the EEA national in the UK
An EEA family permit may also be granted to a family member who has retained the right of residence in the UK, to an extended family member of an EEA national, or to an extended family member who will accompany the EEA national to the UK or join them there.
Initial right of residence
An EEA national has the right of residence in the UK for an initial period of 3 months as long as they hold a valid passport or national identity card.
This right of residence also applies to:
- a non-EEA national family member of an EEA national who has retained the right of residence
- a family member of an EEA national, living in the UK during the initial 3 months
However, an EEA national and any of their family members who cannot provide for themselves financially and will rely on the UK benefits system do not have the right to reside in the UK.
Extended right of residence
Once the initial period of 3 months has passed, and as long as the qualified EEA national is still qualified (i.e. they fit into one of the categories mentioned in the Eligibility section above), they have the right to extend their residence. This will continue as long as they are qualified.
The extended right of residence will also apply to any family members of the qualified EEA national as long as they are a family member or for as long as the qualified EEA national retains their extended right of residence.
Right of permanent residence
This section lays out the categories of person who may be granted the right to live in the UK permanently. They include:
- EEA national who has lived in the UK continuously for 5 years
- Non-EEA family member of an EEA national, who has lived in the UK continuously for 5 years
- self-employed person or worker who has ceased activity
- family member of self-employed person or worker who has ceased activity, as long as they were a family member when the person ceased activity and the family member had the right to reside on the basis of being a family member of the self-employed person or worker
- family member of self-employed person or worker where the self-employed person or worker has died, the family member lived with the self-employed person or worker before their death, and the self-employed person or worker had lived continuously n the UK for a minimum of 2 years immediately before their death or had died as the result of an occupational disease or an accident at work
- a person who has lived in the UK continuously for 5 years and at the end of that 5-year period is a family member with retained right of residence
This section also states that a person who has a ‘derivative right to reside’ is not eligible for permanent residence. See the following section for more details of what ‘derivative right to reside’ means.
Absence from the UK for over 2 years will remove the right to permanent residence.
Any rights to permanent residence are at the discretion of the Secretary of State or an immigration officer and may be removed.
Derivative right to reside
A person may be granted a derivative right to reside if they are not an exempt person and if they fall into one or more of the following categories:
- the primary carer of an EEA national, where the EEA national is under 18 years old, lives in the UK as a self-sufficient person and would not be able to remain in the UK if their primary carer left the UK indefinitely
- have at least one parent who is an EEA national living in the UK or having lived in the UK in the past. Both the person and the EEA national parent must have lived in the UK at the same time, the parent must have been a worker in the UK during that period, the person is in education in the UK
- the primary carer of a person who meets the above category (has 1 EEA parent living in/did live in the UK, that they lived in the UK at the same time as their parent who was a worker while in the UK, and are in education in the UK) and that the person whom they provide care for would be unable to continue their education in the UK if their primary carer left the UK indefinitely
- primary carer of a British citizen who lives in the UK, and that the British citizen would be unable to live in the UK or any other EEA state if their primary carer left the UK indefinitely
- under 18 years old, doesn’t have leave to enter or remain in the UK under the Immigration Act 1971, their primary carer is eligible for a derivative right to reside in the UK, would not be able to live in the UK should the person they care for leave the UK indefinitely
The ‘education’ above does not include nursery education.
A primary carer is the direct relative or legal guardian of the person in their care, where they have primary responsibility or shared responsibility for that person.
Registration certificate
A registration document provides proof of the holder’s right to live in the UK on the date of the document’s issue.
A registration certificate is issued to any qualified person who can produce a valid passport or national identity card and proof of their eligibility as a qualified person.
The same is true of an EEA national who:
- is a family member of a qualified person
- is a family member of an EEA national who has a right of permanent residence
- is a family member who has retained the right of residence
- an extended family member who is an EEA national, where they are a qualified person or have the right of permanent residence, at the discretion of the Secretary of state
on the production of a valid passport or national identity card and evidence that they are a family member with, where applicable, right of residence.
Note the certificate will no longer be valid if the holder loses their right to reside in the UK.
Residence card
A residence card is valid for 5 years or the intended period of residence in the UK of the qualified person, whichever is shorter.
A residence card is issued to any non-EEA national family member of a qualified person or of an EEA national with a right of permanent residence, who can produce a valid passport and proof that they are a family member.
The same is true of a non-EEA national who is a family member who has retained the right of permanent residence, and in some cases, an extended family member, on the production of a valid passport and evidence that they are a family member with, where applicable, right of residence.
Exclusion and removal from the United Kingdom
Under this section, reasons for exclusion include:
- on the grounds of public policy, public security or public health
- where the person is subject to a deportation or exclusion order, unless the person is admitted on a temporary basis
- where the Secretary of State believes there to be the possibility of future misuse of a right to reside should the applicant enter the UK
- as a family member, where you are neither accompanying nor joining the related EEA national in the UK, and the EEA national does not have the right to reside in the UK
Under this section, reasons for removal include:
- if a person is living in the country without the right to reside there, or should their right to reside come to an end
- on the grounds of public policy, public security or public health
- misuse of right to reside
Refusal to issue or renew, or revoking of residence documentation
The Secretary of State, an immigration officer or an entry clearance officer may refuse to issue or renew residence documentation, or revoke any such documentation, for the following reasons:
- on the grounds of public policy, public security or public health
- misuse of rights
- should the right to reside come to an end, or never have existed
- not meeting the eligibility requirements for a right to reside in the UK
Cancellation of right of residence
A right of residence may be cancelled where the Secretary of State believe that the cancellation is justified on the grounds of public policy, public security or public health.
EEA Regulations post-Brexit
Under current UK government proposals, a new ‘settled status’ is to planned be introduced requiring all EU citizens in the UK to register and confirm their status in order to remain in Britain. Settled status may be available for:
- EEA nationals who have been continuously and legally living in the UK for 5 years by 31 December 2020
- EEA nationals who come to the UK before 31 December 2020 but have not been living in the UK for 5 years when the UK leaves the EU, after they have completed the 5-year period
- family members who live with a qualifying EEA national or travel to the UK to be with them by 31 December 2020 after having lived in the UK for 5 years
- close family members who travel to the UK to join qualifying EEA nationals as long as the relationship existed on 31 December 2020
Any qualified person who has settled status or other form of permission to stay in the UK will continue to have access to healthcare, pensions and other benefits just as they did before the UK left the EU.
These proposals have yet to be accepted as part of the Brexit negotiations before any new legislation can be passed. As such, these remain proposals and the current system operating under the EEA regulations 2016 remain current law in the UK.
With all the changes that will likely come into force when the UK leaves the EU, taking specialist immigration legal advice can provide you with a firm footing for your move to the UK.
DavidsonMorris are experienced in all aspects of Home Office EEA applications. If you have any queries or require guidance, contact our immigration specialists.
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals