Immigration options for Non-EU Family Members of EU Citizens in UK
Non-EU family members of EU citizens living in the UK may be able to join their relatives in Britain provided the eligibility requirements are met.
UK immigration reform is imminent, with EU freedom of movement set to end and a new UK system scheduled to be implemented by January 2021. However, the rights of EU citizens in the UK, and their non-EEA relatives, are set to remain as they are until 30 June 2021, or 31 December 2020 if the UK leaves the EU without a deal.
We look at the immigration options and eligibility requirements for non-EU family members of EU citizens living in the UK prior to Brexit, and once the post-Brexit changes have taken effect.
Can non-EU family members join their EU relatives in the UK?
EU citizens living in the UK, or planning to move to the UK within the next six months, have the right to bring their non-EEA family members to join them. If you are a non-EU family member of an EU citizen living in the UK, you may apply for one of two types of family permit to live with your relative in Britain. Which you apply for will depend on your relationship to your relative and their current UK immigration status.
Family permits for non-EU family members of EU citizens living in the UK
The two types of family permit you may apply for are:
- The EEA Family Permit – this covers immediate and extended family members of EEA citizens.
- The EU Settlement Scheme (EUSS) Family Permit – this covers immediate family members of EEA citizens who have been granted settled or pre-settled status, under the EU Settlement Scheme.
Both family permits are designed for non-EU family members of EU citizens living in the UK, who have not yet entered the country. Whether you choose to apply for an EEA Family Permit or an EUSS Family permit, that application must be made from outside the UK. In both cases, your EU relative must already be in the UK, or must be planning to move to the UK with you in the six-month period after the permit application is made.
Currently, non-EU family members of EU citizens living in the UK do not need to obtain a family permit, providing they are immediate family members (as discussed below). Though, the UK government recommend applying for a family permit anyway, as there is chance you may be held up at the border or denied entry without one. For extended family members, obtaining an EEA Family Permit is mandatory. After 30 June 2021 (or in the event of a no-deal Brexit, 31 December 2020), immediate non-EU family members of EU citizens living in the UK must apply for an EUSS Family Permit.
Both the EEA Family Permit and the EU Settlement Scheme Family Permit remain valid for six months from the date of approval. Within those six months, permit holders are free to leave and re-enter the UK as many times as they like. They are also entitled to seek employment in Britain. Once your family permit has expired, you may apply for a residence card to remain in the UK, or to the EU Settlement Scheme for settled (also known as ‘Indefinite leave to remain’) or pre-settled status, if you are eligible.
What is a residence card?
Non-EU family members of EU citizens living in the UK can apply for a residence card to remain in the UK, once their EEA Family Permit has expired. The residence card eligibility requirements for you and your UK-based EU family member are much the same as the EEA Family Permit eligibility requirements discussed below. The main difference is that residence cards can be applied for from within the UK and remain valid for up to five years. Residence cardholders have slightly better rights than family permit holders and may be eligible for some public healthcare, services and benefits.
Once a non-EEA national has legally lived in the UK for five years or more, they automatically qualify for permanent residence. On 30 June 2021, all residence and permanent residence cards will become invalid. To stay in the UK beyond this point, EU citizens and their immediate family members must have been approved by the EU Settlement Scheme.
Who can apply for an EEA Family Permit?
The EEA Family Permit is suitable for non-EU family members of EU citizens living in the UK as a ‘qualified person’ or with permanent residence status. If you intend to travel to the UK with your EU relative, they must meet the qualified person criteria within three months of arrival.
The UK government defines a ‘qualified person’ as someone who is one of the following:
- In employment
- Self-employed and paying taxes and national insurance (NI)
- Financially self-sufficient (must also have full health insurance cover)
- Studying (must also have full health insurance cover)
The EEA Family Permit covers both immediate and extended non-EU family members of EU citizens in the UK. Though, extended family members must be considered dependent on their EU relative to qualify.
Immediate or ‘direct’ family members are:
- A spouse or civil partner
- A child or grandchild under 21 years old
- A dependent child or grandchild over 21 years old
- A dependent parent or grandparent
You may also qualify as an immediate family member if you are directly related to the EU citizen’s spouse or civil partner, as defined by the above criteria. Non-EU family members of EU citizens living in the UK may qualify for an EEA Family Permit as an extended family member (e.g. sibling, niece, nephew, uncle or aunt) if they can prove they are financially dependent on their UK-based relative.
The EEA family permit may also be suitable for non-EEA relatives wishing to move to the UK on the basis that:
- They are the carer of someone who has permission to live in the UK, the carer’s child, or the child of an EU citizen who no longer works in the UK. This is referred to as ‘derivative right of residence’.
- They have spent at least one year living with a British family member in an EEA country outside the UK. This is referred to as a ‘Surinder Singh’ application.
- They previously had the right to be in the UK with an EEA family member who has since died or left the UK. This also applies to non-EU nationals who were previously married to, or in a civil partnership with, an EU citizen living in the UK. This is referred to as ‘retained right of residence’.
Who can apply for an EU Settlement Scheme Family Permit?
Only non-EU family members of EU citizens living in the UK with settled or pre-settled status can apply for an EUSS Family Permit. This permit only covers immediate family members, as defined in the EEA Family Permit section above. The following people ARE NOT eligible to apply for an EU Settlement Scheme Family Permit:
- Extended family members (dependent or otherwise)
- Those applying for ‘derivative right of residence’
- Those wishing to make a ‘Surinder Singh’ application
After the Brexit deadline has passed, the EUSS Family Permit will be the only immigration option available to non-EU family members of EU nationals in the UK. Existing EEA Family Permits will no longer be valid, nor will new EEA permits be issued.
How will Brexit affect immigration options for non-EU family members of EU citizens in the UK?
After Britain has left the European Union, the immigration status of EU, EEA and Swiss nationals living in the UK will be covered by the EU Settlement Scheme. All EEA nationals wishing to remain in the UK must apply to the EU Settlement Scheme unless they have already been granted ‘indefinite leave to remain’.
Non-EU family members of EU citizens in the UK may also apply to the EU Settlement Scheme, but only once they are in the UK. Any non-EEA national outside the UK who wishes to join their family in Britain would need to apply for the EU Settlement Scheme Family Permit discussed previously in this guide.
If you are an EU citizen or the non-EU family member of an EU citizen in the UK, it is important to note that people with ‘permanent residence’ status are also required to apply for settlement under the EU Settlement Scheme. Those who are approved will be granted ‘settled’ status if they have lived in the UK continuously for at least five years. ‘Pre-settled’ status may be awarded if you have been in the UK for less than five years or are due to move to the UK in future.
Applications for the EU Settlement Scheme and the EUSS Family Permit are now open. EU citizens and their non-EU family members already living in the UK will retain their current rights until 30 June 2021, if the UK leaves the European Union with a deal in place. If the UK leaves with no deal, that deadline will be moved forward to 31 December 2020. Any EEA nationals living in the UK may lose their right to remain in the country if they have not been awarded settled or pre-settled status by the deadline.
Do you need advice on your UK immigration options?
DavidsonMorris is a leading UK immigration law firm specialising in UK Home Office applications, including EEA family permits. Our legal team will provide you with a professional, friendly, reliable service to help you proceed with the most appropriate route for your circumstances and to avoid any issues or delays with your application. For support with your UK application, contact us.