EEA Family Permit Requirements for Non-EEA Family Members

eea-family-permit-requirementsThis post explains the EEA Permit Requirements for Non-EEA Family Members in the light of Guidance on EEA Family Permit: EUN02.

EEA Family Permit Requirements for Non-EEA Family Members

Purpose of EEA Family Permit

European Economic Area (EEA) Family Permit is an immigration document that helps the holder to enter the UK as a family member of a National of a contracting state to the EEA Agreement or a Swiss citizen. The British Home Office issues EEA Family Permits under the Immigration (EEA) Regulations 2006 (UK) and not under the Immigration Rules.

Duration of EEA Family Permit and Over-stayers

The permit is issued for six (6) months free of charge. If a non-EEA Family Member resides beyond the six months period, the Family Member may not be considered an over-stayer, if he/she abides by EEA Regulations. However, an Extended Family Member needs to obtain a Residence Card for residing in the UK beyond the six months period; otherwise, he/she will be considered an over-stayer.

Family Member Neither Travelling With Nor Joining an EEA National

If a Family Member is neither travelling with an EEA National nor intending to join the EEA National in the UK then the person is not qualified for an EEA Family Permit and needs to apply for an Entry Clearance visa under the Immigration Rules and is liable to pay the requisite fee.

Fiancés and Proposed Civil Partners

Until and unless Fiancé and proposed civil partner establishes that he/she is a durable partner of an EEA nationals, the person is neither considered a Family Member nor Extended Family Member. Therefore, in a number of cases, fiancés and proposed civil partners of EEA Nationals might need to apply for an Entry Clearance visa under the Immigration Rules.

 1. EUN2.1 What is an EEA family permit?

An EEA family permit is a document that we issue to make it easier for non-EEA family members of EEA nationals to travel with their EEA national or to join them in the UK. EEA family permits are issued under the Immigration (European Economic Area) Regulations 2006 and not the Immigration Rules. The permit is issued ahead of a person’s travel to the UK and is valid for six months and is free of charge.

As long as the non-EEA family member of an EEA national continues to meet the EEA Regulations they would not be considered as having ‘overstayed’ simply because the expiry date of their EEA family permit had passed.

An extended family member of an EEA national must obtain a Residence Card following the expiry of an EEA family permit or they will be considered an overstayer.

If the family member is not travelling with the EEA national or will not be joining them in the UK, they will not qualify for an EEA family permit and would need to apply for entry clearance under the Immigration Rules and pay the relevant fee if they want to come to the UK. An applicant who does not qualify for an EEA family permit can only be considered against the Immigration Rules once the specified fee is paid. Regulation 31 of the Immigration and Nationality (Fees) Regulations 2009 clearly says that if an application to be assessed under the Immigration rules is not accompanied by the specified fee, the application is not validly made. This is relevant to fiancés and proposed civil partners of EEA nationals as they are not considered as direct family members or extended family members under the EEA Regulations unless they can show they are a durable partner – see EUN 2.12.

If a family member who is travelling with, or is to join the EEA national in the UK requests a visit visa under the Immigration Rules, you (ECO) should offer him (or her) the option of applying for a family permit under EC law free of charge.

EEA Family Permits Processing Time

The EEA Family Permits are issued from any UK Visa post on a priority basis. In practice, most of EEA Family Permits are processed within 15 to 30 working days- a few within 3 to 5 days as well. However, sometimes it takes up to 60 or even 90 days for making a decision due to doubts about the genuineness of the relation or employment. Therefore, there are delays due to the verification process as an ECO can’t issue an EEA Family Permit until and unless he/she is fully satisfied with the bonafide and intentions of an applicant.

2. EUN2.2 Where can an EEA family permit be issued?

EEA family permits may be obtained from any visa issuing post. It is not necessary for an applicant to be lawfully or normally resident in the country to apply.

3. EUN2.3 How quickly do I need to issue an EEA family permit?

Priority must be given to applications for EEA family permits. Wherever possible a decision should be made at the time it is lodged or after an interview is conducted.

However, the Regulations do not say that EEA family permits must be issued on the day that the application is made. The Directive does allow Member States to take reasonable measures to ensure that freedom of movement is not obtained by deception. Where you (ECO) suspect a marriage of convenience or even ‘sham’ employment for the purpose of freedom of movement, further enquiries should be made and credibility may be tested. As long as delays are justifiable, applications can be tested until the ECO is fully satisfied.EE

EEA Family Permit Requirements

4. EUN2.4 What are the requirements for issuing an EEA family permit?

In assessing an application from an EEA national’s direct family member, the entry clearance officer(ECO) should be satisfied that:

  1. the applicant is the family member of the EEA national (marriage certificate, birth certificate or other evidence of family link)
  2. the EEA national is residing in the UK in accordance with the EEA Regulations (as qualified person (exercising treaty rights) if more than 3 months) and the non-EEA national is joining them; or the EEA national intends to travel to the UK within 6 months and will have a right to reside under the Regulations on arrival, and the non-EEA national will be accompanying or joining the EEA national; and
  3. if applying as a spouse or civil partner, there are no grounds to consider that the marriage or civil partnership is one of convenience; and
  4. if applying as dependent family members (dependent children 21 and over and dependent relatives) they are dependent on the EEA national or the EEA national’s spouse or civil partner; and
  5. neither the applicant nor the EEA national should be excluded from the UK on the grounds of public policy, public security or public health.

In assessing an application from an EEA national’s extended family member, the ECO should consider whether:

  1. the EEA national is residing in the UK in accordance with EEA Regulations (as qualified person (exercising Treaty Rights) if more than 3 months) or has permanent right of residence;
  2. the applicant is an extended family member as defined in Regulation 8 (see Section EUN2.7 below for further information).
  3. refusing the application would deter the EEA national from exercising his/her free movement rights;
  4. in all circumstances, is it appropriate to issue a family permit.

It is important not to test overall intentions in assessing applications for an EEA family permit. Also, there is an initial right of residence for 3 months, which means that an EEA national does not have to be exercising a treaty right immediately on arrival in the UK.

If the applicant is the spouse/civil partner of the EEA national or a dependant child of either the EEA national or their spouse/civil partner is under 21 then they do not need to provide evidence of financial dependency and therefore this should not be requested from the applicant.

Non-EEA Spouse Residing Outside EEA Can Apply

5. EUN2.5 What did the ECJ judgment on Metock say in relation to issuing EEA family permits?

The ECJ judgment on Metock in July 2008 prohibited Member States from having a general requirement for non EEA spouses of EEA nationals to be lawfully resident in another EEA member state before they can benefit from a right to reside under the EU Free Movement of Persons Directive. Therefore, we can no longer apply the lawful residence requirement (which was based on the case of Akrich) or our own domestic legislation (the Immigration Rules) to family members seeking first admission to the EEA from outside the EEA.

Guidance on EEA Family Permit: EUN02 | Published on 13 November 2013 by Home Office UK Government | Details of 3 Sections EUN2.6 to EUN2.8 (of 24 Sections EUN 2.1-2.24)

6. EUN2.6. Who are an EEA national’s core family members?

EUN2.6.

The family members of an EEA national (part 7 of the EEA Regulations) include:

  • spouses or civil partners;
  • direct descendants of the EEA national or their spouse/ civil partner under 21;
  • dependent direct descendants of the EEA national or their spouse/ civil partner 21 and over;
  • dependent direct relatives in the ascending line, for example parents and grandparents of the EEA national or their spouse / civil partner.

Financial dependence should be interpreted as meaning that the family member needs the financial support of the EEA national or his or her spouse/ civil partner in order to meet the family member’s essential needs in the country where they are present – not in order to have a certain level of income.

Important: If the applicant is the spouse or civil partner of the EEA national or a dependent child of either the EEA national or their spouse or civil partner is under 21 then they do not need to provide evidence of financial dependency and therefore this should not be requested from the applicant.

Where the applicant can show that he / she is a family member of an EEA national, an ECO must issue an EEA family permit if the requirements for issuing a family permit (see below) are met.

7. EUN2.7 Who are an EEA national’s extended family members?

Extended family members are more distant family members of the EEA national or of his/her spouse/civil partner who can demonstrate that they are dependent. Partners, where there is no civil partnership, who can show that they are in a ‘durable relationship’ are also considered to be extended family members.

Extended family member of an EEA national are defined in regulation 8 of the EEA Regulations.

An applicant may be considered for an EEA family permit as an extended family member if they are:

  • residing in a country other than the UK and are dependent on the EEA national or are a member of the EEA national’s household; and
  • accompanying the EEA national to the UK or wishing to join them there.

If the applicant does not meet both of these criteria, they can also be considered for an EEA family permit as an extended family member if they are:

  • relative of the EEA national or his spouse / civil partner and on serious health grounds, strictly require the personal care of the EEA national or their spouse/ civil partner; or
  • a relative of the EEA national and would meet the requirements, (other than those relating to entry clearance) in the Immigration Rules for indefinite leave to enter the UK as a dependent relative of the EEA national were the EEA national present and settled in the UK; or
  • partner of the EEA national (other than a civil partner) and can prove to the ECO that they are in a durable relationship with the EEA national.

Where the applicant can show that he / she is the extended family member of an EEA national, the ECO may issue an EEA family permit if in all circumstances, it appears to the ECO appropriate to issue the EEA family permit. Therefore, an EEA family permit may be refused:

  • where refusing the family member would not prevent the EEA national from exercising his / her Treaty rights or would not create an effective obstacle to the exercise of Treaty rights;
  • if the applicant would have been refused entry to the UK on general grounds for refusal had they been applying for entry under the Immigration Rules;
  • maintenance and accommodation requirements aren’t met, for example, the non-EEA national’s admittance would result in recourse to public funds.

Where the extended family member did not reside in the same country as the EEA national before the EEA national came to the UK, and where the EEA national provided financial support only to the extended family member, it is unlikely that the extended family member would be able to demonstrate that refusing to issue them with an EEA family permit would prevent the EEA national from exercising their Treaty rights in the UK. This is because the EEA national could continue to provide financial support to the applicant from the UK.

Family members of students (other than his or her spouse and dependent children) are entitled to join the EEA national for the initial 3 month period she or he is in the UK. Should these other family members wish to remain in the UK with the EEA national student for a period longer than 3 months they would need to apply in country for a Residence Card.

8. EUN2.8 What supporting documents should family members include in their application?

Establishing Financial and Emotional Dependency – EEA Family Permit

Guidance on EEA Family Permit: EUN02 | Published on 13 November 2013 by Home Office UK Government | Details of Section 9, EUN2.9 (of 24 Sections EUN2.1-2.24)

9. EUN2.9 How do I establish dependency under the EEA Regulations?

Direct family members must be wholly or mainly financially dependent on the EEA principal to meet his or her essential needs in order to qualify for an EEA family permit, (children under 21, spouses, civil partners do not need to provide any evidence to show dependency on the EEA national).

Extended family members must be wholly or mainly financially dependent on the EEA principal to meet his or her essential needs in order to qualify for an EEA family permit (durable partners do not need to provide evidence to show dependency on the EEA national). Emotional dependence to the EEA national would also be expected in order for an extended family member to qualify for an EEA family permit.

Whilst the following criteria are not in themselves grounds for refusal, they should be taken into consideration when assessing dependent relatives:

Whether there are any other close relatives in the country of origin from whom the family member receives material support. If a family member receives funds from the EEA national but, for example, is living in the same household as another relative who provides their food and accommodation, the family member cannot be said to need the financial support of the EEA national in order to meet his / her essential needs.

Whether the family member leading an independent life. For example, if a direct descendent 21 or over is married (and especially if they have children), it may be questionable as to whether the EEA national is supporting the essential needs of both the family member and their spouse and children. In such cases additional attention should be paid to ensure that the financial essential needs of the family are being met by the EEA national.

Guidance on EEA Family Permit: EUN02 | Published on 13 November 2013 by Home Office UK Government | Details of Sections 10-12, EUN2.10-2.12 (of 24 Sections EUN2.1-2.24)

10. EUN2.10 What if I suspect a marriage / civil partnership of convenience?

The definition of ‘spouse’ and ‘civil partner’ in the EEA Regulations does not include someone who has entered into a marriage / civil partnership of convenience.

When a marriage / civil partnership of convenience is suspected, the burden of proof is high and rests with the ECO. However, in these cases the ECO is entitled to interview the applicant. Factors to consider include:

  • an adverse immigration history;
  • doubts about the validity of documentation;
  • application follows soon after the marriage / civil partnership;
  • no previous evidence of the relationship.

The ECO should not consider the following cases as marriages / civil partnerships of convenience where:

  • there is a child of the relationship;
  • there is evidence to suggest cohabitation.

11. EUN2.11 How do unmarried partners qualify for an EEA family permit?

An unmarried partner can be considered for an EEA family permit as an extended family member if they are in a durable relationship with the EEA national. The ECO will have to consider factors such as the length of cohabitation, joint finances, whether the couple has children together to establish whether or not the relationship is durable. Each case must be looked at on its own merits. While regulation 12(2) makes provision for the issuing of a Family permit to extended family members (including unmarried partners), ECOs should be aware that only meeting the extended family member criteria is insufficient. Even where an ECO is satisfied that the applicant is in a ‘durable’ relationship, the ECO needs to go on to consider whether ‘in all the circumstances, it appears to the entry clearance officer appropriate to issue the family permit’ Regulation 12(2)(c). Factors to be considered here are those set out at EUN2.7.

12. EUN2.12 Can fiancé(e)s, and proposed civil partners qualify for an EEA family permit?

Fiancé(e)s and proposed civil partners are not recognised as family members or extended family members in the EEA Regulations unless they can show they are in durable relationship. However, provisions have been made for fiancé (e)s and proposed civil partners of EEA nationals paragraph 290 of the Immigration Rules. Fiancé(e)s and proposed civil partners of EEA nationals applying under these Rules will have to pay the usual fee. For the purposes paragraph 290 of the Immigration Rules, an EEA national who is a qualified person in the UK is considered as present and settled if they have permanent residence as set out under schedule 2 of the EEA Regulations.

An application as the fiancé / proposed civil partner of an EEA national can only be considered if the specified fee has been paid. This is because you will need to assess the application under the Immigration Rules and not the EEA Regulations. An applicant who does not qualify for an EEA family permit can only be considered against the Immigration rules once the specified fee is paid. Regulation 31 of the Immigration and Nationality (Fees) Regulations 2009 clearly says that if an application to be assessed under the Immigration Rules is not accompanied by the specified fee, the application is not validly made.

Example: The fiancée of an EEA national working in the UK applies for an EEA family permit, free of charge. She does not qualify under the EEA Regulations and has not paid the specified fee to be considered under paragraph 290 of the Immigration Rules. There is therefore no valid application before the ECO. In this instance the ECO should refuse and first address why the applicant did not meet the EEA Regulations. Reference should then be made to Regulation 31 of the Immigration and Nationality (Fees) Regulations 2009.

Can Adopted Children Qualify for an EEA Family Permit?

EEA Member States, Hague Convention, Switzerland, Liechtenstein

Guidance on EEA Family Permit: EUN02 | Published on 13 November 2013 by Home Office UK Government | Details of Section 13, EUN2.13 (of 24 Sections EUN2.1-2.24)

13. EUN2.13 Can adopted children qualify for an EEA family permit?

The UK currently recognises adoptions that have taken place legally in the majority of EEA Member States (as they are either included on the designated list or because they are Hague Convention states). Switzerland is also on the designated list of recognised countries.

The exceptions to this are Hungary, which has signed the Hague Convention but not yet acceded to or ratified it and Liechtenstein (because it is not on the designated list, nor has it signed the Hague convention). In some (very rare) circumstances adoption orders made in Convention countries may not automatically be recognised in the UK. This is because only adoptions made as ‘convention’ adoptions are recognised (based on Article 17(c) agreements). In general, however, a child legally adopted in one of the recognised Member States should qualify for an EEA family permit provided that they meet the relevant criteria.

If the UK does not recognise a country’s adoption orders an EEA national would need to re-adopt the child in the UK (or in any country whose adoption orders are recognised by the UK) in order for the relationship to gain legal recognition in the UK. This would apply if, for example, an EU national adopted a child in a country not on the designated adoption list.

Can Family of British Citizens Qualify for an EEA Family Permit?

Surinder Singh’s Case | Non-EEA Family Members

Guidance on EEA Family Permit: EUN02 | Published on 13 November 2013 by Home Office UK Government | Details of Section 14, EUN2.14 (of 24 Sections EUN2.1-2.24)

14. EUN2.14 Can family members of British citizens qualify for an EEA family permit? (‘Surinder Singh’ cases)

As a general rule, family members of British citizens do not qualify for an EEA family permit. Article 3 of the Directiveessentially says that an EEA national cannot be considered as exercising freedom of movement in their own State –

“This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.”

However, where an EEA national has exercised a treaty right in another Member State as a worker or self-employed and they wish to return to their own State having exercised that right, certain provisions may apply in order for their non-EEA family members to qualify under the EEA Regulations.

British national and his / her non-EEA national family members can only benefit from free movement rights if they meet the criteria established in the ECJ case of Surinder Singh. The case stated that nationals of a Member State who are exercising an economic Treaty right (that is, as a worker or self-employed person) in another Member State will, on return to their home state, be entitled to bring their non-EEA family members to join them under EC law.

Example: British national is exercising an economic Treaty right in Germany and living with his non-EEA national spouse and children. On the British national’s return to the UK, his non-EEA national family members can apply for an EEA family permit to join him under EC law.

The Surinder Singh judgment is incorporated into the EEA Regulations in Regulation 9. Family members of British nationals who meet the requirements of Regulation 9 are treated as family members of EEA nationals for the purposes of the EEA Regulations.

Applications for EEA family permits must meet the following criteria:

  • The British citizen must be residing in an EEA Member State as a worker or self-employed person or have been doing so before returning to the UK.
  • If the family member of the British citizen is their spouse or civil partner, they are living together in the EEA country or must have entered into the marriage or civil partnership and have been living together in the relevant EEA country before the British citizen returned to the UK.

Because EEA nationals have an initial three months right of residence in the UK, there is no requirement for the British national to be a qualified person on arrival. Therefore, an EEA family permit can be issued to the non-EEA national family member of a British national even if they are only visiting the UK with the British national before returning to the Member State where they are resident.

The ECO should seek advice from European Operational Policy where unsure about the decision to be taken in applying the Surinder Singh judgment.

Can Family Members of Dual EEA Qualify for an EEA Family Permit?

Family Members of British, Irish Nationals, Regulation 2 and 9

Guidance on EEA Family Permit: EUN02 | Published on 13 November 2013 by Home Office UK Government | Details of Sections 15-16, EUN2.15-16 (of 24 Sections EUN2.1-2.24)

15. EUN2.15 Can family members of dual EEA nationals qualify for an EEA family permit?

Yes. A dual German / USA national can rely on their German nationality in order to exercise treaty rights and therefore their family members may apply for an EEA family permit. The applicant will need to show that:

  1. they are an EEA national through the issue of a passport/ID card and that
  2. they meet the requirements of the EEA regs (that is, are exercising Treaty rights, and so on.)

 

16. EUN2.16 Can family members of dual British / Irish nationals qualify for an EEA family permit?

Until 16 July 2012 persons who held British citizenship and who were also nationals of another EEA member state could rely on that EEA nationality to benefit from the terms of the Directive. This was because Regulation 2 of the 2006 Regulations did not preclude such dual national British citizens from benefitting from free right movements.

The definition of EEA national in Regulation 2 was amended on 16 July 2012 to preclude dual British citizens/EEA nationals from benefitting from the Directive and therefore also to preclude their family members from relying upon free movement rights.

The McCarthy judgment determined that a person who holds the nationality of the host Member State (in our case British nationality) and has never exercised their right of free movement and residence does not benefit from the terms of the Free Movement Directive. This is regardless of whether or not they hold dual nationality with another member state. This means that family members are also unable to derive a right of residence under the Directive on their basis of their relationship to such a national. British citizens can only acquire free movement rights in certain scenarios and so are in general prevented from circumventing the requirements of the Immigration Rules when sponsoring entry to the UK of family members.

Where a person has applied on the basis that they are a dual British citizen/EEA national on or after 16 July 2012 then the application must be refused unless the person either:

  1. Meets the provisions of regulation 9 (which gives effect to the ECJ case of Surinder Singh or
  2. Comes within the scope of the transitional arrangements set out below.

The provisions of the transitional arrangement apply where a person:

  1. Has a right to permanent residence in the UK in reliance on the previous definition on the 16 July 2012 or
  2. Has a right to reside in the UK on 16 July 2012 and on 16 October 2012 either:
    “i. Holds a valid registration certificate or residence card issued under the 2006 Regulations, or ii. Has made an application under the 2006 Regulations for a registration certificate or residence card which has not yet been determined iii. Has made an application under the 2006 Regulations for a registration certificate or residence card which has been refused and in relation to which an appeal under regulation 26 could be brought whilst the appellant is in the UK or is pending.”

The transitional arrangements apply until:

  1. The six month validity period to enter the UK in reliance on a family permit has expired and the family has not entered the UK.
  2. Any appeal can no longer be brought
  3. Any appeal is dismissed, withdrawn or abandoned
  4. The person ceases to be the family member of the EEA national
  5. Any right of permanent residence is lost as a result of absence from the UKThis means that once a right is lost, appeal rights against a claimed right are exhausted or a family permit is not used, reliance can no longer be placed by that person on the previous definition of an EEA national.

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