This 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
A 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:
- the applicant is the family member of the EEA national (marriage certificate, birth certificate or other evidence of family link)
- 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
- 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
- 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
- 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:
- 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;
- the applicant is an extended family member as defined in Regulation 8 (see Section EUN2.7 below for further information).
- refusing the application would deter the EEA national from exercising his/her free movement rights;
- 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.