European law gives important immigration rights to nationals of all the EEA countries and also to Swiss nationals. It also gives rights to family members of EEA nationals who are not themselves EEA nationals.
The European law definition of “family member” is much wider than the definition in the UK Immigration Rules. It may include spouse/civil partner, unmarried partner (with whom you have been living for at least two years), dependent children or grandchildren up to the age of 21 of the applicant or their spouse, and dependent parent or grandparent of the applicant or their spouse. As with the UK Immigration Rules, European law treats heterosexual and same-sex relationships equally.
There is no fee for any European immigration application and there are no English language requirements.
If you are outside the UK and you are a non-EEA family member of an EEA national who is either in the UK or coming to the UK you may be able to apply for an EEA Family Permit. This permit acts like a visa and allows you to come to the UK to be with your EEA family member. It is only granted for a period of six months, and you may wish to extend your EEA Family Permit into an EEA Residence Card when you are in the UK
If you are in the UK and you are the non-EEA family member of an EEA national who is also in the UK you may be able to or you may wish to apply for an EEA Residence Card.
If you already hold an EEA Family Permit there is no legal requirement to apply for an EEA Residence Card but it may make your life much easier because you will easily be able to prove your immigration status and it will make re-entry into the UK far easier if you travel outside the UK. If you hold any other kind of visa you may need to switch your status and apply for an EEA Residence Card. Potentially, you may even be able to apply for an EEA Residence Card if you are in the UK illegally, although the application is likely to be more difficult.
An EEA Residence Card is issued for a period of five years.
The EEA Residence Certificate shows that an EEA or Swiss national has the right to live in the UK. If the applicant is in the UK they may apply for an EEA Residence Certificate and they may also include any EEA family members in the application.
The applicant has to prove that they are exercising European Treaty rights in the UK, which means that they must show that they are, for example, working or studying, are retired or are economically self-sufficient.
There is no legal requirement for an EEA national to obtain an EEA Registration Certificate. EEA nationals are entitled to cross the border into the UK in any case by virtue of their nationality, but some people may prefer to have their European immigration status clearly shown in their passport.
If an EEA or Swiss national has been living in the UK continuously for five years and during that time they have been exercising European Treaty rights (which means that they have, for example, been working or studying, or retired or economically self-sufficient) they are entitled to permanent residence (also known as settlement) in the UK under European law. The advantages of permanent residence for an EEA national are that they get some greater immigration rights, and that it provides the possibility of applying for British citizenship.
If the EEA national is entitled to permanent residence then their non-EEA family members may also be entitled to it, depending on how long they have been with their EEA national family member in the UK. The advantages of permanent residence for a non-EEA family member are significant because their immigration situation becomes much more secure.
There are also other provisions for the acquiring of EEA Permanent Residence in less than five years, for example if the EEA family member dies, retires or gives up work because of a medical condition. These rules are more complex.
If a non-EEA family member is living in the UK with their EEA spouse or their EEA parent, and the EEA spouse or EEA parent dies, the non-EEA family member may, in some circumstances, have a “retained right of residence” under European law, which means that they can continue to stay lawfully in the UK.
Similarly, if a non-EEA family member is living in the UK and married to or in a civil partnership with an EEA national, and the marriage or civil partnership is dissolved, the non-EEA family may, in some circumstances, be entitled to “retained right of residence”, and they can stay lawfully in the UK.
Once a person who has acquired retained right of residence has lived in the UK continuously for five years they may be eligible to apply for Permanent Residence.
A non-EEA child and a child’s non-EEA “primary carer” (who can be either a relative or a legal guardian) have also been given rights under European law by the UK Government, but these rights (“derivative rights”) are weaker than the rights given to other categories of applicant under European law. Those who gain rights under these provisions cannot qualify for permanent residence and they cannot bring any non-EEA family members to the UK under European law.
A non-EEA primary carer of an EEA child who is in the UK may be able to acquire the right to enter and stay in the UK to care for the child if there is nobody else who could look after the child in the UK.
If a child who is being educated in the UK previously had the right to be in the UK as a non-EEA family member but has subsequently lost that right, both the child and their non-EEA primary carer may qualify for the derivative right to stay in the UK.
And if a non-EEA primary carer has the derivative right to stay in the UK as the primary carer of a child and the primary carer is also the primary carer of another child in the UK, then that second child in some circumstances may qualify for the derivative right to stay in the UK.
To find out more about the above, you are welcome to call us on 020 8566 5522 for a preliminary informal discussion of your matter. We may ask you to send us further information about your matter either by fax on 020 8566 5511 or by email at email@example.com so that we may get a fuller picture of your circumstances.
After this initial discussion, you may wish to book an appointment for a full consultation via SKYPE or ideally at our offices located at 7 Central Chambers, The Broadway, Ealing, W5 2NR. We are directly opposite Ealing Broadway tube and railway station.
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