What happens if my partner is an EEA national ?
As at May 2017, nothing has changed with regard to the rights of partners of EEA nationals. However, we wait to see what will be the position post Brexit. Here is a very useful self help guide for steps that can be taken now.
The Immigration Law Practitioners Association (ILPA) have also published a series of information sheets providing an overview of EU rights of residence and the issues affecting citizens from European Economic Area (EEA) and from Switzerland and their family members living in the UK in the context of Brexit.
The EEA and ‘exercise of treaty rights’
The EEA (European Economic Area) is comprised of the EU plus three other countries:
Austria, Belgium, Bulgaria, Croatia*, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Irish Republic, Italy, Latvia, Lithuania, Malta, Luxembourg, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, and Sweden plus Iceland, Liechtenstein and Norway.
* Restricted rights until 1st July, 2020.
Switzerland is not part of the EEA but its citizens are treated in a similar way due to a separate agreement.
An EEA national has a right of residence in the United Kingdom if they can show that they are ‘exercising their treaty rights’, or have acquired permanent residence under EU law. They usually do this by working or being self-employed but there are other ways. Full guidance on the exercise of treaty rights is given in the EEA home office guidance.
The partners of EEA nationals who are exercising their treaty rights in the UK, or have acquired permanent residence under EU law, come under EU law not UK law, so that the UK immigration rules do not apply. The exception to this is fiancé(e)/proposed civil partner applications which come under UK law, but currently this route is only available to the partners of EEA nationals who have acquired permanent residence and have a document certifying this.
The family of an EEA national who can show that they are exercising treaty rights will be able to join them or stay with them in the UK. This includes a civil partner (or other recognised partnership), or people in a ‘durable relationship’ (extended family members) under EU law. Durable relationships are currently interpreted by the Home Office to mean those with 2 yrs prior cohabitation just like the UK unmarried partners rules.
Applicants can apply to enter UK as the family member of their EEA sponsor by means of a family permit . This application can be made ‘at any post designated by the Secretary of State to accept applications for entry clearance’ and ‘the applicant will need to be in the third country or territory in accordance with that country or territory’s immigration laws’ (i.e. legally).
A non-EEA partner who is already in the UK can make an application for the right to remain (a residence card) on form EEA(FM) and it is possible to do this at the same time as the sponsor’s application for a registration certificate (though an EEA national does not need to have a registration certificate to live and work in UK).
The spouse or civil partner of an EEA national who is exercising treaty rights in the UK, or has acquired permanent residence under EU law, has an absolute right to remain with the sponsoring partner while they are in the UK, but for practical purposes such as employment, and reentry without applying for a family permit each time, a residence card is needed.
A residence card will be granted to the spouse/civil partner of an EEA national regardless of their immigration status, but we would advise you to obtain legal advice if your immigration status is in question, and the situation is less straightforward for durable partners.
Dual British/EEA nationals
The Immigration (European Economic Area) (Amendment) Regulations 2012 has amended the definition of an “EEA national” in Regulation 2 of the 2006 Regulations.
The new definition excludes persons with dual EEA and British nationality (for example, someone who is both Irish and British) from being considered as “EEA nationals” for immigration purposes.
There are transitional arrangements built into the statutory instrument for the family members of dual EEA/British nationals who, prior to commencement of this provision, relied on their family members’ status as EEA nationals under the 2006 Regulations or who have made applications prior to that date.
The amendment to the regulations is a response to the judgment of the European Court of Justice in ‘McCarthy’ in which it was held that only those who have exercised their rights of free movement – and not those who reside in their country of nationality – can rely on the EEA provisions relating to free movement.
The exact scope of the judgment is subject to debate and we believe that the new regulations have gone too far but it appears that, as the new regulations are written, the non-EEA family members of dual EEA/British nationals will no longer be able to rely on their family members’ EEA nationality to secure a right of residence in the United Kingdom after 16th October 2012.
Those affected should seek specialist legal advice because it is possible that, for those whose sponsoring partners have lived outside the UK in another EU country, EU law should apply even if they are dual nationals.
European law does not provide for fiancé(e)s/proposed civil partners. If the EEA national has acquired permanent residence and has a document certifying this, the partner can use the fiancé(e)/proposed civil partner category. Otherwise, the couple will need to marry abroad or use a marriage/civil partnership visit visa and then leave the UK to apply for an EEA family permit.