Because of the Brexit uncertainties, this page is, inevitably, a “work in progress”
What happens if my partner is an EEA national ?
As at November 2017, the rights of partners of EEA nationals remain as they were. We are all waiting to see how the post Brexit position will evolve.
UKLGIG will not attempt to produce other than very general guidance in relation to Brexit, but we list below various interim guides from within the legal community which we understand will be updated as the UK and EU positions become clearer.
The most up to date and comprehensive self help guide that we have seen, was prepared for an open meeting titled “EU nationals – Understanding your options post Brexit” which took place at Islington Town Hall in London on 2nd November, 2017. The guide is authored by members of the immigration teams from Wilsons Solicitors and Wesley Gryk Solicitors, including Matthew Davies and Wesley Gryk who are themselves founders of UKLGIG.
The Immigration Law Practitioners Association (ILPA) have published a series of information sheets providing an overview of EU rights of residence and issues affecting citizens from European Economic Area (EEA) and Switzerland and their family members living in the UK in the context of Brexit.
See also the ILPA Brexit advocacy series e.g. “Securing EEA Nationals’ Residence Rights”, “Rights to Remain after Brexit”.
A series of free e-book guides has been produced by Colin Yeo [immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London]. These are aimed at EU and EEA nationals wanting to apply for residence documents in the UK on the basis of being workers, self-employed individuals, self-sufficient individuals or students, for making applications for documentation confirming your right to be in the UK under European law.
The FreeMovement website and blog edited by Colin Yeo contains a wealth of commentary about Brexit related issues e.g.
What is the UK proposing ? Analysis 27th June, 2017
Comprehensive sickness insurance – Who needs it ? 23rd January, 2017
The following headings describe the very basic principles of UK and EU rules as at Nov 2017
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, currently 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 are currently able to join them or stay with them in the UK. This includes a spouse, 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 currently 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. An EEA national does not need to have a registration certificate to live and work in UK, but please refer to the self help guide above for more comprehensive outline of the implications for EU/EEA nationals post Brexit.
A residence card will currently be granted to the spouse/civil partner of an EEA national regardless of their immigration status, but we would strongly advise you to obtain legal advice if your immigration status is in question. The situation is less straightforward for “durable” partners.
Dual British/EEA nationals
The definition of an “EEA national” now 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.
The interpretation of the 2006 Regulations is subject to debate and is being tested in the European Court* 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.
* The delivery of the opinion on Lounes Case C-165/16 is due on 14/11/17
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 currently 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.
Applications for family permits to enter the UK, or for the right to remain with an EU/EEA partner (a residence card) are currently not subject to the strict financial requirements imposed on applications to join or remain with a British partner. This is one of the significant differences (some would say an anomaly) between applications under EU Law and UK law. Under the post Brexit immigration rules, this is not expected to continue, but no indication has yet emerged as to when the UK government will seek to impose any change.