Last updated: April 2020
What happens if my partner is an EEA national?
The rights of partners of EEA nationals will remain as they were, until the end of the transition period, i.e. 31/12/2020. Some applications can be made until 30/06/2021 to benefit from the transitional provisions in force. After this period, most applications will be considered under the UK Immigration Rules applicable to family members of non-EEA nationals.
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.
- Comprehensive guide, prepared for a recent meeting “EU nationals – understanding your options post-Brexit” organised by Islington In Europe with Wilsons Solicitors and Wesley Gryk Solicitors, at Islington Town Hall on 6th June 2019. The latest guide, titled “EU Citizen Rights and Settled Status – What you need to know” is authored by members of the immigration teams from the above firms, including Matthew Davies and Wesley Gryk who are themselves founders of UKLGIG.
- Here for Good is a charity established to empower EU, EEA and Swiss nationals living in the UK, by making them aware of the action they can take during the Brexit process to protect their own and their families’ rights – whether they have been here for years or arrived just weeks ago. Very useful Self-help guide.
- 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 under European law or under Appendix EU of the Immigration Rules.
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 details on the exercise of treaty rights is given in the EEA & Swiss nationals home office guidance.
Applications by family members
The partners of EEA nationals who are exercising their treaty rights in the UK, or have acquired permanent residence under EEA law, currently can apply under the simpler regime of EEA laws rather than domestic UK law, so that the UK Immigration Rules do not apply.
However, EEA laws will no longer apply after the transitional period (31/12/2020 and in some cases 30/06/2021) and UK Visas and Immigration (UKVI) has already published new UK rules applicable to EEA nationals and their family members.
Under the EEA laws, the family of an EEA national who can show that they are exercising treaty rights (meaning that they are workers, students, self-employed or self-sufficient persons and in some circumstances jobseekers) or that have acquired the right of permanent residence (meaning they can reside in the UK without time limits) 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 EEA law. Durable relationships are currently interpreted by the Home Office to mean those with two years’ prior cohabitation just like the UK unmarried partners rules. However, it is possible to demonstrate that your relationship is ‘durable’ even if you don’t have two years’ cohabitation.
Applicants can currently apply to enter the UK as the family member of their EEA sponsor by means of a family permit. Spouses and civil partners are considered ‘family members’ whilst unmarried partners are considered ‘extended family members’.
Extended family members must provide more evidence to show that their relationship is genuine, and cohabitation is generally required.
Family permit applications 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) if they are married or in a civil partnership, whilst unmarried partners should use form EEA(EFM) 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 this self help guide 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.
Spouse and civil partners who are outside the UK can choose to apply for a family permit under Appendix EU instead of a family permit under the EEA laws. In this case, the EEA national must have already obtained pre-settled or settled status.
Similarly, family members who are already in the UK can apply for pre-settled status if their spouse or civil partner has already obtained pre-settled or settled status. They can also apply at the same time.
Unmarried partners cannot apply for pre-settled status unless they have already obtained an EEA family permit or EEA residence card.
Dual British/EEA nationals
Following the judgment on the Lounes case given on 14/11/2017, the Home Office has amended the definition of an ‘EEA national’ in the Regulations. The definition, effective from July 2018, will now extend to dual British and EEA nationals provided that they naturalised as British following a period of residence in the UK under the Regulations (and can show that they were a ‘qualified’ person during that period, and have continued to be). It does not extend to someone who acquired their EEA nationality after becoming British, or to dual nationals who have never exercised free movement rights.
Family members of British citizens who have spent some time living with them in another EEA country, can return on the basis of the ‘Surinder Singh’ route. This route will probably be closed by 29/03/2022.
EU law and fiancés/proposed civil partners
European law does not provide for fiancés/proposed civil partners. If the EEA national has acquired permanent residence and has a document certifying this, the partner can currently use the fiancé/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. Alternatively, they can apply as unmarried partners if they satisfy the requirements.
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 between applications under EU Law and UK law. Under the post Brexit immigration rules, this is not expected to continue, and non-EEA family members will be able to apply under Appendix EU of the Immigration Rules depending on when their relationship with the EEA national started and depending on the residence status of the EEA national.
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