Immigration – European Applications (EU & EEA)

European Applications (EU & EEA)

Under EU law, and incorporated into UK immigration law, all EEA nationals enjoy an initial three-month right of residence and EEA nationals (except Croatians, in respect of which there are certain work restrictions) have a right to reside in the UK as long as they are ‘exercising Treaty Rights’.

Brexit – ‘What next?’

The UK is scheduled to leave the EU on 29 March 2019 but all existing rights under EU law remain until that date. Furthermore, the UK Government has explained that, ‘There will be no change to the rights and status of EU citizens currently living in the UK until 30 June 2021, or 31 December 2020 if the UK leaves the EU without a deal’. It is therefore important for EEA nationals and their family members to make sure they are fully up to date with the latest developments regarding Brexit.

On 30 March 2019 the Government is set to implement the EU Settlement Scheme application process. The scheme is open to EU citizens who are living in the UK (providing they hold a valid passport) and non-EU citizens who have been issued with a residence card or permanent residence card as the family member of an EU national (on the basis of an application made on or after 6 April 2015) to apply for ‘settled’ or ‘pre settled’ status in the UK.  EU citizens who have already been issued with a permanent residence card may also apply for settled status by applying to the EU settlement scheme. The process for applications is online and is made available via an app for those who have access to an android mobile phone. The service will be free.

The deadline to apply is 30 June 2021, however, if the UK leaves the EU without a ‘deal’ the deadline will be 31 December 2020.

At the moment the UK remains a member of the EU and this means that EU citizens and non-EU citizen family members continue to enjoy all the rights and privileges that come with its membership of the EU. This entitles an EU citizen or the family member of an EU citizen to apply for a permanent residence document (i.e. indefinite stay in the UK), once they have acquired 5 years continuous residence and have done so in accordance with EU treaty rights, i.e. by working or studying etc.  Importantly, Home Office guidance states that EU citizens or their family members who wish to apply for British citizenship should apply for a permanent residence card to prove that they hold that status before applying. Additionally, they must also have acquired permanent residence at least 12 months before applying. For example, an EU citizen who arrived in the UK in 2010 and lived and worked here for 5 continuous years would be deemed to have acquired permanent residence in 2015 and can therefore apply for British citizenship immediately after an application for permanent residence.

The same will not apply for those applying under the Settlement Scheme. For instance, an EU citizen or their family member may have acquired permanent residence more than 12 months ago but under the Settlement Scheme they will have to wait a further 12 months after applying until they can apply for British citizenship. It is also of importance to note that unlike the Settlement Scheme, permanent residence gives the individual a physical document which is proof of their right to work in the UK, as well as other things such as renting property and opening a bank account, which is becoming ever more difficult in the so called ‘hostile environment’.

We therefore advise individuals who are eligible to apply for permanent residence to do so at the earliest and most advantageous opportunity. This is especially relevant in the context of those individuals who wish to apply for naturalisation as a British citizen afterwards (if they can demonstrate that they have been free of immigration restrictions for 12 months). Furthermore, it is unclear how the Home Office will cope with processing applications from millions of EU citizens and their family members and there is likely to be glitches with the new system as it gets up and running.

‘Exercising Treaty Rights’

‘Exercising Treaty Rights’ means any of the following:

• Employment (including job seeking)
• Self-Employment
• Study
• Economic Self-Sufficiency

Immigration rules state that students and the economically self-sufficient are required to have comprehensive sickness insurance before they can effectively exercise their Treaty Rights.

Once EEA nationals have exercised Treaty Rights in the UK for a continuous period of five years they gain a permanent right of residence not dependent on the exercise of any Treaty rights (see below).

Registration certificates

EEA nationals can apply for a Registration Certificate to prove their right to live and work or study in the UK. Although there is no requirement for EEA nationals to obtain a Registration Certificate, as it only confirms a pre-existing right to reside and work in the UK, a registration certificate proves the holder’s entitlement to reside in the UK, saving the holder from having to prove their right to reside by providing evidence of work, etc. A Registration Certificate is normally issued for five years.

Temporary incapacity to work/involuntary redundancy

A person who has worked in the UK but temporarily ceases to work will not necessarily cease to be a person having the right to reside. If a person cannot work due to involuntary redundancy, accident or illness, maternity leave or other unavoidable reasons, they do not lose the right to reside, provided they have worked for a year before the break and it is their intention to resume work as soon as possible.

Generally, a person would not be expected to have such a break from work of longer than six months but longer breaks in the exercise of Treaty rights can be justified.

Family members

EEA nationals can bring their family members to live with them in the UK. Non-EEA national should apply for a Family Permit in order to enter the UK and it is valid for six months. Once in the UK, they can apply for a Residence Card which is valid for five years.

Family members are defined as spouses, children under the age of 21 and direct relatives ‘in the ascending line’ where they are financially dependent on the qualified person. More distant relatives or long-term partners can be considered ‘extended family member’ if the UKVI is satisfied certain requirements are met and they treated the same as family members. Extended family members need to show that they were financially dependent on the EEA national or were a member of their household before coming to the UK. ‘Durable partners’ need to show they have lived together for at least two years before being accepted as extended family members.

Retention of rights in the breakdown of a relationship or death of an EEA national

Non-EEA family members are permitted to remain in the UK in certain circumstances in the event of the death of the EEA national or if the relationship breaks down. EEA law provides ‘retention rights’ for a spouse/family member in these situations if certain criteria are met. For example, in the event of divorce, the non-EEA national will not lose their right of residence if they can show they lived with the EEA national in the UK for at least 1 year and were married for at least 3 years before divorce proceedings were started and the EEA national was effectively exercising Treaty Rights at material times (the non-EEA national will also need to show they are working, studying, etc., on becoming divorced).

Derivative rights of residence

UK immigration law now recognises ‘derivative rights of residence’ established in European Court judgments. Parents and carers of EEA children (and children that were the children of EEA workers when they started school) can apply for derivative rights of residence in order to come to or remain in the UK in order to look after the child. These rights are not automatic and need to be applied for by satisfying the UKVI certain factors are present and requirements met. Derivative rights do not lead to a permanent right of residence.

Permanent rights of residence (also called settlement)

EEA nationals and their family members automatically gain a permanent right of residence once they have resided in the UK continuously for five years if they have been living ‘in accordance with [the EEA] Regulations’ throughout. Again, there is no need to apply for a document certifying a permanent right of residence and such a document proves the right, not gives the right.

Our service

Our EU and EEA application solicitors can assist with all stages of the process and fully prepare the application on behalf of the client. We will advise on the merits at the outset and make clear the legal and evidential requirements so that the application is set up on the best footing from the very start. We of course advise on all the supporting documents and evidence required and take the client through the immigration process from start to finish.

Our expert EU and EEA application lawyers can assist with templates for documents specified by the Rules and deal with third parties where necessary and we aim to make the whole process as smooth as possible. If there are any issues in your immigration matter you will know before applying and we can help best overcome them. In short, we prevent mistakes and ensure any application meets the requirements of the Immigration Rules. We are here to help you safely navigate your way through the UK immigration process.

Contact our EEA and EU Immigration Solicitors London, UK

Qore Legal  is based in Central London and we assist clients from throughout England. We also specialise in immigration services for Chinese companies and individuals. For more information on EEA rights of residence, please contact an EU and EEA application solicitor at Qore Legal call 020 3946 2560, email info@qorelegal.co.uk or use our online contact form.