EEA Family Members and Initial Rights of Residence in the UK
Article 6 of the Citizens’ Directive, Directive 2004/38/EC, gives a right of residence for up to three months for Union citizens and their family members in possession of a valid passport who are not nationals of a Member State, providing these persons accompany or join the Union citizen.
This was transposed by the UK’s Immigration (EEA) Regulations 2006, Regulation 13. Regulation 13(1) transposes the rights of EEA nationals to reside for up to 3 months, and Regulation 13(2) transposes the right for family members of an EEA national residing in the UK/family members who have retained the right of residence following previous residence with an EEA family member. The only stated requirements are that the non-EEA national family member holds a valid passport.
However, this is neither how entrance works in practice, nor is the law so simple.
If, for instance, the Zambian spouse of a Spanish national arrived at a UK airport armed with only a passport, they would be likely to face difficulties showing that they had a right of residence for up to three months not subject to further conditions than 1) their familial relationship with an EEA national being genuine and 2) carrying a valid passport.
Directive 2004/38/EC recognises that some family members are not exempted from the requirement to obtain an entry visa – these countries are outlined in Council Regulation (EC) No 539/2001. This means that the Zambian national discussed should apply for leave to enter the UK as a visitor under the UK’s Immigration Rules, rather than relying upon the rights of their spouse to exercise free movement within the EU.
The difficulty with an EEA national’s family member obtaining a visitor visa is that the family member must be a genuine visitor: i.e. they must intend to leave, rather than to stay beyond the grant of their leave. In relation to the exercise of free movement under EU law, this may not fit with the intentions of the EEA national.
The CJEU’s recent decision in McCarthy showed that the family members from the list of countries referred to in Regulation 539/2001 do not always need to be in possession of a visa. If the Zambian national above had an EEA Residence card for, say, France, then they need not obtain a visit visa under UK Immigration law to enable them to enter the UK, or apply for an EU Family Permit.
It seems that the Family Permit route remains the easiest to enable entrance to the UK; this can be followed by an application for an EEA Residence Card without the inherent deception which would arise as the result of a visitor applying for a Residence Card having always intended to stay in the UK with their EEA national family member for a period of longer than three months.
For professional legal advice and assistance with applying for an EEA Family Permit, Residence Card or Permanent Residence Card, contact our EEA immigration barristers in London.