Family members of UK nationals exercising treaty rights – no time limit applies
10 December 2010
The rights are known as "treaty rights" – because they were conferred by the Treaty establishing the European Community. The Regulations provide for the entry into and residence in the UK of all EEA nationals and their family members, reflecting the rights listed in the European Council's Directive 2004/38/EC – the Citizens' Directive.
Family members of EEA nationals working or studying in the UK are entitled to enter the UK with their EEA national family members and to live here for as long as their family members are exercising the right to work or study within any other EEA member state (including the UK). This means that people who aren't themselves EEA nationals but are the family members of people who are - can come to the UK without having to satisfy the requirements of the UK's Immigration Rules.
This creates the phenomenon whereby family members of (non-UK national) EEA nationals have far less challenging rights of entry and residence than the family members of British Citizens. They have to meet the requirements of the Immigration Rules relating to spouses, children and other dependant relatives.
So how can British citizens turn themselves into EEA nationals in the eyes of the UK immigration authorities?
Back in 1992 the European Court of Justice (ECJ) concluded, in R v IAT and Surinder Singh ex parte Secretary of State for the Home Department (Case C 370/90) 7 July 1992, that when a British national travelled to another Member State of the European Union in order to work or in any other way to "exercise treaty rights" – he or she was entitled to re-enter and then to be joined by his or her family members, as if he were an EEA national.
This scenario is covered by Regulation 9 of the EEA Regulations, which enables the family members of a United Kingdom national to be treated as if they were the family members of an EEA national within the meaning of Article 2(1) of the Regulations, if the conditions in Regulation 9(2) are made out.
The Regulation 9(2) conditions are that:-
"a. The United Kingdom national is residing in an EEA State as a worker or self-employed person or was so residing before returning to the United Kingdom; and
b. If the family member of the United Kingdom national is his spouse……..the parties had entered into the marriage…and were living together in that (EEA) State before the United Kingdom national returned to the United Kingdom."
The question to be decided by the Asylum and Immigration Chamber of the Upper Tribunal in OB (Morocco) v Secretary of State for the Home Department  UKUT 420 (IAC) was whether it mattered if there was a gap between the time the UK National spent working in the EEA state and his or her return to the UK.
The Appellant OB, a Moroccan national, resided with his wife in the Republic of Ireland, where she worked from November 2006 to April 2007. Then in July 2008 the Appellant's wife returned to live permanently in Northern Ireland. The Appellant joined her and in September 2008 he applied under the EEA Regulations for a residence card as the spouse of a UK national who had been exercising treaty rights.
His application was refused because the Secretary of State for the Home Department didn't believe that the Appellant's wife had been working in the Republic of Ireland. He appealed, and the Immigration Judge hearing his case accepted that the Appellant's wife had been working in Ireland and exercising treaty rights. However the Immigration Judge nonetheless dismissed the Appellant's appeal because of the gap of 13 months between when the Appellant's wife stopped working in Ireland and her return to the UK.
The Upper Tribunal has found that the Regulations did not contain any requirement that a person exercising treaty rights in another EEA state had to return to the UK within any period of time in order for his or her family members to be able to invoke Regulation 9.
It considered European Union case law, in particular Eind (C-291/05) December 2007 and found that the case law did:
"…establish the principle that the right of entry afforded to the non-national spouse cannot be restrictively interpreted and Community law must be interpreted sufficiently broadly to promote the objective of ensuring protection for the family life of nationals of the Member States".
The Tribunal allowed the Appellant's appeal and directed that he should be granted a residence card pursuant to Regulation 17.