Following the ruling in case C-202/13 McCarthy, the Immigration (European Economic Area) (Amendment) Regulation 2015 SI No 694 came into force.
The effect of these amendments is that non-EEA family members of EEA nationals who hold a valid genuine residence card, issued to them as the family member of an EEA national who is exercising free movement rights in another EEA State (i.e. not in EEA relative's Member state of nationality) under Article 10 of Directive 2004/38/EC (the 'Free Movement Directive'), will be able to travel to the UK without the need to obtain an EEA Family Permit, when accompanying or joining an EEA national who is exercising Treaty rights, i.e. has a right of residence in the UK.
However, it is essential to mention that the Directive does not apply to Switzerland under the EU/Swiss Agreement on the Free Movement of Persons. The family members of EEA nationals residing in Switzerland will therefore be required to obtain an EEA Family Permit.
It is also worth mentioning that although the purpose of this Regulation is to allow the non-EEA national family member of an EEA national to travel to the UK without the requirement to obtain an EEA Family permit, in order to be admitted to the UK, non-EEA nationals must demonstrate that they have right of admission under EU law. In addition to a valid residence card, non-EEA nationals must provide their valid passport and evidence that they are the family member of an EEA national, such as a marriage certificate or birth certificate. It is important to be aware that if non-EEA nationals are not travelling with but joining their EEA national family members in the UK, they will need to provide the following additional evidence upon their arrival in the UK:
- evidence that the EEA national is in the UK; and
- evidence that they have a right of residence in the UK.
It is recommended that applicants should seek detailed advice in relation to evidence to be provided upon their arrival, in order to avoid being refused at the border. If the Border Officer is not satisfied that that the non-EEA national has a right of admission, they will not be allowed to enter the UK.
Our general immigration team will be pleased to assist with EEA applications.