Under the EEA Regulations, which transpose EU free movement rights into UK law, non-EEA nationals who are the family members of British nationals may obtain a right to enter and reside in the UK if they previously lawfully lived as a family member of an EEA national (together with the relevant family member, who is a UK national) in one of the EEA countries. This route allows non-EEA family members of UK nationals to come to the UK on the basis of favourable EU free movement laws rather than the harsher and more complicated provisions of the UK Immigration Rules.
Brexit has not affected this immigration category, and although the rights under this route are not referred to in the Withdrawal Agreement, they have been, and still are, protected domestically in the UK, along with the other free movement rights of EEA nationals and their family members.
However, in recent years the requirements of this route have been the subject of debates and court rulings. The European Court of Justice has assessed the “genuineness” of joint residence in another EEA member state as the central requirement, and implied that any period of qualifying residence was sufficient for that to be established.
In contrast, the EEA Regulations mentioned above treat qualifying residence and whether it is “genuine” as separate requirements. The Regulations list various factors to be considered when establishing “genuineness”, including (but not limited to) the length of time the family spent together in an EEA state. The Immigration Law Practitioners Association has recently recommended that the Regulations should be amended to simply require “genuine” residence, without reference to any additional factors such as a time period.
A recent Court of Appeal decision has added further confusion to this debate. The non-EEA wife and two children of a British national were seeking entry to the UK on the basis of having previously resided together with their husband and father in Bulgaria, where they had obtained residence permits. However, they were eventually refused admission to the UK by the Home Office. After a series of appeals from both sides, the Court of Appeal finally upheld the Home Office’s initial decision.
The main reasons for that conclusion were that:
- The residence in Bulgaria was considered “not genuine” because it was not long enough (it lasted for just about 3 weeks), even though there is no strict legal guideline regarding what term of residence is sufficient; and
- The purpose of residence in the EEA was “to circumvent the UK immigration laws to which the appellants would otherwise have been subject”. This conclusion was initially made by the Home Office and supported by the Court of Appeal because of what the husband and father of the family said at an immigration interview. He stated that he only went to Bulgaria in order to later bring his wife and children to the UK by way of this immigration application.
To conclude, having an EEA residence permit does not mean a right to reside in the UK is granted automatically – instead, immigration authorities and courts consider family circumstances in great detail. This court decision has placed further restrictions on this kind of application, with the lengths of residence now playing a vital role despite the controversy around this issue among legal professionals.
The true intentions of all individuals involved are also of the utmost importance, as well as how those intentions are explained to immigration officials.
Gherson have extensive experience in acting for non-EEA family members of UK nationals. If you have any questions or queries in relation to this type of application, please do not hesitate to contact us.
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.
©Gherson 2020
Paralegal in our Complex Case team