© Crown copyright 2013
This publication is licensed under the terms of the Open Government Licence v3.0 except where otherwise stated. To view this licence, visit nationalarchives.gov.uk/doc/open-government-licence/version/3 or write to the Information Policy Team, The National Archives, Kew, London TW9 4DU, or email: firstname.lastname@example.org.
Where we have identified any third party copyright information you will need to obtain permission from the copyright holders concerned.
This publication is available at https://www.gov.uk/government/publications/eea-family-permits-eun02/eea-family-permit-eun02
1. EUN2.1 What is an EEA family permit?
An EEA family permit is a document that we issue to make it easier for non-EEA family members of EEA nationals to travel with their EEA national or to join them in the UK. EEA family permits are issued under the Immigration (European Economic Area) Regulations 2006 and not the Immigration Rules. The permit is issued ahead of a person’s travel to the UK and is valid for six months and is free of charge.
As long as the non-EEA family member of an EEA national continues to meet the EEA Regulations they would not be considered as having ‘overstayed’ simply because the expiry date of their EEA family permit had passed.
An extended family member of an EEA national must obtain a Residence Card following the expiry of an EEA family permit or they will be considered an overstayer.
If the family member is not travelling with the EEA national or will not be joining them in the UK, they will not qualify for an EEA family permit and would need to apply for entry clearance under the Immigration Rules and pay the relevant fee if they want to come to the UK. An applicant who does not qualify for an EEA family permit can only be considered against the Immigration Rules once the specified fee is paid. Regulation 31 of the Immigration and Nationality (Fees) Regulations 2009 clearly says that if an application to be assessed under the Immigration rules is not accompanied by the specified fee, the application is not validly made. This is relevant to fiancés and proposed civil partners of EEA nationals as they are not considered as direct family members or extended family members under the EEA Regulations unless they can show they are a durable partner – see EUN 2.12.
If a family member who is travelling with, or is to join the EEA national in the UK requests a visit visa under the Immigration Rules, you should offer him (or her) the option of applying for a family permit under EC law free of charge.
2. EUN2.2 Where can an EEA family permit be issued?
EEA family permits may be obtained from any visa issuing post. It is not necessary for an applicant to be lawfully or normally resident in the country to apply.
3. EUN2.3 How quickly do I need to issue an EEA family permit?
Priority must be given to applications for EEA family permits. Wherever possible a decision should be made at the time it is lodged or after an interview is conducted.
However, the Regulations do not say that EEA family permits must be issued on the day that the application is made. The Directive does allow Member States to take reasonable measures to ensure that freedom of movement is not obtained by deception. Where you suspect a marriage of convenience or even ‘sham’ employment for the purpose of freedom of movement, further enquiries should be made and credibility may be tested. As long as delays are justifiable, applications can be tested until the ECO is fully satisfied.
4. EUN2.4 What are the requirements for issuing an EEA family permit?
In assessing an application from an EEA national’s direct family member, the entry clearance officer(ECO) should be satisfied that:
- the applicant is the family member of the EEA national (marriage certificate, birth certificate or other evidence of family link)
- the EEA national is residing in the UK in accordance with the EEA Regulations (as qualified person (exercising treaty rights) if more than 3 months) and the non-EEA national is joining them; or the EEA national intends to travel to the UK within 6 months and will have a right to reside under the Regulations on arrival, and the non-EEA national will be accompanying or joining the EEA national; and
- if applying as a spouse or civil partner, there are no grounds to consider that the marriage or civil partnership is one of convenience; and
- if applying as dependent family members (dependent children 21 and over and dependent relatives) they are dependent on the EEA national or the EEA national’s spouse or civil partner; and
- neither the applicant nor the EEA national should be excluded from the UK on the grounds of public policy, public security or public health.
In assessing an application from an EEA national’s extended family member, the ECO should consider whether:
- the EEA national is residing in the UK in accordance with EEA Regulations (as qualified person (exercising Treaty Rights) if more than 3 months) or has permanent right of residence;
- the applicant is an extended family member as defined in Regulation 8 (see Section EUN2.7 below for further information).
- refusing the application would deter the EEA national from exercising his/her free movement rights;
- in all circumstances, is it appropriate to issue a family permit.
It is important not to test overall intentions in assessing applications for an EEA family permit. Also, there is an initial right of residence for 3 months, which means that an EEA national does not have to be exercising a treaty right immediately on arrival in the UK.
If the applicant is the spouse/civil partner of the EEA national or a dependant child of either the EEA national or their spouse/civil partner is under 21 then they do not need to provide evidence of financial dependency and therefore this should not be requested from the applicant.
5. EUN2.5 What did the ECJ judgment on Metock say in relation to issuing EEA family permits?
The ECJ judgment on Metock in July 2008 prohibited Member States from having a general requirement for non EEA spouses of EEA nationals to be lawfully resident in another EEA member state before they can benefit from a right to reside under the EU Free Movement of Persons Directive. Therefore, we can no longer apply the lawful residence requirement (which was based on the case of Akrich) or our own domestic legislation (the Immigration Rules) to family members seeking first admission to the EEA from outside the EEA.
6. EUN2.6 Who are an EEA national’s core family members?
The family members of an EEA national (part 7 of the EEA Regulations) include:
- spouses or civil partners;
- direct descendants of the EEA national or their spouse/ civil partner under 21;
- dependent direct descendants of the EEA national or their spouse/ civil partner 21 and over;
- dependent direct relatives in the ascending line, for example parents and grandparents of the EEA national or their spouse / civil partner.
Financial dependence should be interpreted as meaning that the family member needs the financial support of the EEA national or his or her spouse/ civil partner in order to meet the family member’s essential needs in the country where they are present - not in order to have a certain level of income.
Important: If the applicant is the spouse or civil partner of the EEA national or a dependent child of either the EEA national or their spouse or civil partner is under 21 then they do not need to provide evidence of financial dependency and therefore this should not be requested from the applicant.
Where the applicant can show that he / she is a family member of an EEA national, an ECO must issue an EEA family permit if the requirements for issuing a family permit (see below) are met.
7. EUN2.7 Who are an EEA national’s extended family members?
Extended family members are more distant family members of the EEA national or of his/her spouse/civil partner who can demonstrate that they are dependent. Partners, where there is no civil partnership, who can show that they are in a ‘durable relationship’ are also considered to be extended family members.
Extended family member of an EEA national are defined in regulation 8 of the EEA Regulations.
An applicant may be considered for an EEA family permit as an extended family member if they are:
- residing in a country other than the UK and are dependent on the EEA national or are a member of the EEA national’s household; and
- accompanying the EEA national to the UK or wishing to join them there.
If the applicant does not meet both of these criteria, they can also be considered for an EEA family permit as an extended family member if they are:
- a relative of the EEA national or his spouse / civil partner and on serious health grounds, strictly require the personal care of the EEA national or their spouse/ civil partner; or
- a relative of the EEA national and would meet the requirements, (other than those relating to entry clearance) in the Immigration Rules for indefinite leave to enter the UK as a dependent relative of the EEA national were the EEA national present and settled in the UK; or
- a partner of the EEA national (other than a civil partner) and can prove to the ECO that they are in a durable relationship with the EEA national.
Where the applicant can show that he / she is the extended family member of an EEA national, the ECO may issue an EEA family permit if in all circumstances, it appears to the ECO appropriate to issue the EEA family permit. Therefore, an EEA family permit may be refused:
- where refusing the family member would not prevent the EEA national from exercising his / her Treaty rights or would not create an effective obstacle to the exercise of Treaty rights;
- if the applicant would have been refused entry to the UK on general grounds for refusal had they been applying for entry under the Immigration Rules;
- maintenance and accommodation requirements aren’t met, for example, the non-EEA national’s admittance would result in recourse to public funds.
Where the extended family member did not reside in the same country as the EEA national before the EEA national came to the UK, and where the EEA national provided financial support only to the extended family member, it is unlikely that the extended family member would be able to demonstrate that refusing to issue them with an EEA family permit would prevent the EEA national from exercising their Treaty rights in the UK. This is because the EEA national could continue to provide financial support to the applicant from the UK.
Family members of students (other than his or her spouse and dependent children) are entitled to join the EEA national for the initial 3 month period she or he is in the UK. Should these other family members wish to remain in the UK with the EEA national student for a period longer than 3 months they would need to apply in country for a Residence Card.
8. EUN2.8 What supporting documents should family members include in their application?
The Supporting documents for an EEA family permit page contains more information.
9. EUN2.9 How do I establish dependency under the EEA Regulations?
Direct family members must be wholly or mainly financially dependent on the EEA principal to meet his or her essential needs in order to qualify for an EEA family permit, (children under 21, spouses, civil partners do not need to provide any evidence to show dependency on the EEA national).
Extended family members must be wholly or mainly financially dependent on the EEA principal to meet his or her essential needs in order to qualify for an EEA family permit (durable partners do not need to provide evidence to show dependency on the EEA national). Emotional dependence to the EEA national would also be expected in order for an extended family member to qualify for an EEA family permit.
Whilst the following criteria are not in themselves grounds for refusal, they should be taken into consideration when assessing dependent relatives:
- Whether there are any other close relatives in the country of origin from whom the family member receives material support. If a family member receives funds from the EEA national but, for example, is living in the same household as another relative who provides their food and accommodation, the family member cannot be said to need the financial support of the EEA national in order to meet his / her essential needs.
- Whether the family member leading an independent life. For example, if a direct descendent 21 or over is married (and especially if they have children), it may be questionable as to whether the EEA national is supporting the essential needs of both the family member and their spouse and children. In such cases additional attention should be paid to ensure that the financial essential needs of the family are being met by the EEA national.
10. EUN2.10 What if I suspect a marriage / civil partnership of convenience?
The definition of ‘spouse’ and ‘civil partner’ in the EEA Regulations does not include someone who has entered into a marriage / civil partnership of convenience.
When a marriage / civil partnership of convenience is suspected, the burden of proof is high and rests with the ECO. However, in these cases the ECO is entitled to interview the applicant. Factors to consider include:
- an adverse immigration history;
- doubts about the validity of documentation;
- application follows soon after the marriage / civil partnership;
- no previous evidence of the relationship.
The ECO should not consider the following cases as marriages / civil partnerships of convenience where:
- there is a child of the relationship;
- there is evidence to suggest cohabitation.
11. EUN2.11 How do unmarried partners qualify for an EEA family permit?
An unmarried partner can be considered for an EEA family permit as an extended family member if they are in a durable relationship with the EEA national. The ECO will have to consider factors such as the length of cohabitation, joint finances, whether the couple haS children together to establish whether or not the relationship is durable. Each case must be looked at on its own merits. While regulation 12(2) makes provision for the issuing of a Family permit to extended family members (including unmarried partners), ECOs should be aware that only meeting the extended family member criteria is insufficient. Even where an ECO is satisfied that the applicant is in a ‘durable’ relationship, the ECO needs to go on to consider whether ‘in all the circumstances, it appears to the entry clearance officer appropriate to issue the family permit’ (Regulation 12(2)(c). Factors to be considered here are those set out at EUN2.7.
12. EUN2.12 Can fiancé(e)s, and proposed civil partners qualify for an EEA family permit?
Fiancé(e)s and proposed civil partners are not recognised as family members or extended family members in the EEA Regulations unless they can show they are in durable relationship. However, provisions have been made for fiancé (e)s and proposed civil partners of EEA nationals paragraph 290 of the Immigration Rules. Fiancé(e)s and proposed civil partners of EEA nationals applying under these Rules will have to pay the usual fee. For the purposes paragraph 290 of the Immigration Rules, an EEA national who is a qualified person in the UK is considered as present and settled if they have permanent residence as set out under schedule 2 of the EEA Regulations.
An application as the fiancé / proposed civil partner of an EEA national can only be considered if the specified fee has been paid. This is because you will need to assess the application under the Immigration Rules and not the EEA Regulations. An applicant who does not qualify for an EEA family permit can only be considered against the Immigration rules once the specified fee is paid. Regulation 31 of the Immigration and Nationality (Fees) Regulations 2009 clearly says that if an application to be assessed under the Immigration Rules is not accompanied by the specified fee, the application is not validly made.
Example: The fiancée of an EEA national working in the UK applies for an EEA family permit, free of charge. She does not qualify under the EEA Regulations and has not paid the specified fee to be considered under paragraph 290 of the Immigration Rules. There is therefore no valid application before the ECO. In this instance the ECO should refuse and first address why the applicant did not meet the EEA Regulations. Reference should then be made to Regulation 31 of the Immigration and Nationality (Fees) Regulations 2009.
13. EUN2.13 Can adopted children qualify for an EEA family permit?
The UK currently recognises adoptions that have taken place legally in the majority of EEA Member States (as they are either included on the designated list or because they are Hague Convention states). Switzerland is also on the designated list of recognised countries.
The exceptions to this are Hungary, which has signed the Hague Convention but not yet acceded to or ratified it and Liechtenstein (because it is not on the designated list, nor has it signed the Hague convention). In some (very rare) circumstances adoption orders made in Convention countries may not automatically be recognised in the UK. This is because only adoptions made as ‘convention’ adoptions are recognised (based on Article 17(c) agreements). In general, however, a child legally adopted in one of the recognised Member States should qualify for an EEA family permit provided that they meet the relevant criteria.
If the UK does not recognise a country’s adoption orders an EEA national would need to re-adopt the child in the UK (or in any country whose adoption orders are recognised by the UK) in order for the relationship to gain legal recognition in the UK. This would apply if, for example, an EU national adopted a child in a country not on the designated adoption list.
For further guidance see leaflet: Inter-country adoption and the immigration rules (PDF 232KB opens in a new window)
14. EUN2.14 Can family members of British citizens qualify for an EEA family permit? (‘Surinder Singh’ cases)
As a general rule, family members of British citizens do not qualify for an EEA family permit. Article 3 of the Directive essentially says that an EEA national cannot be considered as exercising freedom of movement in their own State -
This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.
However, where an EEA national has exercised a treaty right in another Member State as a worker or self-employed and they wish to return to their own State having exercised that right, certain provisions may apply in order for their non-EEA family members to qualify under the EEA Regulations.
A British national and his / her non-EEA national family members can only benefit from free movement rights if they meet the criteria established in the ECJ case of Surinder Singh. The case stated that nationals of a Member State who are exercising an economic Treaty right (that is, as a worker or self-employed person) in another Member State will, on return to their home state, be entitled to bring their non-EEA family members to join them under EC law.
Example: A British national is exercising an economic Treaty right in Germany and living with his non-EEA national spouse and children. On the British national’s return to the UK, his non-EEA national family members can apply for an EEA family permit to join him under EC law.
The Surinder Singh judgment is incorporated into the EEA Regulations in Regulation 9. Family members of British nationals who meet the requirements of Regulation 9 are treated as family members of EEA nationals for the purposes of the EEA Regulations.
Applications for EEA family permits must meet the following criteria:
- The British citizen must be residing in an EEA Member State as a worker or self-employed person or have been doing so before returning to the UK.
- If the family member of the British citizen is their spouse or civil partner, they are living together in the EEA country or must have entered into the marriage or civil partnership and have been living together in the relevant EEA country before the British citizen returned to the UK.
Because EEA nationals have an initial three months right of residence in the UK, there is no requirement for the British national to be a qualified person on arrival. Therefore, an EEA family permit can be issued to the non-EEA national family member of a British national even if they are only visiting the UK with the British national before returning to the Member State where they are resident.
The ECO should seek advice from European Operational Policy where unsure about the decision to be taken in applying the Surinder Singh judgment.
15. EUN2.15 Can family members of dual EEA nationals qualify for an EEA family permit?
Yes. A dual German / USA national can rely on their German nationality in order to exercise treaty rights and therefore their family members may apply for an EEA family permit. The applicant will need to show that:
- they are an EEA national through the issue of a passport/ID card and that
- they meet the requirements of the EEA regs (that is, are exercising Treaty rights, and so on.)
16. EUN2.16 Can family members of dual British / Irish nationals qualify for an EEA family permit?
Until 16 July 2012 persons who held British citizenship and who were also nationals of another EEA member state could rely on that EEA nationality to benefit from the terms of the Directive. This was because Regulation 2 of the 2006 Regulations did not preclude such dual national British citizens from benefitting from free right movements.
The definition of EEA national in Regulation 2 was amended on 16 July 2012 to preclude dual British citizens/EEA nationals from benefitting from the Directive and therefore also to preclude their family members from relying upon free movement rights.
The McCarthy judgment determined that a person who holds the nationality of the host Member State (in our case British nationality) and has never exercised their right of free movement and residence does not benefit from the terms of the Free Movement Directive. This is regardless of whether or not they hold dual nationality with another member state. This means that family members are also unable to derive a right of residence under the Directive on their basis of their relationship to such a national. British citizens can only acquire free movement rights in certain scenarios and so are in general prevented from circumventing the requirements of the Immigration Rules when sponsoring entry to the UK of family members.
Where a person has applied on the basis that they are a dual British citizen/EEA national on or after 16 July 2012 then the application must be refused unless the person either:
- Meets the provisions of regulation 9 (which gives effect to the ECJ case of Surinder Singh or
- Comes within the scope of the transitional arrangements set out below.
The provisions of the transitional arrangement apply where a person:
- Has a right to permanent residence in the UK in reliance on the previous definition on the 16 July 2012 or
- Has a right to reside in the UK on 16 July 2012 and on 16 October 2012 either:
i. Holds a valid registration certificate or residence card issued under the 2006 Regulations, or ii. Has made an application under the 2006 Regulations for a registration certificate or residence card which has not yet been determined iii. Has made an application under the 2006 Regulations for a registration certificate or residence card which has been refused and in relation to which an appeal under regulation 26 could be brought whilst the appellant is in the UK or is pending.
The transitional arrangements apply until:
- The six month validity period to enter the UK in reliance on a family permit has expired and the family has not entered the UK.
- Any appeal can no longer be brought
- Any appeal is dismissed, withdrawn or abandoned
- The person ceases to be the family member of the EEA national
- Any right of permanent residence is lost as a result of absence from the UKThis means that once a right is lost, appeal rights against a claimed right are exhausted or a family permit is not used, reliance can no longer be placed by that person on the previous definition of an EEA national.
17. EUN2.17 Can EEA family permit applicants be DNA tested?
DNA tests may be used as a last resort, but only where all other means of establishing the relationship have been exhausted and there is demonstrable doubt in respect of the authenticity of the claimed relationship.
18. EUN2.18 Can I invite an applicant in for interview?
The ECO can invite an applicant in for interview as long as any delay or deferral can be justified. The ECO should consider inviting an applicant for interview in the following circumstances:
- Strong grounds to doubt applicant is related as claimed to EEA national
- Strong grounds to doubt that applicant is genuinely dependent on the EEA national (except spouses and descendants under 21)
- Strong grounds to doubt that EEA national is in, or will be going to, the UK
- Strong grounds to doubt that the EEA national is, or will be, a qualified person
- Strong grounds to suspect the EEA national intends to ‘drop off’ the applicant and return to the country of origin
- Strong grounds to suspect a marriage of convenience
- Strong doubts about identity of applicant
- Strong grounds to consider refusing on the basis of Public Policy, Public Health or Public Security.
19. EUN2.19 When should I refer / defer an application to UKBAIG or UKBA?
If, after consulting this guidance, the ECO is still unsure as to the appropriate course of action to take when assessing an EEA family permit application, the ECO should contact European Operational Policy for advice.
Applications should be referred to the UKBA Euro Casework in the following circumstances:
- Where a refusal is considered on the grounds of public policy, public security or public health in accordance with Regulation 21. The provision for refusal of an EEA family permit on public grounds is distinct from the provision in the Immigration Rules for refusal on non-conducive, criminal conviction and medical grounds. The level of evidence required for refusals in these cases is high. A person’s previous criminal convictions alone do not justify a refusal.
- Where an applicant is the subject of a deportation or exclusion order. The applicant must apply first for the order to be revoked. If successful, upon application for the family permit, the case must be referred to Euro Casework.
- Where further advice is needed after consulting entry clearance guidance.
Details of how to send referrals to the Euro Casework can be found in OPI 225. Emails should be marked ‘Urgent. Non-EEA family member of an EEA National’.
20. EUN2.20 What are the visa endorsements for EEA family permits?
The applicant should be issued a Category D Vignette with one of the following endorsements:
D: ‘EEA FP: FAMILY MEMBER: [TO ACC ‘Name of EEA national’]
D: ‘EEA FP: FAMILY MEMBER: [TO JOIN ‘Name of EEA national’]
The EEA family permit should be valid for 6 months from the date of issue and may be used for multiple entries to the UK during that period. It should carry the name of EEA national in the ‘add endorsement’ field and should indicate whether the non-EEA national will be accompanying or joining the EEA national in the UK.
You should explain to the applicant that:
- The permit will indicate to the Immigration Officer that the holder is the family member of an EEA national living in the UK in accordance with the Regulations* the revocation is justified on grounds of public policy, public security or public health; or
the holder is not at that time the family member of an EEA national living in the UK in accordance with the Regulations.
- After entry to the UK the holder can apply to the Home Office for a residence card. A residence card (an endorsement in the holder’s passport) enables the holder to re-enter the UK without the need for an EEA family permit for as long as they are the family member of an EEA national with a right of residence in the UK. A residence card, which is normally valid for five years, is simply a confirmation of the holder’s right of residence in the UK - it is not a compulsory requirement. See further guidance on applying for residence cards.
21. EUN2.21 Applications from direct descendants under 18
In order to protect the interests of minors, ECOs should ensure that they have established parental responsibility for children applying for EEA family permits as direct descendants of EEA nationals, particularly where one or both parents will not be accompanying the child to the UK. In these cases it is reasonable to ask for the written consent of the child’s parent(s) or legal guardian(s) for the child to travel before issuing the EEA family permit.
22. EUN2.22 Refusal on grounds of public policy, public security or public health
Please note: An applicant who applies for an EEA family permit, but who may be considered as a threat to Public Policy, Public Security or Public Health cannot be refused under the General Grounds for Refusal of the Immigration Rules. This is because the application is made against the EEA Regulations and therefore the refusal would need to be against these Regulations.
EEA nationals or non-EEA national family members may also be refused admission to the UK on grounds of Public Policy, Public Security or Public Health. More detailed information can be found in ECI Chapter 8. If ECOs are concerned that an application may fall to be refused, they must refer to the Euro Casework following the instructions in OPI 225.
23. EUN2.23 Suggested refusal wordings
23.1 i. The applicant does not provide any (or adequate) evidence to support his claim to be the family member of an EEA national
‘In view of your failure to provide satisfactory evidence, I am not satisfied that you are the family member of an EEA national in accordance with Regulation 7 of the Immigration (European Economic Area) Regulations 2006.’
23.2 ii. The EEA national is not in, or will not be going to, the UK
‘I am not satisfied that your EEA national family member is residing in the UK, or will be accompanying you to the UK within six months of the date of the application, in accordance with Regulation 12(a) of the Immigration (European Economic Area) Regulations 2006.’
23.3 iii. The applicant is not genuinely dependant on the EEA national or his / her spouse
Family Members: This does not apply to spouses / civil partners or children aged under 21, except in the case of a student who has been resident in the UK for more than three months, where the children of any age must also be dependent.
‘In order to qualify as a family member you are required to be dependent on the EEA national but I am not satisfied that you are dependent as claimed. I am therefore not satisfied that you are a family member in accordance with Regulation 7 of the Immigration (European Economic Area) Regulations 2006.’
Extended Family Members:’I am not satisfied that you are dependent on the EEA national or a member of his/her household. I am therefore not satisfied that you are an extended family member in accordance with Regulation 8 of the Immigration (European Economic Area) Regulations 2006.’
In cases involving extended family members - the applicant may have provided evidence of dependency or that they lived as part of the EEA national’s household in an EEA state prior to coming to the UK. However, you must also be satisfied that a refusal of the application would result in EEA national being prevented from exercising his or her free movement rights, and that in all circumstances, is it appropriate to issue a family permit:
‘I have undertaken an extensive examination of your personal circumstances in accordance with Regulation 8 of the Immigration (European Economic Area) Regulations 2006 but I am not satisfied that there are sufficient grounds for issuing you with an EEA family permit for the following reasons…’
23.4 iv. The applicant claims to require the personal care of the EEA national on serious health grounds:
‘Your case has been considered under Regulation 8(3) of the Immigration (European Economic Area) Regulations 2006. This area of the Regulations refers to a relative of an EEA national or their spouse / civil partner who may be granted entry if they require the strict personal care of the EEA national or their spouse / civil partner on of serious health grounds.
In your case you have [reasons, for example, no evidence of serious health issues / the need for care by the EEA etc.]”
23.5 v. The applicant claims to be in a ‘durable relationship’ with the EEA national
‘You have applied for an EEA family permit as a person who is in a durable relationship with an EEA national. Your application has been considered in accordance with Regulation 8(5) of the Immigration (EEA) Regulations 2006 but you have failed to prove that you are in a durable relationship with an EEA national.
In cases where a person is seeking to be considered as an unmarried / same-sex partner of an EEA National, we apply the same criteria as that stipulated under the Immigration Rules for a person seeking leave to enter as the unmarried / same sex partner of a British or Settled person.
In your case you have [reasons, for example, no intention to live together, no evidence of 2 year durable relationship etc.]’
23.6 vi. The EEA national is not a qualified person because there is no evidence of Treaty rights being exercised:
‘You have failed to provide evidence that your EEA national family member is a qualified person in accordance with Regulation 6 of the Immigration (European Economic Area) Regulations 2006. I am, therefore, not satisfied that your EEA national family member is residing in the UK in accordance with the Immigration (European Economic Area) Regulations 2006.’
Please note: because of the initial right of residence, the ECO cannot refuse someone on the basis that that their EEA national family member will not be a qualified person in the UK on arrival. However, if the ECO is satisfied that the EEA national has been in the UK for longer than three months, the ECO must be satisfied that the EEA national is a qualified person.
23.7 vii. The applicant is a party to a marriage of convenience
‘The definition of ‘spouse’ in the Immigration (European Economic Area) Regulations 2006 does not include a party to a marriage of convenience. I am satisfied that you are party to a marriage of convenience and are therefore not the family member of an EEA national in accordance with Regulation 7 of the Immigration (European Economic Area) Regulations 2006.’
23.8 viii. Extended Family Members
‘You have applied for an EEA family permit as the extended family member of an EEA national. However, I am not satisfied that you are an extended family member in accordance with Regulation 8 of the Immigration (European Economic Area) Regulations 2006.
Only those family members referred to under Article 2 of the Directive 2004/38/EC have an automatic right to join or accompany an EEA family member to another member state when that EEA national is exercising a Treaty right.
Article 3 of Directive 2004/38/EC provides the basis for a member state to consider other relatives, such as ‘extended family members’ and determine the terms of entry and residence to such ‘beneficiaries’ in accordance with their own domestic legislation. (Article 3(2)).
The UK has transposed the terms of Article 3 into Regulation 8 of the Immigration (European Economic Area) Regulations 2006. As Regulation 8(4) makes clear, the UK is allowed to set terms on when it will accept extended family members and allow them to reside in the UK as family members of an EEA national. Your application has therefore been considered in accordance with (insert para) of the Immigration Rules. I am not satisfied that you qualify under this paragraph because:…’
23.9 ix. The British citizen is not exercising a Treaty right in a Member State (Surinder Singh)
‘You have applied for admission to the UK in accordance with Regulation 9 of the Immigration (European Economic Area) Regulations 2006 as the family member of a British national who has been / was previously working or self-employed in another Member State. However, in view of your failure to provide documentary evidence that the British citizen is / was working or self-employed in another Member State prior to returning to / coming to the UK, I am not satisfied that the Regulations apply in this case.’
23.10 x. The applicant is the spouse / civil partner of the British national but is not/was not living with the British national in the EEA State (Surinder Singh)
‘You have applied for admission to the UK in accordance with Regulation 9 of the Immigration (European Economic Area) Regulations 2006 as the family member of a British national who has been / was previously working or self-employed in another Member State. However, you are not living with the British national in (the EEA State), nor were you living together in (the EEA State) before the British national returned to the UK. Therefore, I am not satisfied that the Regulations apply in this case.’
24. EUN2.24 Do applicants for EEA Family Permit get a full right of appeal?
An applicant for an EEA family permit has a full right of appeal against refusal under the EEA Regulations, as it constitutes an ‘EEA decision’, which is a decision under the EEA Regulations concerning a person’s entitlement to be admitted to the UK. A person claiming to be the family member of an EEA national may not, however, appeal under the EEA Regulations where they have not produced any evidence of the EEA national family member’s nationality, or, that they are related, as claimed, to the EEA national
Previously there was no provision in the Regulations stipulating the conditions to be met in order for a person claiming to be a durable partner to bring a right of appeal against an EEA decision. This was because the Court in the case of Abdullah EWHC 1771 (15 June 2009) found that regulation 26(3) did not apply to durable partners of EEA nationals because they were neither ‘family members’ nor ‘related’ to the EEA national. This meant that durable partners could appeal against an EEA decision in all cases, without needing to provide any evidence as to their status.
From 8 November 2012 the Regulations are amended to insert regulation 26(2A). Regulation 26(2A) will provide that in order for a person claiming to be the durable partner of an EEA national to appeal against an EEA decision they must provide:
(a) a passport; and(b) either –
i. an EEA family permit; orii. sufficient evidence to satisfy they are in a relationship with that EEA national.
Sufficient evidence of a person claiming to be the durable partner of an EEA national could include (but is not limited to) one or more of the following:
Evidence of cohabitation. For example bank statements/utility bills in joint names at the same address.
Evidence of joint finances or joint business ventures. This may include tax returns or business contracts.
Evidence of joint responsibility for children such as a birth certificate or custody agreement demonstrating that the two parties claiming to be in a durable relationship are cohabiting and sharing responsibility for children.
In addition, any photographs provided of the couple may add weight to the evidence listed above.
ECOs should note that the applicant is not required to demonstrate the durable nature of the relationship in order for the refusal to attract an appeal right which requires a higher level of evidence to be provided. Rather the applicant is only required to provide evidence that they are in a relationship the relevant EEA national.
Like appeals against entry clearance decisions, the right of appeal would be heard whilst the appellant remains outside of the UK.