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1. EUN1.1 The European Legislation
The Free Movement of Persons Directive 2004/38 EC sets out the right of EEA nationals and their family members to move and reside freely within the territory of the EEA Member States. The Immigration (European Economic Area) Regulations 2006 (‘The Regulations’) (as amended) transpose the Free Movement Directive into UK law. The Regulations describe the rights of EEA nationals and their family members to enter and reside in the UK.
2. EUN1.2 Who are EEA nationals?
Nationals of the following countries are EEA nationals:
- Bulgaria (2)
- Czech Republic
- Iceland (1)
- Liechtenstein (1)
- Norway (1)
- Romania (2)
Note 1: Iceland, Liechtenstein and Norway are not Member States of the European Union, but do form part of the EEA. Their nationals enjoy the same free movement rights as EU nationals.
Note 2: Bulgarian and Romanian nationals who come to the UK to work will need permission to work before starting any job (see EUN1.6 below)
In 2002, the Agreement between the European Community and its Member States and the Swiss Confederation on the Free Movement of Persons came into force. This confers on Swiss nationals and their family members the same rights as those enjoyed by EEA nationals and their family members. (See EUN04 for advice on the Swiss Family Permit)
3. EUN1.3 What rights do EEA nationals have to live and work in the UK?
EEA nationals are free to enter the UK subject to a passport or identity card check. However, where an EEA national is the subject of an extant deportation order, the EEA national must still apply for revocation of the order if they wish to return to the UK. If the deportation order is revoked the EEA national may lawfully re-enter the UK. (For details about how a deportation order is revoked, see ECB4.3.
A deportation order may be invalid if the subject has become the family member of an EEA national exercising Treaty rights in the UK. Where there is reason to believe that this is the case, the case should be referred to the relevant casework unit who will liaise with European Casework.
EEA nationals are entitled to reside in the UK for an initial period of three months without needing to exercise a Treaty right. An EEA national who will be in the UK for more than three months will have a right of residence for as long as they remain a qualified person.
A qualified person is an EEA national who is in the UK and exercising a Treaty right as any of the following:
- Jobseeker - The EEA national must be able to show evidence that they are seeking employment and have a genuine chance of being engaged, for example, evidence of job interviews, evidence of qualifications, registration with Job Centre / recruitment agencies.
In most circumstances we would expect an EEA national to be economically active within six months. It is highly likely that an individual claiming a right of residence as a job-seeker will also be exercising treaty rights as a self-sufficient person.
- Worker - The EEA national must be able to show evidence that they are in full-time or part-time employment, for example, copy of a contract, pay slips.
If an EEA national temporarily ceases employment, they can still be considered a qualified person under the following circumstances:
- They are temporarily unable to work as the result of an illness or accident;
- They are involuntarily unemployed, having been employed in the UK, are registered as a jobseeker with the relevant employment office, and either:* were employed for one year or more before becoming unemployed;
- have been unemployed for no more than six months; or
can provide evidence that they are seeking employment in the UK and have a genuine chance of being engaged.
- They are involuntarily unemployed and have started vocational training; or
- They have voluntarily stopped working and started on vocational training related to their previous employment.
- Self-employed person - The EEA national must be able to show evidence that they have established themselves in the UK as a self-employed person, for example, a copy of business accounts or an accountant’s letter.
- Self-sufficient person - The EEA national must be able to show evidence that they have sufficient resources not to become a burden on the social assistance system and have comprehensive sickness insurance cover. There is no fixed amount that is regarded as ‘sufficient resources’. The personal situation of each applicant must be taken into account.
A retired person would qualify as self-sufficient if they can demonstrate that they are in receipt of a pension and / or have sufficient funds not to become a burden on the social assistance system.
An EEA national can qualify as self-sufficient based on the income of their non-EEA family member.
- Student - The EEA national must be able to show evidence that they are enrolled at an establishment included on the DFES Register of Education and Training providers, for example, a letter from a college or university confirming that the EEA national is enrolled on a course and stating its duration.
The register can be found at: Department for Innovation, Universities & Skills - The Register of Education and Training Providers
4. EUN1.4 Can an EEA national claiming benefits still be a qualified person?
An EEA national claiming benefits in the UK would continue to be considered a qualified person if they were:
- A worker in receipt of top-up funds or tax credits for low income
- An EEA national working in the UK who has become temporarily unemployed (due to incapacity or involuntary unemployment) and is claiming public funds. A worker would still be considered temporarily incapacitated for as long as a doctor confirms that they cannot work but have the intention to do so. We would expect this to be for no longer than six months, although there may be cases where this could be extended (for example if we believe the EEA national has a reasonable prospect of returning to work or finding a job).
In certain circumstances EEA nationals who have ceased employment due to retirement or permanent incapacity would still have a right to reside in the UK.
5. EUN1.5 What rights do A8 nationals have?
Nationals of the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia, or Slovenia (A8 nationals) have the same right to enter and reside in the UK as other EEA nationals. The UK allows A8 nationals to undertake paid employment but these workers must register under the Worker Registration Scheme.
Once A8 nationals have been working legally in the UK for 12 months without a break, they will have full rights of free movement. They can then apply for a registration certificate to confirm their status.
6. EUN1.6 What rights do Bulgarian and Romanian nationals have?
Bulgarian and Romanian nationals have the same right to enter and reside in the UK as other EEA nationals. However, they will need permission to work before starting any job.
More information about the rights of Bulgarian and Romanian nationals is available on the Working in the UK section.
7. EUN1.7 Do EEA nationals need to apply for a registration certificate?
EEA nationals do not need to apply to the UKBA for a registration certificate but they can do so if they wish. It confirms that they have the right to live in the UK under European Community law. An A8 national can only apply for a registration certificate after they have been working and registered on the Worker Registration Scheme for over 12 months.
8. EUN1.8 When do EEA nationals qualify for a permanent right of residence in the UK?
An EEA national normally acquires a permanent right of residence after they have resided in the UK in accordance with the Regulations for a continuous period of five years. An EEA national may apply for a document certifying their permanent rights of residence and their non-EEA national family members may apply for a permanent residence card. However no documentation is required under the EEA Regulations.
For the purposes of sponsoring an application under the Immigration Rules, an EEA national who has acquired permanent rights of residence under the EEA Regulations is considered ‘present and settled’ in the UK. See ECI Chapter 6 for further guidance on permanent residence.
9. EUN1.9 Are EEA nationals exempt from immigration control?
EEA nationals and their family members are exempt from control under the Immigration Rules. Diplomats and officials of EEA countries are exempt from immigration control. Their travel documents are not endorsed.
10. EUN1.10 Can EEA nationals apply under the Immigration Rules?
Yes. If an EEA national wishes to apply under the immigration rules, they are entitled to do so.
11. EUN1.11 Do family members of EEA nationals have to apply under the EEA regulations?
No, they can choose to apply under the Immigration Rules.
12. EUN1.12 Does the Ruiz Zambrano judgment affect visa applications?
Amendments have been made to the Regulations to implement the decision of the ECJ in the case of Ruiz Zambrano. The Zambrano judgment established that member states cannot refuse a person the right to enter or reside and work in the host member state, where:
- that person is the primary carer of a Union citizen who is residing in their member state of nationality; and
- refusal of a right of entry or residence to that primary carer would deprive the Union citizen of the substance of their European citizenship rights by forcing them to leave the EEA.
The right is not a right conferred by Directive 2004/38/EC (“the Directive”), but is a right derived from the right of Union citizenship contained in Article 20 of the Treaty on the Functioning of the European Union (‘a derivative right’). As a result someone who has a derivative right is not entitled to all of the benefits arising under the Directive.
A person who meets the criteria for a derivative right does, however, qualify for:
- a right of admission to the UK under amended regulation 11;
- a right to an EEA family permit under amended regulation 12; and
- a right to a derivative residence card under Regulation 18A.
Right to an EEA family permit
A person who has a right of admission by virtue of regulation 11(5) can apply for a family permit to facilitate their admission to the UK. A person will qualify for an EEA family permit where they can demonstrate that they meet the conditions in regulation 15A and regulation 11(5).
Where sufficient evidence has been submitted to demonstrate that the applicant has a right of admission to the UK, and where that person is not precluded from entering the UK on conduciveness grounds they should be issued with an EEA family permit.
If there is another person in the UK who can care for the British citizen, then a derivative family permit must be refused on the basis that such a refusal would not result in the British citizen being forced to leave the EEA.
Therefore ECOs must assess whether there is another direct relative or legal guardian in the UK who can care for the British citizen and, in the case of a child, who has already established contact. In making this assessment, the burden of proof remains on the applicant and the standard of proof is the balance of probabilities. This means the onus is on the applicant to demonstrate that refusal of an EEA family permit would force the British citizen to leave the EEA. If there is no information to demonstrate this, then ECOs may wish to make further enquires with the applicant at to the status whereabouts of the other parent in the case of a child, or alternative care provisions in the case of a British citizen adult.
Examples of when it may be appropriate to issue a derivative family permit to a primary carer would be where:
- there are no other direct relatives or legal guardians to care for the British citizen; or
- there is another direct relative or legal guardian in the UK to care for the British citizen but there are reasons why this carer is not suitable; or
- in the case of an adult British citizen, there are no alternative care provisions available in the UK.
An example of where a person may be considered unsuitable to care for a child would be where there are child protection issues which prevent this child being placed with this particular relative/guardian - for example as a result of a particular criminal conviction or because of findings in family law proceedings. Another example might be where the person in question would be unable to care for the child due to a physical or mental disability.
A lack of financial resources or an unwillingness to assume care responsibility would not, by itself be sufficient for the primary carer to assert that another direct relative or guardian is unable to care for a British citizen. ECOs must start from the assumption that where there is another direct relative or legal guardian in the UK, that they can care for the British citizen unless there is sufficient evidence to the contrary.
Where an applicant has failed to submit sufficient evidence to demonstrate that they have a right of admission under regulation 11(5), the application should be refused.
13. EUN1.13 Alternative evidence of nationality and identity
Regulation 29A allows ECOs to accept alternative evidence of identity where the applicant is unable to provide a valid ID card issued by an EEA member state or valid passport due to circumstances beyond their control.
Each case must be considered on its individual merits and reference must be made to an Entry Clearance Manager in all instances.
Where a person claims to be unable to provide the specified documents relating to cost or inconvenience, it would not be appropriate to accept alternative evidence.
Regulation 29A does not apply to applications for admission under regulation 11, as regulation 11 already contains a provision allowing an applicant to establish his or her right to enter by other means.
14. EUN1.14 Croatia
Please see OPI 430.