The overhaul of the family migration rules in July 2012 has made it harder and harder to bring family members from outwith the EU to the UK. For many, it is simply impossible to meet the onerous financial requirements under the Immigration Rules.
European Free Movement law may provide a solution for some. There is no financial requirement nor English language requirement when seeking to remain in the UK under European law. The Home Office application fees are significantly less than those under the Immigration Rules. David Cameron stated in his recent EU speech that the Government wish to control European migration; however, to date the European Court has made clear that the Government cannot restrict rights of Free Movement, which are a founding principle of European law. The recent judgment of the Court of Justice of the European Union in the case of McCarthy and Others v SSHD Case C-202/13) is a good example. In that case, the Court of Justice of the European Union decided that the UK authorities cannot make it a requirement that a non-European national apply for a visa (an EEA family permit) when wishing to enter the UK in a situation where the non- European national has already been granted a residence card as the family member of a European national.
European nationals in the UK exercising Treaty Rights (working, job-seeking or being self-sufficient) have a right to live in the UK. They also have a right to be joined in the UK by certain categories of family members:
- Spouse or civil partner
- Child (or spouse or civil partner's child) aged under 21
- 'Dependent' family members in the ascending family line (parents, grandparents)
Other family members can apply to be recognised as a 'family member' and thus acquire a right to reside in the UK:
- Unmarried partner (in a durable relationship)
- 'Dependent' members of the extended family
Importantly, European nationals in the UK who hold dual British nationality cannot benefit from the above provisions. British citizens can, however, utilise European law and bring a non European national family member with them to the UK where they have lived in another EEA country with their family member and are returning to live in the UK. Such a situation is called a 'Surinder Singh' case. In these cases the non European family member can have a right to reside in the UK where:
- they are the the spouse, civil partner or child of a British citizen;
- they lived with the British citizen in a different EEA country for a period of at least 3 months
- the British citizen worked or was self-employed (or was self-sufficient) in that other EEA country
- family life was created or strengthened in that other EEA country
For further details on the 'Surinder Singh' route, please see our previous post Home Office attempts to restrict use of the Surinder Singh Route.
Non European nationals may have a derivative right to reside in the UK under European law where they are in one of the following situations:
- The primary carer of a British citizen child or dependent adult
- The primary carer of a self-sufficient EEA national child
- The child of an EEA national former worker where the child is in education in the UK
- The primary carer of a child of an EEA national former worker where the child is in education in the UK
- The dependent child (aged under 18) of a primary carer in one of the above categories
When seeking to remain in the UK or bring a family member to the UK it is very important to consider whether there may be a basis of stay under European law. For further advice or information then please contact a member of the Edinburgh or Glasgow Immigration team.