EUN2.14 Can Family member of British Citizens Qualify for an EEA Family Permit?
(SURINDER SINGH CASE)
As a general rule, family member 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 our reside in a Member State other than that of which they are 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 (Eoropean Court of Justice) case of Surinder Singh. The case stated that nationals of a 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 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 EEA family permit to join under EC law.
The Surinder Singh judgement is incorporated into theEEA Regulations in Regulation 9.
Family members of British national who meet the requirements of Regulation 9 are treated as family member of EEA nationals for the purpose of the EEA Regulations.
Application 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 month right of residence in the UK, there is no requirement for the British national to be 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.
It does not matter if the only reason the British national went to another Member State was to exercise an Economic Treaty Right was so that he/she could come back to the UK with his/her family members under EC law.
The Entry Clearance Officer(ECO) should seek advice from ECCAT where unsure about the decision to be taken in applying the Surinder Singh judgement.
So for professional and sympathetic advise kindly feel free to contact our Expert Solicitors in London and Solicitors in Cardiff:
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