Family members of EEA nationals

Last modified: 09 November 2016

If your family members are also EEA or Swiss nationals, they can come to the UK in the same way as you, without restriction.

If your family members are not EEA or Swiss nationals, and you are coming to, or you are in, the UK as student, the following family members can come with you, or join you:

  • your husband or wife
  • your civil partner - this is a same-sex partner with whom you have a relationship that has been legally recognised. See Annex H of Chapter 8 of the Immigration Directorate Instructions for a list of non-UK civil partnerships that are recognised in the UK
  • children who are dependent on you or on your spouse or civil partner

These are known as ‘direct family members’. No other family members of EEA national students have an automatic right to come to the UK for more than 3 months, but the Home Office must consider allowing the following members of your family to come to the UK with you, or to join you here:

  • cohabitees (see below)
  • any other family members, if in the country from which they have come they are dependants or members of the household of the student, or where serious health grounds strictly require the personal care of the family member by the student

These family members are known as ‘extended family members’. The UK government should undertake an extensive examination of the personal circumstances of your extended family member (s) (including their financial or physical dependence on you) before a decision is made on whether to grant them permission to come to the UK. If your family member is refused permission, the government must give their reasons for the refusal. However, there is no longer a right to appeal against the decision to refuse a residency document to an extended family member of an EEA national.

As extended family members do not have an automatic right to be in the UK, these family members must have the correct permission before coming to the UK. If they are already in the UK with another type of immigration permission, which will expire before the time they wish to leave, they must make their EEA extended family member application as soon as possible, as otherwise they will not have permission to be here (or study) between the time their immigration permission expires and the grant of permission to be here as your extended family member. If there is, or will be, such a gap family members are advised to return to their country of residence to make the application, returning when permission is granted.

If you want your co-habitee to come to the UK with you (or join you here), European Union law says you have to be in a ‘durable relationship’. The guidance issued by the Home Office in interpreting EU law says that you need to show that you have been in a relationship 'akin to marriage' for at least two years. However, it continues on to say: “…there may be instances when the two year rule is not satisfied but the couple have a child together. In these circumstances you can use your discretion if there is enough evidence. For example, a birth certificate showing shared parentage has been provided with evidence of living together.” As European Union law simply says that you need to be in a 'durable relationship', without any minimum length - if you need to challenge the UK interpretation of 'durable relationship', seek legal advice.

If you want to bring parents or other relatives, you need to show that they were members of your household or dependent on you in the country from which they have come before you came to the UK or that they are seriously ill and require your personal care. The test of whether a family member requires your personal care is quite high.

If you are in the UK also exercising another right to reside, for example, as a worker, you can bring a wider range of family members with you as direct family members under EU law, including children or grandchildren who are under 21 or dependent on you, and parents and grandparents who are dependent on you.

 


Dependency

Last modified: 09 November 2016

There is no definition of ‘dependency’ in the EU directive or in the UK’s regulations which interpret the directive into national legislation. There have been several cases heard before the Court of Justice of the European Union (CJEU) which has given some consideration to what ‘dependency’ means.

The test of dependency is one of fact, and is decided by looking at the situation, and establishing if there is material support (for example, financial help, accommodation or other material support) provided for your family member to cover essential needs. The test does not go as far as considering why you are providing your family member with support or whether your family member could find another method of supporting themselves financially. If your family member claims benefits, it does not necessarily mean that essential needs are not being met by you.

For your direct family members, the dependency does not have to have existed before your family member came to the UK.

For an extended family member, the test would extend to look at whether dependency existed in a country other than the UK before you moved to the UK. The government would need to consider whether your family member (s) received material support for essential needs in their country of residence before they came to the UK (at the very least at the time they made their application to come to the UK). The Modernised guidance on ‘extended family members’ gives a list of what the UK government will accept as evidence of dependency or as evidence that your dependent was part of your household before they came to the UK.

Family members of British citizens

Last modified: 10 November 2016

If you are a British citizen and have lived in another EEA country, you will be able to derive a right under EU law if you have had a genuine period of residence in another EEA country for longer than three months. If you are someone who benefits from EU law, your non-EEA family members can be in the UK under free movement rights too (although, from 1 February 2017, this will be limited to direct family members).

The UK's EEA regulations (which interpret EU law) currently say that in order for you to benefit, you must have resided in the other EEA member state as a self-employed person or as a worker and that you should have ‘transferred the centre of your life’ to the other EEA state in order for your family members to benefit from being considered as a family member of an EEA national.

However, following a successful challenge to these requirements in the EU courts, the UK government re-issued their EEA Regulations. In provisions which take effect from 25 November 2016, the government has included a number of factors which they would consider in deciding whether the British citizen enjoyed a 'genuine period of residence' in the other EEA state (one of the factors, amongst others, being that they 'transferred the centre of their life' to the other EEA state). Family members who want to apply before this date, should be able to rely on the court ruling which said that the EU national returning to their country of residence should have created or strengthened family life with a non-EEA national during a period of 'genuine residence'. In this case, or if they cannot evidence that they meet any of the criteria laid out in the Regulations, they may wish to seek legal advice.

The Regulations now also stipulate that for your family members to be considered family members of an EEA national you need to be exercising the equivalent of a right to reside in the UK (i.e. you should be studying, working or be self-sufficient in the UK), except you are not required to meet all the conditions other EEA nationals are required to meet. For example, if you are studying, you will not be required to have comprehensive sickness insurance, but your family member will be required to have this.

The UK government had been overly restrictive in limiting this right to those who have been workers or self-employed in the other EEA member state (i.e. this can apply to those exercising their right to reside as students). The UK's re-issued EEA regulations take account of this. From 25 November 2016 they provide additionally for those who exercised their right to reside as a students or self-sufficient person (as well as if they would have acquired a right of permanent residence in that other EEA country, under the same criteria as an EEA national acquiring the same right if they were in the UK). 

The re-issued Regulations also say that the purpose of residence in the other EEA country cannot have been in order to benefit from this provision.


Top