The European Directive 2004/38/EC (known as ‘the citizens’ directive’) outlines the rights of European Union citizens and their family members to move and reside freely within the territory of the member states of the European Union.
The UK government implemented the directive into its regulations in 2006 and issued the Immigration (European Economic Area) Regulations 2006 (the UKs EEA regulations). These regulations are often amended, and should be updated in line with changing European law (including, if relevant, European case law). Domestic law cannot be more restrictive than EU law for EEA citizens who are exercising their right of residence inside the UK and their family members.
The UK's EEA regulations extends the rights outlined in the directive to all citizens of the EEA and Switzerland. When we refer to the directive, therefore, we mention EU nationals, but when we mention domestic regulations, it is EEA nationals.
There are sometimes discrepancies between European law and the way that the UK has implemented European Union law. Most EU law has ‘direct effect’ i.e. is automatically part of law of member states, and therefore where the law of a member state breaches enactment of the European law, this can be challenged in the domestic courts of that state. Another remedy is a complaint to the European Commission (who can commence infringement proceedings against the member state).
EEA and Swiss nationals have an initial, unrestricted right to reside in another member state for up to three months (in this case the UK). Thereafter, they must be here in the capacity of a student, employed person (or someone who has retained 'worker status'), self-employed person, self-sufficient person or the relevant family member of one of these. In addition, they can be here as a jobseeker for a limited amount of time. In each of these categories the directive (which, for workers, is further qualified by case law) lays down particular criteria each is expected to meet to be deemed to be exercising their right to reside in that capacity.
In some circumstances a family member of an EEA national may ‘retain’ a right of residence if the EEA national dies, leaves the UK, or (in the case of spouses or civil partners) the couple divorce or terminate their civil partnership.
In addition, the UK government has now included, in their EEA regulations, those who qualify for additional (‘derivative’) rights of residence which derive from other EU law free movement provisions.
The extent of the right of EEA and Swiss nationals to reside in the UK as students is explored in the pages in this section of the website. Information about the right to reside on other grounds (including the derivative rights of residence) can be found on the Home Office website.
The Home Office issues instructions to its staff on how to interpret EU law when making decisions about applications from EEA and Swiss nationals and their family members. These are contained in the Modernised guidance and European operational policy notices. They are available on the Home Office website . In addition, there is separate guidance for entry clearance officers known as ‘Entry clearance guidance’.
These instructions and the guidance provide some indication of how the Home Office interprets EU law, but these (and the Regulations) cannot override EU law where there is a conflict.