New rules for EEA nationals and their family membe...

The Home office has always been very keen to bring over changes to the existing immigration system in order to have the maximum benefits from the system and the immigrants. Recently there have been a lot of changes in the immigration rules and now the EEA regulations have also been revised thoroughly.

Following are the salient features of the changes that have been introduced on 30th of April 2006:

1. New Terminologies

The Home office has now introduced new terminologies for the resident permits and resident documents i.e. resident certificates and residence cards respectively. The residence certificates would be issued to the EEA nationals while the residence cards would be issued to the non-EEA family member of the EEA national from whom the non-EEA nationals are deriving their rights. The requirements to apply for them are also revised and there are a few old regulations that have been replaced by the new ones.

2. Qualified Persons

The list of those who come under the definition of qualified persons have been revised and according to the new list following persons would be considered as qualified persons:

1. Job Seeker;A job seeker means a person who enters the UK in order to seek employment and can provide evidence that he is seeking employment and has a genuine chance of being engaged. This is a new category that has been included in the new rules.
2. Worker;The definition of a worker is the same i.e. a person considered as worker under the old regulations. A person who is no longer working shall NOT cease to be treated as a worker if:
   • He is temporarily unable to work as the result of an illness or an accident; or
   • He is in duly recorded involuntary unemployment after having been employed in the UK, provided that he has registered as a job seeker with the relevant employment office; or
   • He was employed for one year or more before becoming unemployed; or
   • He has been unemployed for no more than six months; or
   • He can provide evidence that he is seeking employment in the UK and has a genuine chance of being engaged; or
   • He is involuntarily unemployed and has embarked on vocational training that is related to his previous employment; or
   • He has voluntarily ceased working and embarked on vocational training that is related to his previous employment.
3. A Self-Employed person;A self-employed person is also the same person considered as a self employed under the old regulations. A person who is no longer in self-employment shall not cease to be treated as a self employed person if:
   • He is temporarily unable to work as the result of an illness or an accident; or
   • He is in duly recorded involuntary unemployment after having been self employed in the UK, provided that he has registered as a job seeker with the relevant employment office; or
   • He was employed for one year or more before becoming unemployed; or
   • He has been unemployed for no more than six months; or
   • He can provide evidence that he is seeking employment in the UK and has a genuine chance of being engaged; or
   • He is involuntarily unemployed and has embarked on vocational training that is related to his previous employment; or
   • He has voluntarily ceased working and embarked on vocational training that is related to his previous employment.
4. A Self-Sufficient person;A self-sufficient is also the same person considered as a self-sufficient person under the old regulations. He is not supposed to be a burden on the social assistance system of the UK during his period of residence and also to have a comprehensive sickness insurance cover in the UK. There is no specific mention of the amount of money for a person to have in order to apply for residence certificate as a self-sufficient person. The resources, however, as defined under the new rules should be more than the maximum level of resources which a UK national and his family members may possess if he is to become eligible for social assistance under the UK benefit system.
5. A StudentA student means a person
   • Enrolled at a private or public establishment, included on the department for education and skills register of education and training providers or financed from public fund, for the principal purpose of following a course of study, including vocational training;
   • And having comprehensive sickness insurance cover in the UK; and
   • Assures the secretary of state, by means of a declaration, or by such equivalent means as the person may choose, that he have sufficient resources not to become a burden on the social assistance system of the UK during his period of residence.
   There is therefore no need to provide any bank statements or any other documentary evidences to establish that the person would not become a burden on the state benefits. A declaration from the student would be sufficient for the student to address the maintenance and accommodation issue.

3. Rights of Residence

1. Initial right of residenceAn EEA national has the right to reside in the UK for up to 3 months from the date he is admitted if he holds a valid ID card or passport from an EEA state. A family member of such an EEA national residing in the UK, who is a non- EEA national, also has the right to reside in the UK in line with the main EEA national. The initial right of residence is however subject to the power of the secretary of state to remove an EEA national and / or non-EEA national family members if he decides removal is justified on grounds of public policy, public health or national security. In addition to that the initial right of residence of the EEA national or his family member shall cease under this regulation if he becomes an unreasonable burden on the social assistance system of the UK. It would be decided on a case-to-case basis that whether a temporary help from the funds would constitute as an unnecessary burden on the public funds or not.
2. Extended right of residenceA qualified person has the right to reside for as long as he remains a qualified person. A family member of such a person or of an EEA national with a permanent right of residence has the right to reside for as long as he remains the family member of a qualified person or EEA national. The extended right of residence is however subject to the power of the secretary of state to remove an EEA national and / or non-EEA national family members if he decides removal is justified on grounds of public policy, public health or national security.
3. Retention of Right of ResidenceIn the event of EEA national`s death or departure from the UK:It would not mean loss of the right of residence for the family members, who are not nationals of the member state, and who have been residing in the UK as family members for at least one year before the EEA national`s death or departure from the UK. But before applying for permanent residence they need to fulfil the criteria of being a worker or self employed person or self-sufficient person and to provide comprehensive sickness insurance cover.It would also not mean loss of right of residence for the children or of the parent having actual custody of the children, irrespective of nationality, if the children are residing and enrolled at an educational establishment for the purposes of studying in the UK, until the completion of their studies.In the event of divorce, annulment of marriage or termination of registered partnership:It would not mean loss of right of residence for the non-EEA family members provided:
   • The marriage / registered partnership lasted for at least three years, including one year spent in the UK; or
   • The spouse / partner has the custody of child of the EEA national by a Court Order or
   • The non-EEA family has been a victim of domestic violence while the marriage / registered partnership was subsisting; or
   • The non-EEA family member has the right of access to a minor child and the Court has ruled that access must be enjoyed in the UK and for as long as is required.
   But before applying for permanent residence they need to fulfil the criteria of being a worker or self employed person or self-sufficient person and to provide comprehensive sickness insurance cover in the UK.The Domestic violence provision is a protective provision that safeguards the rights of the victims of domestic violence and has now been extended to the non-EEA family members of the EEA nationals. Previously, it was only available to spouse / unmarried partners of the British nationals.
4. Permanent right of residenceThe general rule is that the EEA national and / or his family member (EEA or non EEA national) who has resided in the UK under the 2006 regulations for a continuous period of five years can acquire the right to reside permanently in the UK. The right of permanent residence can only be lost through absence from the UK for a period exceeding two years. Like the above, the permanent right of residence is also subject to the power of the Secretary of State to remove an EEA national and / or non – EEA national family members if he decides removal is justified on grounds of public policy, national security or public health. The permanent right of residence would be valid for 10 years unless the applicant applies for naturalization and becomes a British citizen.

4. Family Members

The definition of family members has also been revised under the new regulations, according to which only the following persons would be considered as family members:

• His Spouse or Civil Partner
• His direct descendants, or of his spouse or civil partner who are under 21 years of age.
• His direct dependants in his ascending line or of his spouse or civil partner.
• A person who is to treated as the family members of that other person under the deeming provisions for certain extended family members.

The dependant relatives in the ascending are now restricted to direct dependants only i.e. only parents of the EEA national or of his spouse / civil partner would be allowed to join or accompany the main EEA national. But for EEA national students, only spouse / civil partners and their children aged less than 21 years of age are considered as family members.

Please note that there is no discretion of the Immigration control to refuse entry clearance i.e. they are bound to give leave to enter / remain provided good documentary evidence are made available to establish the relationship of the applicant with the main EEA national. The applications from the extended family members are however, considered under a different criteria and the Immigration offices are given vast discretionary powers while considering their applications to accompany or to join the main EEA national.

5. Extended Family Members

“Extended family members” means a person who is not a family member of an EEA national as described above and satisfies one of the conditions set out below:

1. If a person is a relative of the EEA national, his spouse or his civil partner and is residing in an EEA member state in which the EEA national is also residing, as the dependant upon the EEA national or is a member of his household and wishes to accompany or join the EEA national in the UK or having joined the EEA national in the UK, continues to be dependant upon him or to be a member of his household.
2. If a person is a relative of an EEA national or his spouse or his civil partner and on serious health grounds, strictly requires the personal care of the EEA national, his spouse or his civil partner.
3. If a person is a relative of an EEA national and would meet the requirements in the immigration rules (other than those relating to entry clearance) for indefinite leave to remain in the UK as a dependant relative of the EEA national were the EEA national, a person present and settled in the UK.
4. If a person is the partner of an EEA national (other than a civil partner) and can prove to the decision maker that he is in a durable relationship with the EEA national (Unmarried Partner).

Unmarried partners, unlike in the immigrations rules, are just required to establish having a durable relationship rather than a two years` relationship. The criteria as detailed in the new EEA regulations are less stringent as compared to the immigration rules. The immigration officers do enjoy vast discretionary powers in considering the applications from the “extended family members” of the EEA nationals to enter or remain in the UK, but certainly cannot refuse the applications for no reason at all.

The retention of rights, domestic violence, unmarried partners are the most important changes that have been incorporated into the EEA regulations and that would give the non-EEA family members of the EEA nationals the same rights as enjoyed by the family members of the British nationals. The eligibility for making an application for permanent residence in the UK has also been extended from four years of stay to five years that is in line with the current changes introduced in the immigration rules. The civil partnerships would also be acknowledged in the EEA regulations and would be given the same rights to the non-EEA nationals as available in the immigration rules. The intentions is therefore to protect the rights of the non-EEA family members of the EEA nationals who are exercising treaty rights in the UK, in conformity with the rights presently enjoyed by the family members of the British nationals.