9. Family members of British citizens

of the The Immigration (European Economic Area) Regulations 2016

Green text indicates changes from the original version of the legislation.


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Family members of British citizens

This section has no associated Explanatory Memorandum

9.—(1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who is the family member (“F”) of a British citizen (“BC”) as though the BC were an EEA national.

(2) The conditions are that—

(a) BC—

(i) is residing in an EEA State as a worker, self-employed person, self-sufficient person or a student, or so resided immediately before returning to the United Kingdom; or

(ii) has acquired the right of permanent residence in an EEA State;

(b) F and BC resided together in the EEA State; and

(c) F and BC’s residence in the EEA State was genuine.

(3) Factors relevant to whether residence in the EEA State is or was genuine include—

(a) whether the centre of BC’s life transferred to the EEA State;

(b) the length of F and BC’s joint residence in the EEA State;

(c) the nature and quality of the F and BC’s accommodation in the EEA State, and whether it is or was BC’s principal residence;

(d) the degree of F and BC’s integration in the EEA State;

(e) whether F’s first lawful residence in the EU with BC was in the EEA State.

(4) This regulation does not apply—

(a) where the purpose of the residence in the EEA State was as a means for circumventing any immigration laws applying to non-EEA nationals to which F would otherwise be subject (such as any applicable requirement under the 1971 Act to have leave to enter or remain in the United Kingdom); or

(b) to a person who is only eligible to be treated as a family member as a result of regulation 7(3) (extended family members treated as family members).

(5) Where these Regulations apply to F, BC is to be treated as holding a valid passport issued by an EEA State for the purposes of the application of these Regulations to F.

(6) In paragraph (2)(a)(ii), BC is only to be treated as having acquired the right of permanent residence in the EEA State if such residence would have led to the acquisition of that right under regulation 15, had it taken place in the United Kingdom.

(7) For the purposes of determining whether, when treating the BC as an EEA national under these Regulations in accordance with paragraph (1), BC would be a qualified person—

(a) any requirement to have comprehensive sickness insurance cover in the United Kingdom still applies, save that it does not require the cover to extend to BC;

(b) in assessing whether BC can continue to be treated as a worker under regulation 6(2)(b) or (c), BC is not required to satisfy condition A;

(c) in assessing whether BC can be treated as a jobseeker as defined in regulation 6(1), BC is not required to satisfy conditions A and, where it would otherwise be relevant, condition C.

C-370/90 The Queen v Immigration Appeal Tribunal and Surinder Singh, ex parte Secretary of State for Home Department is the basis on which British Citizens can take advantage of the EU rights of residence for their non-EU family members when they have lived in another member state before returning to the UK.

C-60/00 Mary Carpenter v Secretary of State for the Home Department extends the right to non-EU family members who are married to a British Citizen who are providing cross-border services to another EU member state, where refusing residence would restrict the provision of services.

C-109/01 Secretary of State for the Home Department v Hacene Akrich the judgement basically deals with the issue, where a couple delibrately moves to another member state to come back and take advantage of the “Surinder Singh” route, which is generally allowed if the marriage is genuine and treaty rights were correctly exercised in the other member state.

C-434/09 Shirley McCarthy v Secretary of State for the Home Department limits the scope of Akrich where the British national is also a national of the member state which they travel to. In this case McCarthy was considered British in the UK and Irish in Ireland, and had therefore not made use of freemovement rights to take advantage of the rights of residence.

C-456/12 O. v Minister voor Immigratie, Integratie en Asiel and Minister voor Immigratie, Integratie en Asiel v B. extends the right to non-EU family members who are married to a British Citizen who are returning to their home state after short periods of residence in another Member state. Related to the “Centre of Life” test.

C-457/12 S. v Minister voor Immigratie, Integratie en Asiel and Minister voor Immigratie, Integratie en Asiel v G. extends the right to non-EU family members who are married to a British Citizen that regularily travelling to another EU member state in the course of their employment where refusing residence would restrict the provision of services.

Previous Section
8. “Extended family member”
Next Section
10. “Family member who has retained the right of residence”

 

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