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EEA nationals and their family members: a look at the past, present and future.

01 June 2010

On 1 May 2004, the 15 "original" members of the European Union (EU) were joined by 10 other countries, namely Poland, Slovakia, Latvia, Lithuania, Estonia, Hungary, Czech Republic, Slovenia (known collectively as the Accession 8 countries or A8) and Cyprus and Malta.

Then on 1 January 2007, Romania and Bulgaria  also became members of the EU (now referred to as A2 countries). These 22 EU countries together with Norway, Iceland and Lichtenstein are collectively known as European Economic Area (EEA).  Citizens of the EEA enjoy rights of free movement, based on the 1959 Treaty of Rome and subsequent EEA directives, in each other's countries. Since 2002 the right of free movement have been extended to Switzerland.

In practical terms, the United Kingdom has implemented the EU directives through a single statutory instrument known as The Immigration (European Economic Area) Regulations 2006. This protects the rights of EEA nationals who are "qualified persons" and their family members. The definition of family members is wider than that used in the Immigration Rules as it includes spouses, children up to the age of 21, parents, grandparents and in -laws in the ascending line as well as other "extended" family members  who can be shown to have been dependant on the applicant's household prior to  coming to the UK and partners in a "durable" relationship (usually taken to be two years of co-habitation in line with the requirements under the Rules).

On 25 July 2008, the ECJ issued an important judgment in relation to family members, Metock et Ors v Ireland, which stated that Regulation 12(1)(b) needs to be removed at least as it affects spouses and children under 21 of EEA nationals and in the meantime immigration judges should be applying the directive directly in accordance with the judgment. Directive 2004/38 confers on all nationals of non-member countries who are family members of a Union citizen within the meaning of point 2 of Article 2 of that directive, and accompany or join the Union citizen in a Member State other than that of which he is a national, rights of entry into and residence in the host Member State, regardless of whether the national of a non-member country has already been lawfully resident in another Member State.

As mentioned, the EEA nationals must exercise their treaty rights if they wish to sponsor a family members. According to regulation 6 in these Regulations, "qualified person" means a person who is an EEA national and in the United Kingdom as (a) a jobseeker; (b) a worker; (c) a self-employed person; (d) a self-sufficient person; or (e) a student.

EEA nationals and their family members can qualify for permanent residence after 5 years subject to meeting the criteria of Regulations 15. However, certain restrictions still apply to A8 and A2 countries.

The Government has announced "caps" for migrants, however, unless the UK wishes to leave the Eurozone is unlikely that any caps can and will be lawfully applied in the future to nationals of EEA countries who continue to bring many benefits to the UK in terms of skills, jobs creation, consumption and taxation.

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Migra & Co is a private immigration company, regulated by the Office of the Immigration Services Commissioner (OISC), reference number F200900038. This website is not a government website and as such, we are not linked or affiliated with the UK Visas and Immigration. We offer expert legal advice and flexible tailored solutions to both private and corporate clients to ensure that their immigration needs are met. If you wish to download or prepare a UK visa application form, you can do so free of charge by visiting the Official UKVI website.