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Personal Immigration

EEA Regulations & Brexit Impact

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EEA Regulations & Brexit Impact

The United Kingdom left the European Union on 31 January 2020 at 11 PM and entered a transition period, due to end on 31 December 2020. During this transition period, EU nationals can continue to enjoy their freedom of movement rights in the UK as they did before Brexit. The rights and status of EU, EEA and Swiss citizens living in the UK will remain the same until 30 June 2021. EU citizens and their family members who wish to remain in the UK after 30 June 2021 will need to apply for an immigration status to remain lawfully in the UK under the EU Settlement Scheme (EUSS). Although a new Scheme has been introduced to ensure continuity of residence for EU Nationals and their family members, previous routes under the EEA Regulations have not yet been closed, and applications can still be made if meeting the requirements.

What are the EEA Regulations?

The Immigration (European Economic Area) Regulations 2016 transposes the European citizens directive into domestic law in the UK, which provides the right to freedom of movement for EEA Nationals and their family members in the UK.

Under these regulations, EEA Nationals have been able to bring direct and extended family members to the UK if they qualified on any of the below routes:

EEA Family Permit

This provides for entry into the UK of a non-EEA citizen family member of an EEA or Swiss citizen who is exercising Treaty rights, as implemented in UK law through the EEA Regulation and is commonly used by extended family members, durable partners and dependent relatives.

Derivative rights of residence

This is for the primary carer of an EEA/British child or dependant adult who resides in the UK and needs support for their day to day care, including taking decisions for their medical and financial matters (commonly known as ‘Chen’, ‘Ibrahim and Teixeira’ and ‘Zambrano’ cases)

Surinder Singh

This is for those who have lived with a British citizen exercising EU Treaty rights in another EEA country before returning with them to the UK to live (commonly known as ‘Surinder Singh’ cases)

Retained rights of residence

This is for those who previously had a right to reside in the UK as the family member of an EU national, but their relationship has come to an end or the sponsor has died or is the parent with custody of a child who has a retained right of residence.

EEA Regulation or EU Settlement Scheme?

EEA Regulations and the EU Settlement Scheme are two different things. The EEA Regulations were implemented in the UK Law to facilitate the movement of EEA Nationals within the member states. Since the occurrence of Brexit, the UK has allowed for a transitional period in which EEA Nationals and their family members will be able to regularize their status in the UK without having to return back home. This transitional period will end on 30 June 2021 and further changes to the UK Immigration system may be made after this period.

The main difference between the two is that under the EEA Regulations, the applicant must be a direct or extended family member of a ‘’qualifying person’’ or a person with permanent residence. It may also be necessary to provide evidence of sponsor exercising treaty rights by showing that they are working, seeking employment or studying in the UK. Under the EU Settlement Scheme, there is no requirement to provide evidence of the sponsor being a ‘’qualified person’’. However, they must be holding a valid Pre-Settled or Settled Status to remain in the UK and provide evidence of the respective residence to attain those status. In addition to this, the general evidence threshold is low on EUSS applications, for example evidence of dependancy is assumed for dependant parents under EUSS as opposed to EEA regulations.

In some other cases, for example when applying for Permanent residency under the EEA regulations, the status can normally be backdated. However under EUSS settled status, the status cannot be backdated and applicants would normally need to wait for 12 months after obtaining the status to apply for British Citizenship (unless they are married to a British Citizen).

Appeals Under EEA Regulations

A person served with an EEA decision, who has a right of appeal, may appeal against that decision to the First-tier Tribunal under Regulation 36(1). In the appeal, the appellant will have to demonstrate why the EEA decision was wrong. An EEA decision means a decision under the EEA Regulations that concerns a person’s entitlement to be admitted to the UK, to be issued with or have renewed, or not have revoked, a registration certificate, residence card, derivative residence card, document certifying permanent residence or permanent residence card,removal from the UK or cancellation pursuant to regulation 25, on grounds of public policy, public security or public health, or on grounds of misuse of rights, of a person’s right to reside in the UK.

The Home Office further to the decision in the case of Banger (Unmarried Partner of British National) [2017] UKUT 125 (IAC) has revisited their position in relation to the appeal rights for extended family members bringing them into scope of Regulations 36(1) of the 2016 Regulations and allowing for a right of appeal.

How can we assist?

Our Immigration lawyers at City Legal have immense experience in assisting clients with visa applications under the EEA Regulations. We are a multi award winning law firm and pride ourselves in being approachable, innovative and always going that extra mile to make sure our clients receive the individual attention they deserve. Our Immigration team maintains a high reputation and is committed to provide clear, transparent and reliable advice to our clients.

Frequently Asked Questions

What qualifies as an Unmarried Partner?

For the purpose of this application, an Unmarried Partner is an individual who has been in a genuine and subsisting relationship with their EU National Sponsor, and the two have been living together for at least 2 years in a relationship akin to marriage.

Can I apply within the UK?

An application to enter the UK under the EEA Regulations (EEA family permit) must be made outside the UK. However, if you are already in the UK under a different route, you may be able to switch in-country.

Can I apply for settlement under the EEA Regulations?

The applicant may apply for settlement if they meet the relevant requirements. The requirements under EEA regulations are more stringent as applicants would need to prove that they were exercising treaty rights during the qualifying period as opposed to just showing the residency on EUSS Settled status.

What is a ‘’qualified person’’?

Under the EEA Regulations, a ‘’qualified person’’ is an individual who is exercising their treaty rights in the UK. For example, if the person is studying, working or seeking employment in the UK.

Do I need to leave the UK if my sponsor has deceased?

This depends on the individual’s scenario. If someone is holding a residence permit, which has been obtained under the EEA Regulations, the individual may be able to retain it if they have resided in the UK for at least one year before the sponsor passing away.
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