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8 Sep 2016
European Free Movement rights enable nationals of the European Economic Area (‘EEA’) to live and engage in economic activity in other Member States.
How it works in the UK
Under the Immigration (European Economic Area) Regulations 2006 (the ‘EEA Regulations’) EEA nationals have, in certain circumstances, the right to:
The British Nationality Act 1981 (‘BNA 1981’) also enables EEA nationals, their family members and their extended family members to apply for naturalisation as a British citizen. This is of course subject to them meeting the qualifying criteria.
Right to enter the UK
Pursuant to Regulation 11 of the EEA Regulations, an EEA national must be admitted to the UK on arrival if they can provide satisfactory evidence that they are an EEA national. A similar provision applies to family members of EEA nationals, meaning that they too must be admitted if they provide satisfactory evidence that they are accompanying or coming to join the EEA national in the UK.
Once an EEA national or their family member has been admitted to the UK, they are entitled to reside in the UK for a period of up to three months under regulation 13 of the EEA Regulations. This is known as the initial right of residence.
If the EEA national or their family member wish to reside in the UK beyond the initial three months, they will need to satisfy additional criteria.
Extended right of residence
Unlike domestic visa categories, the right to reside in the UK in exercise of European Free Movement rights is not dependent on there being a valid visa granting such a right. On the contrary, it depends on a set of factual circumstances being present (whether or not a visa or permit exists to confirm such circumstances).
In other words, in order for an EEA national to reside in the UK beyond the initial three months they must be capable of satisfying a set of qualifying criteria. This is known as the ‘Qualified Person’ test and, in line with Regulation 14(1) of the EEA Regulations, a person who satisfies the Qualified Person test is entitled to reside in the UK for so long as they continue to satisfy the test.
So who is a Qualified Person? According to Regulation 6(1) of the EEA Regulations, a Qualified Person is a person who is an EEA national and in the UK as a:
(Please note that there are additional criteria which specify when a person meets one of these five conditions.)
Family members and extended family members of a Qualified Person can also continue to reside in the UK beyond the initial three months.
Pursuant to Regulation 15 of the EEA Regulations, a Qualified Person will automatically acquire permanent residence after five years’ residence in the UK under the EEA Regulations. The same applies to family members of a Qualified Person.
It used to be the case that many individuals would acquire permanent residence and then take no further action either to obtain a permanent residence card or to naturalise as a British citizen. However, in the lead up to the referendum and subsequently, more people have sought to solidify their position by obtaining evidence of their rights.
Once an EEA national or one of their family members has held permanent residence status for a period of 12 months, and provided they have a permanent residence card, they can apply to naturalise as a British citizen.
European Free Movement law can be difficult to navigate, especially when complex circumstances are involved. If you would like to discuss your circumstances in detail, please feel free to contact us.
Please note that this article is for information only and should not be taken as legal and/or financial advice. Immigration law changes regularly and it may be the case that this page has not been updated to take into account the latest changes. If you would like advice on your personal circumstances, please feel free to contact us.