Archive for EU Law

What are the Implications of Brexit for EU national & family members?

brexit

Remember this slogan? Britain is now leaving the UK .

What are the implications? This is the question everyone is asking, particularly EU national and their family members, who face an uncertain future in the UK. Equally perplexing is the effect on the family members of third-country nationals the EU national may be connected with.

The question arises what can be done to protect their status in the wake of Brexit.  Many are concerned that the UK government will use EU nationals as a bargaining tool.

Many EU nationals and their family members are considering applying for British Citizenship or Permanent Residence (PR). A person automatically qualifies for PR if they meet the 5 years residence requirements.  There is the option to apply for Permanent Residence. As one can imagine there has been a surge in applications, at the Home Office in the light of Brexit.     However, proving Permanent Residence is not easy, and it’s important that sufficient evidence is provided. The Home Office will not tell you what you need to submit. The application form is also very lengthy and consists of 85 pages. The form is far from straightforward, and you will definitely need to take your time on this one.

Our experience in this area is that the applicant, whether they are an EU national or a family member has numerous questions, from wanting to know whether they qualify for Permanent Residence, to whether they can include family members on their application at the same time.

Also what are the implications under EU law on becoming a British Citizen?  EU law has always been very generous, when dealing with family reunion cases, particularly from third countries Eg Nigeria Ghana-India etc.  Whereas the Immigration Rules are far more restrictive and make family reunion if not difficult, virtually impossible.   If you are looking to apply for a family permit for a family member or a close relative (extended family members) a lot more information may be needed. If you do decide to become a British Citizen you also need to consider whether your country of origin allows you to hold dual nationality.

The chances are you are reading this because you have a specific problem and you are not clear on your position after Brexit. Whether you are applying for Permanent Residence or deciding to become a British Citizen.   One thing is certain, now is the best time to find a solution as the UK is still part of the EU and will be so for the next 2 years.

 

 

Summary of Nigel Farage speeches

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EEA nationals applying for family permit for fiancees and unmarried partners.

EEA nationals applying for family permit for third country nationals
Family member of EEA national who are qualifying members enjoy free movement rights under the regulations. Family members of EEA national are entitled to accompany join or resided with an EEA national.
What happens where an EEA national wants to apply for a fiancée visa, to get married in the UK, or make an application for an unmarried partner to join him or her in the UK?. What does the EU Regulations say about these types of cases? What are the differences between the two categories family members and extended family members provided for in the Regulations. To what extent is it relevant and how will it affect the application? Does the Immigration Rules appendix FM play a part in this process? If yes what can I do if I can’t meet the financial limit of £18,600. Essentially the immigration rules defines the financial limit and maintenance and accommodation requirements the sponsor must satisfy before he/she embarks on an application for entry clearance. How much does the application cost for an unmarried partner fiancée visa? and when is it fee? We will be addressing some of the answers to the question raised below:
Family members Regulation 7
Regulation 7 identifies the first main category of family members. The list below includes spouse or civil partner and direct descendents of EEA national or his spouse under the age of 21. This first category is very important because their free movement rights are innate.
Regulation 7 of the EEA Regulations defines “family member” as:
• the EEA national’s spouse or civil partner

• Direct descendants of the EEA national or of his spouse or civil partner who are under the
age of 21 OR are their dependants

• dependant direct relatives in the ascending line of the EEA national or of his spouse or
Civil partner.

This definition includes EEA nationals who are students in the UK for less than three
months. For periods of residence extending beyond 3 months family members of an EEA
national who is a student (unless he is additionally exercising another Treaty right) are
defined as his spouse or civil partner and his dependant children or the dependant children
of his spouse or civil partner.
The right to admission and residence is automatic and there are no cost implications once such a family relationship has been established.

Extended Family members (Regulation 8)
Extended family members are only to be treated as family members for the purposes of the
EEA Regulations if they have been issued, as a matter of discretion, with an EEA family
permit or a registration certificate or residence card. The EEA Regulations allow for an“extensive examination of the personal circumstances” of a person applying under these
provisions.
The following persons are extended family members:
A relative of an EEA national or of his/her spouse or civil partner who is residing in an
EEA state in which the EEA national also resides and is dependant on the EEA national or is
a member of his household AND is either accompanying or joining the EEA national OR has
joined the EEA national and continues to be dependant or a member of the EEA national’s
household

• A relative of an EEA national or of his/her spouse or civil partner who strictly requires
personal care from the EEA national or his spouse or civil partner on serious health grounds

• A relative of an EEA national or of his/her spouse or civil partner who would meet the
requirements in part 8 of the immigration rules (other than those relating to entry clearance)
for indefinite leave to enter or remain in the United Kingdom as a dependent relative of the
EEA national or his spouse or his civil partner were the EEA national or his spouse or his
civil partner a person present and settled in the United Kingdom.

• A person who is the partner of an EEA national (other than a civil partner) who can show
that he/she is in a “durable relationship” with the EEA national. When assessing whether a
relationship is durable officers should satisfy themselves fully that the person meets the
leave to enter requirements of an unmarried partner as set out in part 8 of the immigration
rules .
Is the Immigration rules appendix FM relevant to my application?
http://ukimmigrationforum.co.uk/uk-immigration-and-its-effects/
For partners in a durable relationship the Home Office applies a rule of two years, so the couple would need to demonstrate by providing evidence. There is no definition of a durable relationship so this rule is not set in stone. For sponsors unsure how to proceed, it is always worthwhile getting immigration advice, particulary if you are seeking to do the application on your own, just to make sure that you are on the right track. see link below.
http://ukimmigrationforum.co.uk/immigration-services/
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Applying for Permanent Residence for Family Members of EEA nationals

 

 Top Tips to consider before applying for permanent residence

Family members of EEA nationals who are exercising rights of free movement are entitled to be admitted to and stay in the UK with the EEA national.  The definition of family members includes the third country nationals, a term used to describe nationals who are not members of the European Union.

Family members of EU nationals also have the right to reside in the UK and do not need to leave the UK if they have overstayed on their visa.

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This is of great advantage to family members, who may have overstayed under the Immigration Rules, and do not have any leave to remain. They are able to regularize their stay in the UK.

Family members issued with a residence permit are also entitled to family reunion, under the   EU law and may also qualify under the Immigration Rules. Reunion can be achieved  under EU law  more effectively, but this needs to be assessed on a case by case basis. It always worth getting immigration advice so one can weigh up the pros and cons. EU law is more generous in allowing family reunion with distant family members, but make sure you check out whether you meet the requirements first.

Family members of EU nationals should note that their rights of residence are dependent on their connections to the EEA national and this can be lost. For instance when the EEA national themselves ceases to be a qualified person, by no longer living and working in the UK.  Divorce is another example, unless the family  member has retained his or her rights of residence.

 Settlement Applications

The EU law does allow all persons who have been admitted under the various immigration categories including family members of third country nationals to apply for permanent residence after 5 years continuous lawful residence.

Family members of third country nationals considering applying should not assume it’s purely a question of meeting the residence requirements, they need to show connections to the EU national.

The immigration Rules now include provision for applicants wishing to remain in the UK on the basis of their family or private life.  These rules are located at Appendix FM and Para 276ADE. But once again applicants should also seek advice on their circumstances before deciding the best way to proceed; as they may find out they do not qualify! In view if the ever increasing uncertainty of the UK continuing to be a member of the European Union, seeking advice over rights of settlement is now increasingly  of great importance.

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Bulgarian and Romanian Immigration into the UK

 

As from January 1, 2014 citizens of Romania and Bulgaria will enjoy the same rights as the rest of the EU which will allow them to work in the UK. It was back in 2007 when Bulgaria and Romania both joined the EU which meant its citizens could have the right to travel in the UK without the need to get a visa. However, there were restrictions imposed at the time of the type of work they could do.

 

Any employer in Britain that wanted to hire someone from Bulgaria or Romania would have to have work permits and the employees (from Romania and Bulgaria) have to have a document called the “Accession Worker Card.”

 

It all made life rather difficult for those wanting to come and work in Britain, particularly for unskilled workers. But come January 1, 2014 these tough restrictions will be lifted after seven years of being in place.

 

There are other countries in the EU that face the same issues as Britain, France, Germany, Spain, Belgium, Austria, Holland, Malta and Luxembourg for example. The Romanian and Bulgarian workers will be entitled to the same benefits as the rest of the EU member states but prime minister David Cameron has proposed a number of restrictions that should be in place by the time the immigration visa restrictions are due to be lifted.

 

There will be a restriction on migrants claiming out of work benefits, like Job Seekers Allowance (JSA) for the first three months and all welfare benefits will stop completely after six months unless there is a real chance of that migrant worker getting a job. Migrants will not be able to claim housing benefit and any migrant caught begging will be deported and not allowed to return to the UK for a period of 12 months. Whether or not these restrictions go far enough is a burning question. Several Romanian visitors spent well over three months sleeping rough on the grounds of Marble Arch in central London over the summer months, some would get by with food that had gained from bins and begged from tourists.

 

Another proposal is to quadruple the fines imposed on employers who undercut British workers by paying less than the minimum wage. The backlash has come from political party UKIP and pressure group Migration Watch that has predicted more than 55,000 could arrive in the UK every year until 2019.

 

 

 

UK referred to the European Court because of breach in EU Laws

 

 

 The Commission has referred the UK Government to the European Court over breaches in UK law over its failings in applying the habitual residence test to EU Nationals. 

Instead the UK government applies the right to reside test. This is an additional test, and has been imposed unilaterally by the UK.

UK nationals meet the requirements of habitual residence by virtue of their UK citizenship, whereas other EU nationals have to demonstrate that they do have the “right to reside.”

The effect are that EU national  who are unable to demonstrate that they  do not have the right to reside cannot  receive specific social security benefits.

·         Child Benefit

·         Child tax credit

·         Job Seekers Allowance (income based)

·         State pension credit

·         Employments and support allowance

EU Applications