Virginia, US

As Theresa May prepares to formally commence the UK’s exit process from the European Union, EEA nationals are naturally concerned about not only their status but also that of their non-EEA family members in the UK.

Non-EEA family members of EEA nationals can apply for an EEA Residence Card to confirm their lawful status in the UK. Whilst applying for a Residence Card is not currently obligatory for direct family members (please see below,) holding such documentation generally, makes it easier to evidence a right to work here as well as travel to and from the UK.

Certain nationals must have a valid EEA Residence Card or Family Permit to enter the UK. The Family Permit is a six month visa issued to non-EEA family members of EEA nationals from overseas, to allow them to enter the UK before proceeding to apply for the Residence Card.

Moving forward, we anticipate that such documentation could prove useful in evidencing an established status in the UK pre-departure from the European Union.

Are such Applications Popular?

We have seen a steep increase in queries about this particular application type, as people look to confirm their lawful status in the UK in these uncertain times.

Whilst the UK government has indicated that free movement as it currently exists shall end after the UK leaves the EU, we do not yet know what will replace it. EEA nationals and their families currently living in the UK at present are planning ahead to protect their status here where possible.

Who Qualifies for a Residence Card?

Family members of an EEA or Swiss national living in the UK and economically active (i.e., exercising their Treaty Rights via either working, studying, self-employment, self-sufficiency or job seeking) will qualify for a Residence Card.

Family members are classified as either ‘direct’ or ‘extended’. This is an important classification as it dictates whether the family member is obliged to apply for a Residence Card. It also impacts on the type of application form that must be used to ensure the submission of a valid application, and whether the applicant will be able to continue to work whilst the application is under review.

Direct family members include the spouse or civil partner of an EEA national, a child or grandchild under the age of 21 of the EEA national or their spouse or civil partner, or the dependent parent or grandparent of the EEA national or their spouse or civil partner.

Extended family members include the unmarried partner of an EEA national or a relative of the EEA national or their spouse or civil partner who is not defined as a direct family member, such as siblings, nieces, nephews etc. Extended family members must have a valid EEA Residence Card to stay in the UK and evidence a level of dependency on the EEA national.

A Residence Card will be valid for up to five years, but is dependent on the holder maintaining their relationship with the EEA national and the EEA national continuing to exercise their treaty rights in the UK.

What Does the Application Process Involve?

Family members of EEA nationals should submit an application on one of two forms depending on whether they are a direct or extended family member of an EEA national currently resident in the UK, exercising Treaty Rights in one of the above ways.

The application form can be submitted by post or online with the standard £65 application fee and typically take 3-4 months to be decided, though the Home Office can take up to 6 months to finalise the application.

Once submitted, the Home Office will send the applicant a Certificate of Application confirming the receipt of the application and whether the applicant can work in the UK whilst the application is under review.

Potentially Tricky Elements

Whilst the required documents are typically straightforward, certain scenarios require more involved documentation.

For example, those applying in the capacity of an unmarried partner must evidence that they have lived with their EEA national for at least two years.

Also, those obliged to show a level of dependency on their EEA national must ensure that this is clearly and suitably documented.

If the relevant EEA national is a self-sufficient person or student, applications must include evidence of comprehensive private medical insurance available to the EEA national as well as the applicant.

Certain local authorities have introduced a passport pass back application service for EEA nationals but unfortunately, this has yet to be rolled out to their family members. As such, applications for Residence Cards typically involve the applicant and their EEA family member surrendering their passports for approximately four to eights weeks whilst the application is received and initially processed by the Home Office. The passports will then be returned upon request, whilst the application is reviewed.

This may change so keep an eye for the Fragomen Brexit website for updates.

Should I Submit an Application?

Fragomen would urge people to apply for EEA Residence Cards where possible (bearing in mind that extended family members must hold a valid Residence Card.)

Once obtained, the holder then has clear evidence of their lawful status in the UK, which may stand them in good stead to show they were resident in the UK pre-Brexit.

Fragomen can advise and assist on all aspects of such an application, including an assessment of eligibility and document review.

Should you require any help, please contact your Fragomen representative.