EEA Family Permit for an Unmarried non-EEA National of a British Citizen

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Dear Home Office,

Me and my unmarried, de-facto partner are both Australian citizens, and are currently residing in Ireland. She is a British passport holder. She is exercising her treaty rights, and working a casual job. I myself work abroad on a 28/28 rotation in Egypt.

We are looking at moving to the UK to be closer to her family. I could apply under the UK Spousal Visa for a 2 year permit, but have read about the Surinder Singh case which allows my partner the right to free movement. As such, it would appear I could enter the UK using the EEA Family Permit, eventually applying for a EEA Residence Card with a validity of 5 years.

However, the UKBA specifically points out the following;
* the British citizen has been living in an EEA member state as a worker or self-employed person; and
* the family member, if they are the British citizen's spouse or civil partner, has been living together with the British citizen in the EEA country.
Which is clearly related to the Surinder Singh case in its specifics.

If we are unmarried, then is the Surinder Singh path closed to me? This would seem to be in contradiction to my partners right of freedom of movement; if I am refused the permit, then she will not/cannot come to the UK. If she was entering the UK as a citizen of another EEA country, then I would have no problems applying for an EEA Family Permit. But as she is a British citizen, and these points seem to highlight married couples and not unmarried; it appears she is restricted on moving to the UK.

On a separate matter; am I required to obtain a visa at all if I do not plan on working or accessing public funds while in the UK? I simply wish to reside in the UK legally with my partner while working abroad.

Yours faithfully,

Michael Riksman

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European Operational Policy Enquiries, Home Office

Dear Mr Riksman,

Thank you for your email of 24 January to the Home Office Freedom of Information team about applying for an EEA family permit as the unmarried partner of a British citizen under the Surinder Singh judgment.

Firstly, I would like to apologise on behalf of the Home Office for the very considerable delay in replying to you. Due to an administrative error, your email was not allocated to the appropriate team in good time. I apologise for any inconvenience this may have caused you.

Secondly, after considering your request, it has been decided to treat it as a general policy enquiry, rather than as a request for information under the Freedom of Information Act 2000. This is because you are essentially seeking clarification of policy, and how it might apply to your own circumstances, rather than asking for the disclosure of recorded information held by the Home Office. I hope this approach is acceptable to you.

You have asked whether you can apply for an EEA family permit to the UK as the unmarried partner of a British citizen who is exercising her free movement rights in the Republic of Ireland, in accordance with the judgment of the Court of Justice of the European Union in the case of Surinder Singh (Case C-370/90), which is given effect in UK law by regulation 9 of the Immigration (European Economic Area) Regulations 2006 (as amended) ('the EEA Regulations').

The UK interprets the Court's judgment as referring to 'family members' of British citizens only. According to Article 2(2) of Directive 2004/38/EC ('the Free Movement Directive'), which is given effect in UK law by regulation 7(1)(a)-(c) of the EEA Regulations, the term 'family member' means:

- the spouse or civil partner of the relevant EEA national,
- descendants of the EEA national (or of their spouse/civil partner) who are aged under 21 or dependent, and
- dependent direct relatives in the ascending line (parents/grandparents) of the EEA national (or of their spouse/civil partner).

See: http://eur-lex.europa.eu/LexUriServ/LexU...

Other family members and unmarried partners of the EEA national (collectively known as 'extended family members' under regulation 8 of the EEA Regulations) do not fall within Article 2(2) of the Directive and are therefore not covered by the Surinder Singh judgment or regulation 9 of the EEA Regulations. You can view the version of regulation 9, as it applies from 1st January, at the following link:
http://www.legislation.gov.uk/uksi/2013/...

For these reasons, you would not be eligible for an EEA family permit as the unmarried partner of a British citizen.

You have also asked if you need a visa at all if you do not plan on working or accessing public funds in the UK but simply wish to live with your partner.

I can confirm that anyone who is not a British citizen, does not have the right of abode in the UK, or is not covered by European Union free movement (or related EU law), is subject to control under the Immigration Act 1971 and requires 'leave to enter' or 'leave to remain' (with the exception of those exempt from control for the time being under section 8) - see section 3 of that Act:
http://www.legislation.gov.uk/ukpga/1971....

If you are a citizen of Australia (or of any other country not specified in Appendix 1 to the Immigration Rules), and you only intend to come to the UK for a maximum of six months as a visitor, you can travel to the UK without prior entry clearance (a 'visa') and seek leave to enter from an immigration officer on arrival at the UK border.

If, however, you intend to come to the UK longer term, or for a purpose other than a visit, you will need to apply for entry clearance (a visa) before you travel to the UK. See paragraphs 23A to 30C (especially 23A and 24) in Part 1 of the Immigration Rules:
https://www.gov.uk/government/publicatio...

General information on applying for a visa can be found via the following link:
https://www.gov.uk/apply-uk-visa

Based on the information you have given, and your intention to live with your British partner in the UK, the most appropriate category for you *may* be as a partner under Appendix FM to the Rules. You can find more information via the following link:
https://www.gov.uk/join-family-in-uk

I hope this has answered your queries and I apologise once again for the delay.

Kind regards,

Peter Grant
Operational Policy & Rules Unit
Immigration & Border Policy Directorate
Home Office

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Dear European Operational Policy Enquiries,

Thanks Peter for your reply, I understand you must deal with a lot of enquiries.

The preface, paragraph (6) states;
In order to maintain the unity of the family in a broader sense and without prejudice to the prohibition of discrimination on grounds of nationality, the situation of those persons who are not included in the definition of family members under this Directive, and who therefore do not enjoy an automatic right of entry and residence in the host Member State, should be examined by the host Member State on the basis of its own national legislation, in order to decide whether entry and residence could be granted to such persons, taking into consideration their relationship with the Union citizen or any other circumstances, such as their financial or physical dependence on the Union citizen.

How does this relate to my situation? Shouldn't I still have facilitated rights to reside in the UK to maintain our family unity?

Yours sincerely,

Mr Riksman

European Operational Policy Enquiries, Home Office

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This mailbox is for policy-related enquiries only. We endeavour to respond
to queries received into this mailbox within 10 working days.

IMPORTANT - PLEASE NOTE

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individual applications. If you wish to contact the casework team
responsible for your application, you can do so in writing to the
following address:

UK Border Agency
European Applications
PO Box 306
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You can find information about applying for a document confirming a right
of residence under European law on the UK Border Agency website:
www.ukba.homeoffice.gov.uk/eucitizens

Please be advised that if your enquiry is regarding an individual
application you will not receive a response from this mailbox.

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Communications via the GSi may be automatically logged, monitored and/or
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European Operational Policy Enquiries, Home Office

Dear Mr Riksman,

Thank you for your email of 2 April, in which you have sought further clarification on the position of unmarried partners of British citizens under the 'Surinder Singh' route (regulation 9 of the Immigration (European Economic Area) Regulations 2006 ('the EEA Regulations')).

Article 3(1) of Directive 2004/38/EC ('the Directive'), headed 'Beneficiaries', provides:

“This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.”

Family member, in relation to the Union citizen, is defined in Article 2(2) as:

“(a) the spouse;

“(b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State;

“(c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b);

“(d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b).”

[In respect of point (b), for the purposes of UK law, this would include the civil partner of the Union citizen/EEA national.]

Other family members and unmarried partners of the Union citizen are not direct 'beneficiaries' of the Directive as defined by Article 3(1). However, as you correctly state, Article 3(2) of the Directive requires that the host Member State shall "in accordance with its national legislation, facilitate entry and residence" of:

(a) [other dependent family members; and]
(b) the partner with whom the Union citizen has a durable relationship, duly attested.

The UK implements Article 3(2) by allowing other family members and durable partners (collectively known as 'extended family members' under reg 8 of the EEA Regulations) of an EEA national exercising free movement rights in the UK to apply for discretionary residence documentation (see regs 12(2), 16(3) and 17(4) of the EEA Regulations).

The Directive does not expressly apply to Union citizens who reside in the Member State of which they are a national - Article 3(1) refers only to Union citizens who move to or reside in a Member State of which they are not a national. However, the Court of Justice of the European Union (CJEU) has ruled that it applies "by analogy" where the Union citizen has exercised free movement rights in another Member State and returns with his or her family members to their home state. See the cases of Surinder Singh (Case C-370/90); Eind (Case C-291/05); and O and B (Case C-456/12) – links provided below:

Surinder Singh: http://eur-lex.europa.eu/legal-content/E...

Eind: http://curia.europa.eu/juris/liste.jsf?l...

O & B: http://curia.europa.eu/juris/documents.j...

In the cases of Singh and Eind, the CJEU was concerned with the definition of family member in Article 10(1) of Regulation 1612/68 (free movement of workers and their family members). This provision was effectively superseded by Article 2(2) of Directive 2004/38/EC. In O and B, the CJEU is concerned only with family members as defined in Article 2(2) of the Directive.

The CJEU has not to date ruled that the principles outlined in Surinder Singh apply to other family members or unmarried partners not included in Article 2(2) of the Directive. The Home Office therefore maintains that the Surinder Singh route, given effect by regulation 9 of the EEA Regulations, applies only to family members as defined in Article 2(2) of the Directive (reg 7(1)(a)-(c) of the EEA Regulations) and not to extended family members defined in Article 3(2) of the Directive (reg 8 of the EEA Regulations).

Provision is, however, made for unmarried partners and other relatives of the British citizen under the UK's national legislation - namely, in Appendix FM to the Immigration Rules. We consider this to be compatible with both the Directive and the judgments of the CJEU.

I hope this has clarified the position.

Kind regards,

P. Grant
Operational Policy and Rules Unit
Immigration and Border Policy Directorate
Home Office

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BritCits left an annotation ()

There's been a development since this post and HO is now required to extend EEA regs even to umarried partners of British citizens under the Surinder Singh route http://uk-immigration-blog.com/2014/10/2...

David left an annotation ()

Hello, MR Riksman,
Congratulations for bringing this question EEA for purposes of extended family members of British citzens under surrinder. I am excited to see the thinking of the policy makers. Its is a case of treating other EU nationals more favourably than British Citzens who have moved and excersised treat right. The word I find is Discrimination on grounds of nationality. No British citzen will move knowing they will not come back with their unmarried partner and often dependant relatives who accompany them or join them. The family unit in a wider sense is not protected. I hate to think of treating visitors better than children when they visit! That is what is happening here. The policy makers have lost it atleast; the case of Macathy requires that once you get a residency document in another EEA country you dont need to apply for family permit (EF). You will come and live in UK. How long for is not determined but you will have entered legally so residing legally without the EEA residence card. So will the failure to issue a family permit or residence have any impact?! No. It is clear evidence that surrinder went further than the policy makers want to restrict. Treating the same way or better returning nationals and their family members. The policy makers might have thought too many people will come on the same route especially extend family members. That policy is not acceptable under EU COMMUNITY. In fact I think it explains why few British nationals are going abroad. If the extended family memembers were allowed under EEA rugulations there will be few British families that will not want to live in the winder community and enjoy the vibrant life out there and learn new language and for years without remembering to come back. Get your Irish residnce card and you are sorted you can go in and out and enjoy your work and family.

Wayne Pearsall left an annotation ()

Be aware of this request and response...
https://www.whatdotheyknow.com/request/2...

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