EEA residence rights: more tricky cases

In the previous installment of this series I looked at how a victim of domestic violence has found it difficult to obtain documents belonging to her ex-partner to support her application for confirmation of a right of permanent residence.

Similar difficulties can also be experienced by people who arrived in the UK as family members of EEA nationals before 2006, when permanent residence became an option.

2. The long-term resident

I was instructed by a South African national who had been threatened with detention and removal from the UK. She had been sent a letter by the Home Office “following a review of [her] immigration status….”

She was having to report regularly to her local police station, as a person who “requires leave to remain in the UK but does not have it”. She had been issued with notices telling her that she was liable to be detained and removed from the UK; that she could be barred from returning to the UK for up to 10 years if she did not leave now, and that she was not permitted to access employment, housing or NHS services in the UK.

Threats like these regularly appear in correspondence to overstayers from non-EEA countries. This includes people who have previously held visas or residence permits issued under the Immigration Rules, but have then acquired a right of residence in the UK because of their relationship with an EEA national.

The slightly unusual feature of my client’s case was that she had entered the UK as the family member of an EEA national. She was still married to her German husband, and they lived in the same house they had bought together shortly after their arrival in the UK.

So what had changed?

The answer to this is that my client had arrived in the UK in 2003. At that time, the residence rights of family members of EEA nationals were dealt with under the Immigration Rules. My client arrived in the UK with a “Family Permit” visa, and was then granted leave to remain in the UK valid until June 2009.

However, from 2006, her residence rights ceased to fall under the Immigration Rules, and became automatic under the Immigration (European Economic Area) Regulations 2006. From 2006, she could have applied for a residence card under those Regulations, and (after 5 years’ continuous residence in the UK, provided her husband was exercising treaty rights during that time) a permanent residence card. However, from 2006 onwards there was no legal requirement for her to hold any documentation whatsoever to confirm her status. Even now, under the “hostile environment”, the Home Office confidently states that non-EEA direct family members “do not need to apply for a residence card…”

The case was ultimately resolved by making a successful application for a residence card. However, the fact remains that my client was forced to pay the application fee and legal costs for something that she was never required by law to have in the first place.

Cases such as these are not unusual, and are more likely to affect older people and those who have lived in the UK for a long time. As Brexit day approaches, it is to be hoped that the Home Office’s “straightforward” system for granting settled, and interim, status to EEA nationals and their family members, will be able to handle this.

Please contact me to ask about residence rights and permission for EEA nationals and family members.

 

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