EEA Regulations (UK)

Introduction

The [http://www.opsi.gov.uk/si/si2006/20061003.htm Immigration (European Economic Area) Regulations 2006] (or EEA Regulations for short) constitute the law that implements the right of free movement of European citizens and family members in the UK. It allows European citizens to come to the UK and to work without a visa. Family members of European citizens enjoy the same rights under certain conditions, but they usually need a visa to enter the UK.

Legal Context

The right of free movement is defined in the EU Directive 2004/38/EC on the right to move and reside freely. As a directive, this right is not directly applicable, but it needs to be implemented in national law. The EEA Regulations are the implementation into UK law. The processes described in this law are performed by the UK Border Agency [http://www.bia.homeoffice.gov.uk/] , which is part of the Home Office [http://www.homeoffice.gov.uk/] . The details of how to apply the law are described in the [http://www.bia.homeoffice.gov.uk/sitecontent/documents/policyandlaw/ecis/ European Casework Instructions] .

Unlike many other member states, the UK are not part of the Schengen Agreement. Therefore the directives for the Schengen Agreement do not apply to the UK. This also means that the UK does not follow some of the unifications between the Schengen states in implementing the Directive 2004/38.

There is also a significant amount of case law (or precedents) concerning the right of free movement. While it does contribute some important aspects and rights, applying case law can be tricky, because most of it relates to legislation predating the Directive 2004/38 and the national implementations. To correctly interpret the case law, the historical development needs to be taken into account (see Freedom of movement for workers).

Terminology and Applications

The EEA Regulations define a number of terms in addition to the terms in the Directive 2004/38.

Extended Family Members

The definition of family member (of an EU citizen) only include a spouse or civil partner, children under 21, and dependent parents. A person outside of this definition (especially unmarried partners) may fall under the category extended family member. These include dependents of the EU citizens, members of the household, and a partner in a "durable relationship". While the Directive 2004/38 requires member states to "facilitate entry" for extended family members, the details are not defined. The Directive does not seem to grant any rights to extended family members.

In the EEA Regulations, the acceptance of extended family members is completely optional. Also there is no time limit in which the application has to be decided.

The implementation is currently inconsistent. While extended family members are handled like family members for most issues, they are not given the right to work while an application for a residence card is pending. [http://www.ukresident.com/forums/index.php?showtopic=63757] This means that an extended family member may have the right based on an the EEA family permit acquired abroad, but this is only valid for 6 months. Applications for a residence card typically take around 6 months, so the extended family member would have a gap during which he/she is not allowed to work.

Accession States

Works from recent member states have the right to move to the UK, but their access to the labour market is limited. The details are defined in the Worker Registration Scheme ( [http://www.ukba.homeoffice.gov.uk/workingintheuk/wrs/ WRS] ).

Completeness

The implementation is reasonably complete, although there are corner cases where the European and Human rights may be infringed. One issue is that the UK has kept the national immigration law separate from the implementation of the European law. While it is possible to switch from the UK law to the European law, this does reset the clock for acquiring permanent residence. The legal situation of extended family members during this switch is uncertain, because they have to conform to both laws. Switching from European law to UK law is usually impossible in country.

Implementation Issues

By far the biggest implementation issue is the long processing time for the issue of residence cards (EEA2 applications). This can take 6 months or longer (current processing times are 7 months according to the [http://www.bia.homeoffice.gov.uk/eucitizens/applyingundereuropeanlaw/ web site] . During this time it is very difficult for the family member to start working, to open a bank account, to register with a doctor or to travel. This issue is created and aggravated by a combination of several seemingly harmless infringements. These infringements are:

* The initial visa (EEA family permit) is valid for only 6 months (reduced in 2006 from previously 12 months).
* The processing of the EEA2 application (which is required to be completed within 6 months) often takes longer than 6 months.
* During this time the passport of both the EEA citizen and the family member is held by the Home Office.
* While it is possible to request the passport back without canceling the application, the [http://www.bia.homeoffice.gov.uk/contact/contactspage/contactcentres/ current web page] does not mention this (unlike the [http://web.archive.org/web/20070702084524/http://www.bia.homeoffice.gov.uk/applying/returnofpassports previous one] ).

And without the passport life can be difficult for a foreigner, because the passport is required in many situations. Even if the passport is received back, family members often encounter difficulties because of the short validity of the EEA family permit. For example a GP may refuse to register the family member because the visa is not valid for another 6 months (which is not correct, but nevertheless common).

Most of these problems are aggravated by the way that the certificate of application (the acknowledgment of the application) is issues.

* The certificate of application (which is required to be issued immediately) is sent very slowly.
* The certificate of application is a generic letter without reference to the concrete case.
* The certificate of application does not grant the right to enter the UK.

The obvious solution would be issue a temporary visa with the right to work immediately, and to send the residence card once the application is completed. A self help option is to keep the passports and only include a copy in the application. According to individual reports the Home Office will request the passport once the application is ready for processing, and then the residence card is issued reasonably quickly.

There are further issues, but they have a comparatively small effect. The application forms (EEA1, EEA2, EEA3, EEA4, and VAF5) are overly complicated, ask for a good amount of unnecessary information, and ask for many more documents to be included than legally necessary. Applications launched by family members from outside of the EEA are judged against the national immigration rules. There are also issues for spouses that are separate but not yet divorced.

In theory entry into the UK should be possible even without an EEA Family Permit, but immigration officers are often not aware of this option, and personal reports are disencouraging. Residence cards issues by other EEA countries are not recognised as a replacement for the visa by the UK, although this is required by the Directive 2004/38.

Communicating with the Home Office is usually difficult. Inquiries are only possible via a premium rate number, and even this number may give wrong advice or an incorrect status of the application. The advice given on the web page is also often inconclusive, incomplete or leaving out essential rights of the applicant (see [http://www.bia.homeoffice.gov.uk/eucitizens/applyingundereuropeanlaw/ applying] ).

Conclusion

While the law is a reasonable complete transposition of the European directive, the processes implemented by the Home Office fall significantly short of this goal. There is doubt that the situation needs to be improved, most likely due to pressure from the European commission. For the individual (especially family members of EU nationals) it can be very difficult (basically impossible) to force to Home Office into compliance. While it is in theory possible to sue the Home Office, this is certainly neither easy nor fast. The best approach seems to be ask for advice in a forum about European immigration, and to contact [http://ec.europa.eu/solvit/ SOLVIT] in difficult cases.

External links

* [http://www.opsi.gov.uk/si/si2006/20061003.htm Immigration (European Economic Area) Regulations 2006] — UK Government
* [http://working-in-the-uk.ukresident.com/working-in-the-uk---do-you-need-permission/working-in-the-uk/16/ Working in the UK] — UK Resident
* [http://eumovement.wordpress.com/info-united-kingdom/ free movement (UK)] — wordpress
* [http://www.gherson.com/articles/european-union UK/EU legal articles] — gherson
* [http://www.workpermit.com/uk/eea_swiss.htm Working in the UK for EEA nationals] — workpermit
* [http://www.easyexpat.com/forums/ftopic_11904.htm&sid=1c0cd1a78b68d55a560d8a55f0dcc29f Filing for UK residency EEA1-4] — easyexpat
* [http://www.easyexpat.com/forums/ftopic_10179.htm&sid=1c0cd1a78b68d55a560d8a55f0dcc29f EEA family permit] — easyexpat