EEA nationals and family members, who hold EEA residency under domestic law, will soon need to consider switching their legal status in the UK.
European nationals are now able to apply under the settled and pre-settled status. The aim of this program is to allow EEA nationals and their family members, to settle in the UK following Brexit.
Once the UK leaves the European Union, the Home Office will close down the free movement rights and will close down the documentation issued to European Economic Area (EEA) & Swiss citizens.
After the free movement rights are closed, EEA and Swiss citizens & their family members will require applying under Immigration Rules, in order to remain in the UK.
The EU Settlement Scheme provides a basis, which is consistent with the Withdrawal Agreement with the EU published on 19th October 2019. This agreement was agreed with all the European Economic Area (EEA) countries and Switzerland.
The current transition arrangement is until 31st December 2020, however this could be extended and we will update our latest legal news page with more information.
Background & history
When the UK joined the European Community on the 5th of June 1975, the free movement rights were incorporated into domestic law, and allowed EEA nationals the right to come and live in the UK. There were also able to bring family members including dependant family members to the UK.
The Free Movement Directive 2004/38EC, which came into force in April 2004, provides for the right of citizens of the EEA nationals and their family members to move and reside freely within the European community. The provisions of the directive were transposed into domestic law by the Immigration (European Economic Area) Regulations 2006 (EEA Regulations 2006).
On 1 February 2017, the EEA Regulations 2006 were revoked and replaced by the EEA Regulations 2016. The EEA Regulations 2016 in large part consolidate and clarify the provisions, modernise the language used and simplify terms where possible in line with current drafting practice.
The EEA Regulations 2016 reflect the margin of appreciation enjoyed by member states to determine their own requirements of public policy and public security, for their own purposes, from time to time. They also make a number of substantive changes, including in respect of public policy and public security decisions.
The current European Economic Area (EEA) nationals, who sets out who is treated as a qualified person under the Immigration (European Economic Area) Regulations 2016, are where the policies are set out for those wishing to come and live in the UK.
Qualified person under EEA Regulations
An EEA national is treated as a qualified person if you are a job seeker, worker, self-employed person, self-sufficient or a student. You are able to change your qualified status during the period of your residency in the UK and will need to make sure you keep evidences to support your application when you intend to apply for the settled status or permanent residency.
Usually, once you have completed a period of 5 years continuous residency, you can qualify for permanent residency or settled status.
Direct family members
Family members such as spouse or civil partner, direct dependants and dependent relatives are able to come and join you in the UK. If they are in the UK on a different immigration category, they can extend their stay in the UK, even if they are not EEA national themselves.
Extended family members
Those who are related to the EEA nationals can apply for residency in the UK. The policy is extended within the new framework incorporated by the Immigration Rules.
EEA decisions on grounds of public policy and public security
All EEA nationals and family members are subject to criminality and other good character policy checks. The current EEA Regulations 2016 set out the government’s view of the fundamental interests of society in the UK in the context of the regulations. This is a statement about the types of interests, which if threatened, might provide legitimate grounds for removing or excluding an EEA national or their family member.
Home Office can make a decision to exclude or remove an EEA national or their family member on the grounds of public policy or public security in order to protect the fundamental interests of society. As part of their right to remain in the UK, consideration will be given to whether the conduct of the individual represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.
Public policy and public security are not defined in the directive or the EEA Regulations 2016. Since there is no uniform scale of public policy or public security values across member states, the government has discretion as to the standards of public policy and public security that apply in the UK from time to time. This position is reinforced by paragraph 1 of schedule 1 of the EEA Regulations 2016.
The ECJ has consistently emphasised that member states have discretion to determine the circumstances which justify the use of the public policy provision. In particular in the ECJ case of Yvonne van Duyn v Home Office (Workers)  EUECJ R-41/74 the court held at paragraph 18.
Where an EEA national or their family member has established a permanent right of residence, a decision to refuse admission, exclude, revoke residence or remove the person from the UK, is only permitted on serious grounds of public policy or public security. Serious grounds are not defined in the EEA Regulations 2016 or the directive. To justify a decision on serious grounds, there must be stronger grounds than would be applicable for a person who does not have a permanent right of residence.
Legal advice for EEA nationals and their family members
Given the legal changes, EEA nationals and their family members will need to apply for the settled and pre-settled status. Our UK Immigration Lawyers will provide you with the very best advice and most importantly putting your best interest at first.
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