British, but not necessarily European

Can the family members of a British citizen rely on EU free movement law?

The United Kingdom is a Member State of the European Union. You could therefore be forgiven for thinking that the family members of British nationals would be covered by EU free movement law. However, generally, this is not the case.

Regulation 2 of the UK’s Immigration (European Economic Area) Regulations 2016 (which implements EU free movement law in the UK) defines an EEA national as “...a national of an EEA State who is not also a British citizen”. At first glance, it would therefore appear that the answer to the question is no. However it turns out it is much more complicated than that.

The family member of a British national can rely on EU free movement law in the following situations:

  1. When the British national has exercised their free movement rights by residing in another EEA country and are returning to the UK with their family member (known as the Surinder Singh route, see our previous blog post here for further information);
  2. When the British national is also a national of another EEA State, exercised their free movement rights by coming to the UK, and subsequently became a British citizen. Until recently, the UK Government did not allow these people to rely on EU free movement law. However this was declared incompatible with EU law by the Court of Justice of the European Union earlier this month (see our previous blog post here for further information);
  3. When the British national was born in Northern Ireland, has citizenship of the Republic of Ireland, and has never identified as British or held a British passport. This is due to the Good Friday Agreement in which both the UK and Irish Governments agreed to “recognise the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they may so choose”. This was the conclusion of the First-tier Tribunal (Immigration and Asylum Chamber) in a recent case in Northern Ireland reported here on the Free Movement blog and here by the Irish Times. The decision of the Tribunal may be subject to appeal and the determination has not yet been published so the precise details and scope of the ruling are currently unclear.

As is often the case with UK immigration law, things are rarely as simple as they first seem. The opportunity to rely on EU free movement law makes a significant difference to people applying for their partner to join them in the UK. EU free movement law has no income threshold, genuine and subsisting relationship requirement, or English language requirement. Furthermore, applications under EU law are granted for a period of 5 years rather than 2.5 years and are significantly cheaper than applications under UK immigration law; the fee is  £65 instead of £1,986 (2 x £993 as two applications are required) for the initial five year period of residence, and £65 instead of £2,297 for permanent/indefinite status. The difference in cost alone is enough of an incentive to try to fit into one of the above categories if at all possible.  

If you are looking for advice on whether you may be able to rely on EU free movement law, please get in touch via the contact page and one of our solicitors will get back to you as soon as possible.