European Economic Area administrative removal: consideration and decision - ICS Legal Blog

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European Economic Area administrative removal: consideration and decision

For the purposes of the Immigration (European Economic Area) Regulations 2006 (as amended) (‘the EEA Regulations’), an ‘EEA national’ is a national of a Member State of the European Union (EU) other than the UK, or a national of Iceland, Liechtenstein, Norway or Switzerland. EEA nationals have rights of free movement and residence within the EEA states, subject to certain limitations. Where an EEA national has a right to reside in the UK under the EEA Regulations, their direct family members (who may not themselves be EEA nationals) are afforded the same rights of free movement and residence. Extended family members of EEA nationals do not acquire a right of residence on the basis of their relationship to an EEA national unless they have been issued with the relevant documentation by the Home Office.

The family members of an EEA national are defined in regulation 7 (direct family members) and regulation 8 (extended family members) of the 2006 Regulations. For additional guidance on investigating claims to be an EEA family member, please see the ‘Investigating claims by non-EEA nationals to be family members of EEA nationals’ section of sham marriage, civil partnerships and marriages of convenience.

Initial right to reside: resident less than 3 months

An EEA national has an initial right of residence for 3 months beginning on the date on which they were admitted to the UK (regulation 13). During this 3 month period, an EEA national must not become an unreasonable burden on the social assistance system of the UK (for example, they must not seek to access certain benefits).

There are no other conditions or restrictions placed upon them (other than the requirement to have a valid passport or ID card). If an EEA national wishes to remain beyond this initial 3 month period, they must show they are exercising Treaty rights in the UK (see extended rights for further detail). However, an EEA national can be removed from the UK during their initial 3 month period of residence on the grounds of abuse of rights or fraud (see criteria for admin removals under regulation 19(3)(c)).

Extended right to reside: resident between 3 months and 5 years

Beyond the initial 3 month period, an EEA national is entitled to remain in the UK as a ‘qualified person’ through exercising a Treaty right. An individual may lose their right to reside and be subject to administrative removal if they cease to exercise a Treaty right.

Permanent right to reside: resident over 5 years

The EEA regulations set out that after a period of 5 years of continuous lawful residence in the UK (in accordance with EEA regulations that were in force during that 5 year period), an EEA national, or a family member of an EEA national, who is in the UK acquires a right of permanent residence that does not require them to be exercising a Treaty right. This right can only be lost through an absence from the UK of more than 2 consecutive years. Please refer to Permanent rights of residence in the UK for full guidance on eligibility for permanent right to reside.

Retained right to reside

There are a number of circumstances, as set out in regulation 10 of the 2006 regulations, in which non-EEA national family members of EEA nationals may retain their right of residence in the UK if the EEA national leaves the UK, dies, or the relevant marriage or civil partnership is terminated. There is more information in Family members of European Economic Area (EEA) nationals who have retained the right of residence.