Eligibility of family members of EEA nationals before Brexit

Before 1 January 2021 these rules applied to EEA nationals and their family members who were exercising EU free movement rights in the UK.

After 1 January 2021 these eligibility rules continue to apply to EEA nationals and their family members who have either:[1]

• pre-settled status granted under the EU Settlement Scheme

• temporary protection, until they receive a decision on their application to the EU Settlement Scheme

The information and footnotes are kept for reference only and will not be updated.

EEA nationals moving to the UK from 1 January 2021 are subject to new eligibility rules.

EEA workers and self-employed people, including those who were retired or incapacitated had a right to have certain family members reside with them in the UK. This was regardless of the nationality of the family member.

The family member's entitlement to homelessness assistance mirrored that of the EEA national.

The following people qualified as family members:[2]

• spouse or civil partner

• direct descendant under 21, for example child or grandchild of the EEA national or their spouse or civil partner

• direct dependent descendant aged 21 or over of the EEA national or their spouse or civil partner

• dependent direct relative in the ascending line, for example parent or grandparent of the EEA national or their spouse or civil partner

• an extended family member with a valid EEA family permit or registration certificate or residence card, who continued to meet the conditions of that documentation – this covered unmarried partners

Adoptive children

Adoptive children were classed as direct descendants and family members of EEA nationals if their adoption arrangement was recognised as valid in the UK.

If the adoptive agreement did not give rise to a parent-child relationship under UK law, subject to certain conditions adoptive children aged under 18 were classed as 'extended family members'. An example of such an agreement was a kafala, which under Islamic law is akin to guardianship.[3]

The Court of Appeal held that an adult child of an unmarried partner of an EEA national, where there was no biological or legal parent-child relationship between the EEA national and their step-child, could not be classed as a direct descendant.[4]

Siblings

Brothers and sisters qualified only as 'extended family members'. In one case, the Upper Tribunal held that legal guardianship did not create a parental relationship between a brother and a sister even when one of them had been granted legal guardianship of the other after the death of their parents.[5]

Extended family members were not eligible for homelessness assistance unless they had a valid EEA family permit or registration certificate or residence card issued by the Home Office and confirming their right to reside in the UK as 'family member of an EEA national'.[6]

The following people qualified as extended family members of EEA nationals:[7]

• a dependent child aged under 18 living as part of the EEA national's household under a non-adoptive legal guardianship order not recognised under UK law but valid under the law of the country where the order was made in favour of the EEA national

• a relative of an EEA national who, before accompanying or joining the EEA national in the UK, was either dependent on the EEA national or living as part of their household in the same EEA state, and who continued to be a member of the EEA national's household or to be dependent on the EEA national while residing in the UK. If the dependency requirement is relied upon, the EEA national must have acquired citizenship before the extended family member entered the UK.[8]

• a relative of an EEA national or their spouse or civil partner, who strictly required their personal care on serious health grounds

• a dependent relative of the EEA national who satisfied the requirements for indefinite leave to enter or remain under the UK immigration rules

• an unmarried partner in a 'durable' relationship and their children aged under 18, unless the EEA national already has a spouse, civil partner or durable partner living in the UK and that relationship subsists

'Relative of the EEA national' included relatives of their spouse or civil partner living in the UK and in possession of a EEA family permit or registration certificate or residence card issued by the Home Office and confirming their right to reside in the UK as an extended family member.[9]

The Home Office had discretion whether to issue this documentation, unless the entry clearance officer in the extended family member's country of origin had already issued the permit.[10]

The requirement to be dependent on the EEA national

To have a right to reside in the UK, some family members of EEA nationals or of their spouse and civil partners, for example children aged 21 or over and direct relatives in the ascending line, had to be dependent on the EEA national.

Family members were treated as dependent if they needed the material support of the EEA national in order to meet their essential needs.[11]

Family members had be dependent on the EEA national, not on their spouse or civil partner.[12]

Material support could refer to the provision of goods as well as cash.[13] Irregular financial support and provision of rent free accommodation did not constitute dependence, unless the family member required this to meet their essential needs.[14]

The following forms of support did not constitute dependency:

• emotional bond, for example between a mother and child[15]

• assistance with translation of documents, medical appointments and forms[16]

Except for some 'extended family members', there was no requirement that a family member was dependent on, or lived with, the EEA national in their country of origin; nor that they sought work in the UK or were likely to find it.[17]

Family members of EEA nationals who also acquired British citizenship had the same rights as family members of EEA nationals if, at the time of the acquisition of British citizenship, the dual citizenship national either:[18]

• was a qualified person, for example a worker or a self-employed person

• had a permanent right to reside

For the above to apply the EEA national's country of origin must have joined the EU before they acquired British citizenship.

Any period in which a person did not have a right to reside in the UK as a family member of an EEA national did not count as lawful residence for the purpose of acquiring a permanent right to reside after five years' residence.

In some circumstances, a family member of an EEA national retained a right to reside in the UK and their eligibility for homelessness assistance even after they ceased to be a family member of the EEA national.

Retaining rights on death of an EEA national

When an EEA national who was economically active or had a permanent right to reside died, their family members, of any nationality, acquired a permanent right to reside in the UK and became automatically eligible for homelessness assistance if:[19]

• they were residing with the EEA national immediately before death

• the deceased EEA national had resided continuously in the UK for at least two years immediately before death, or the death was the result of an accident at work or an occupational disease

Non-EEA family members of deceased EEA nationals could additionally retain their right to reside in the UK and be eligible for homelessness assistance if they had lived in the UK for at least one year immediately before the death of the EEA national and the:[20]

• deceased EEA national was economically active or had a permanent right to reside

• non-EEA family member would meet the conditions of being a qualified person if they were an EEA national, for example as a worker or a self-employed person, or was the family member of a person who met this condition

Retaining rights when on an educational course

If an EEA national who was either economically active or had a permanent right to reside in the UK died or left the UK, their direct descendant retained the right to reside in the UK if they were on an educational course immediately before the death or departure and continued their education on that course.[21]

This retained right extended to:

• the parent with actual custody of the child

• a child or grandchild of the spouse or civil partner of the EEA national who died or left the UK

Retaining rights on divorce or termination of civil partnership

Until marriage or civil partnership was dissolved, the spouse or civil partner of an EEA national continued to have rights as a family member even if they no longer lived in the same household.[22]

EEA spouses or civil partners had to rely on their own status in order to have a right to reside following divorce or termination of the civil partnership. They could have an independent right to reside as a qualified person, for example as a worker or self-employed person, or have a permanent right of residence. The Upper Tribunal confirmed that this requirement is not contrary to European law.[23]

Non-EEA spouses and civil partners retained their right to reside if they were:[24]

• residing in the UK at the time of the initiation of proceedings for divorce or termination

• working, self-employed or self-sufficient people, or they were the family member of another person (not necessarily an EEA national) who was working, self-employed or self sufficient

In addition, any of the following must apply:

• the marriage or civil partnership had lasted at least three years, and the spouses or partners had lived in the UK for at least one year during its duration

• the former spouse or civil partner had custody of a child of the relationship

• the courts had ordered that they had the right of access to a child of the relationship and that access had to take place in the UK, or

• the continued right to reside was warranted by particularly difficult circumstances, such as the family member was a victim of domestic violence whilst the marriage or civil partnership existed

In order for the non-EEA national ex-spouse or ex-civil partner to retain a right to reside after three years of marriage or where there were particularly difficult circumstances, the EEA national must have resided in the UK and been a qualified person at the date of the decree absolute of divorce or dissolution of civil partnership.[25] It was not necessary for the EEA national to be a qualified person in the UK until the date the divorce or dissolution was finalised.[26] This was likely also to apply in the cases of access to children.

Eligibility for assistance on death or relationship breakdown

The rules that enabled a non-EEA national family member to retain a right to reside following death or relationship breakdown were bridging the gap between non-EEA and EEA nationals in the event of their ceasing to be a family member. In terms of eligibility for homelessness assistance, an EEA national's eligibility depended on them having a right to reside that conferred eligibility. A non-EEA national family member who retained a right to reside because they were working, self-employed or self-sufficient were eligible for homelessness assistance only if they were economically active.

Under EU free movement, the child of an EEA worker had the right to enter into the UK’s educational system and an independent right to reside for the purpose of accessing and continuing education here.[27]

The child’s primary carer whose presence was necessary for the child to be able to continue their education in the UK[28] had a 'derivative right to reside' and was eligible for homelessness assistance and social security benefits,[29] provided they were habitually resident in the Common Travel Area.[30]

This right is sometimes referred to as a ‘Baumbast’ or ‘Ibrahim’ right to reside. It continued until completion of the child's education, or until the child reached the age of 18 (whichever was earlier), unless the child continued to require the presence of that primary carer to complete their education after they turned 18.[31] This right did not count as a qualifying period for the purpose of establishing a permanent right to reside after five years residence.[32]

In order for the primary carer to have a derivative right to reside, all the following conditions have to be met:

• the child is in education, other than nursery

• the applicant is the child’s primary carer

• the child is a child of an EEA worker

Child in education

There is no requirement that the child is in education in the UK at the same time when their EEA parent is a worker here, as long as the child has been resident in the UK at some point during the EEA national's employment.[33]

Nursery education is excluded, therefore this right to reside does not benefit parents/primary carers of children of under-school age.[34]

Child's primary carer

The courts held that an EEA worker who is the mere cohabiting partner (as opposed to the legally recognised spouse or civil partner) of the primary carer, but not the parent of the child in education, cannot confer upon the primary carer of that child the necessary worker status for the carer to acquire a derivative right to reside.[35]

This derivative right to reside can be obtained by either parent, including the EEA parent who has been a worker in the UK, as long as they are the child's primary carer.[36]

Child of an EEA worker

This derivative right to reside benefits primary carers of children of any nationality, including a child who is a British national, as long as the child's EEA parent has been a worker in the UK at some point when the child was resident here.[37]

This derivative right to reside did not apply to the primary carer of a child of an EEA national who was self-employed.[38]

The primary carer’s right to reside continued even after the EEA parent’s departure from the UK or their death, or after they ceased to work.[39]

The right to access education in the UK did not extend to the grandchild of an EEA worker. Unlike an EEA parent, an EEA grandparent cannot obtain a derivative right to reside as a primary carer based on their own worker status.[40]

Former ‘accession’ countries (A8, A2 and Croatia)

This derivative right to reside also applied to A8, A2 or Croatian nationals who were an authorised worker at some point when restrictions on their employment applied but stopped working before they completed 12 months' employment while they had children in school in the UK.[41]

The family member of a qualified EEA national acquired a permanent right to reside after five years' continuous lawful residence in the UK.[42]

Derivative right to reside and permanent residence after five years

Periods of residence in the UK as a result of a derivative right to reside as primary carer did not count for the purposes of acquiring a permanent right of residence after five years' continuous lawful residence.[43]