Immigration advisers often encounter the assumption that an EEA residence card entitles the holder to live in the UK while the card is valid.  Visually, the card resembles other types of visa, issued under the immigration rules, for which this is true.  However, surprisingly, it is possible to hold a valid EEA residence card and not be entitled to live in the UK.  Conversely it is possible to be entitled to live in the UK, even without having the residence card.

by Bruce Mennell | | Blog

Immigration advisers often encounter the assumption that an EEA residence card entitles the holder to live in the UK while the card is valid.  Visually, the card resembles other types of visa, issued under the immigration rules, for which this is true.  However, surprisingly, it is possible to hold a valid EEA residence card and not be entitled to live in the UK.  Conversely it is possible to be entitled to live in the UK, even without having the residence card.

Why is the EEA residence card different?

A visa granted under the immigration rules means that the Secretary of State (or an immigration officer at the border) has given its holder permission to enter or remain in the UK while the visa is valid.  That permission does not in general terminate until the visa runs out, or a formal decision is taken to revoke it.  In contrast, EEA nationals and their family members can be given rights to enter and live in the UK directly by the relevant community instruments and treaties.  They do not require permission from the Secretary of State or an immigration officer.  When they meet the relevant criteria, they have the right, and if they cease to meet the criteria, the right may end.  The residence card is issued as evidence of the right that already exists, to allow the holder to make use of the right.  A consequence is that living in the UK for 5 years using the EEA residence card does not automatically entitle the holder to gain permanent residence.

When is a residence card issued?

In very general terms: nationals of countries making up the European Economic Area (apart from the UK) have the right to enter the UK for an initial period of 3 months, and to remain subsequently if they are exercising treaty rights as:  

  • A worker (including part-time work if it is 'genuine and effective');
  • A student (if they have adequate financial resources and comprehensive sickness insurance);
  • A self-employed person;
  • A self-sufficient person with comprehensive sickness insurance; or
  • A jobseeker.

  A 5-year residence card is issued when the Home Office is satisfied that a person is an EEA national exercising treaty rights, or the family member of such a person.  (A permanent residence card is issued when they are satisfied that a person has acquired a permanent right of residence as an EEA national or the family member of such a person.  But here again, possession of a permanent residence card is not a necessary condition of being permanently settled.  The EEA national or their family member becomes permanently settled as soon as they meet the criteria set out in the relevant legislation and instruments.)

Some Consequences

An important consequence is that presence in the UK may become unlawful even though the residence card is still valid.  There are some common ways in which this can happen.

EEA Nationals

An EEA national exercising treaty rights by working, may leave work but continue living in the UK.  Because they can freely enter and leave the country, and would be able to get back into work after a period of unemployment, the fact that they stopped working for a period may not immediately have an obvious impact on their immigration status.  But if they apply for the permanent residence card after 5 years, or they apply for benefits, an issue could be taken over whether they still had a right to live in the UK while they were unemployed.  (Note that stopping work does not automatically terminate the right to reside because of the possibility that the EEA national is  self-sufficient or studying, or a jobseeker.  There can also be a continued right of residence where children have been put into school while the EEA national parent was in the UK as a worker.)  If the right to reside of the (non-EEA) family members was dependent on the EEA national, those family members may also face problems in converting their status to that of a permanent resident, or if the EEA national is not exercising any treaty rights at the point of application, in getting even another 5-year residence card.

Family Members

If a person obtains a residence card as the family member of an EEA national, but their relationship to the EEA national subsequently ends, the right to be in the UK can end with the termination of the relationship.  For example, the spouse of an EEA national exercising treaty rights could lose their right to be in the UK if the marriage is ended by divorce. (There are certain circumstances in which the right can be retained upon divorce, however.)  If the right to reside terminates, the family member may not perceive any immediate effect, as current or potential employers may continue to accept their residence card as evidence of the right to work while the card is valid, and the issue may not be raised at the UK border if the person re-enters using the card.  In many situations, it is when the current residence card is expiring that a problem is discovered, however by that point the person's options may have diminished.

What should you do if your situation has changed?

If you are in the UK on a 5-year EEA residence card and the basis on which it was originally granted has changed, you should ensure that you are still entitled to be here. Â You may be able to determine this from your own research.  There are many resources available on the web which explain the 5 categories above in more detail, and you can find useful information on the AIRE centre website.  However if you find that you are unable to determine the issue and could encounter difficulties when your current 5-year card runs out, you may need to seek advice from a regulated adviser.  

Alexander Finch

Senior Adviser, Passportia © Passportia Limited


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