What is an Extended Family Member of an EEA National in EU Law?
Under EU law, EEA nationals are entitled to be joined by their extended family members, which includes partners, dependent relatives in the ascending line and children up to the age of 21, or older if they are dependants.
Other relatives not falling within that definition may be able to rely on EU law in order to obtain a right of residence in the UK. This is not automatic, as they do not have a right to accompany or join the EEA national, but instead require discretion to be exercised in their favour. Such people need to show that they fall within the EEA extended family member definition.
Directive 2003/38 sets out at Article 3 that:
“2. Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:
- any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;
- the partner with whom the Union citizen has a durable relationship, duly attested.
The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.”
This was incorporated into UK law by the Immigration (EEA) Regulations 2016 in Regulation 8. This Regulation defines who is an EEA extended family member for the purpose of the UK’s application of EU law.
Regulation 8 includes relatives who are:
- Dependants / members of the EEA national’s household (before and after the move to the UK);
- persons who strictly require the personal care of the EEA national due to serious health reasons;
- and durable partners.
The 2016 Regulations added a new restriction that relatives must be “a relative of an EEA national”. This applies to all applicants, apart from those who were issued with an EEA document as the extended family member of an EEA national prior to 01 February 2017. The effect of this addition is to preclude applications by the relatives of an EEA national’s spouse – i.e. aunts / uncles / siblings on the side of the spouse of the EEA national rather than members of the EEA national’s family.
Extended Family Member Applications under EU Law
In making an application for an EEA Family Permit or EEA Residence Card under EU law, EEA extended family members are asking for discretion to be exercised in their favour, and for the Home Office to recognise that if they were not granted a right to stay in the UK, the EEA national’s exercise of Treaty rights would be interfered with.
This means that being a durable partner or financially dependant upon an EEA national is not enough to mean there is a right of residence: the Home Office has to exercise discretion and recognise the extended family member’s personal circumstances mean they should be granted a right of residence.
Under the UK Regulations, once an extended family member is issued with EEA documentation, they automatically become a ‘family member’ for the purpose of Regulation 7.
Appeal Rights for EEA Extended Family Members
As we have covered in previous posts, there has been much change in relation to the appeal rights of EEA extended family members.
The definition of ‘EEA decision’ in Regulation 2 was amended in 2019, and no longer excludes extended family members.
Regulation 36, which sets out the right of appeal against ‘EEA decisions’ now states:
(4) If a person to whom paragraph (2) does not apply claims to be the family member of an EEA national under regulation 7, the relative of an EEA national who is an extended family member under regulation 8, or a family member who has retained the right of residence under regulation 10, that person may not appeal under these Regulations without producing—
(a) a valid passport; and
(i) an EEA family permit
(ii) a qualifying EEA State residence card;
(iii) in the case of a person claiming to be the family member of an EEA national, proof that the criteria in regulation 7 are met; or
(iv)in the case of a person claiming to be a family member who has retained the right of residence, proof that the criteria in regulation 10 are met.
This means that extended family members can exercise a right of appeal if the conditions above are met.
EEA Extended Family Member Applications under EU Settlement Scheme
EEA Extended family members can only make successful applications under the EU Settlement Scheme if they already have documentation as an extended family member under the EEA Regulations.
There is still scope for an EEA extended family member application to be made under the EEA Regulations for Applicants who fall within the extended family member definition. This is an application under EU law, so will not be an option after the UK leaves the EU and/or any transitional period where EU law still applies ends.
After an EEA application as an extended family member is granted, an EU Settlement Scheme application would be open to extended family members, thereby protecting their position in the UK after Brexit.