Chapter 21 - The European dimension [Update 4 June 2008]

21.1	The European Economic Area
21.2	Other examples of European harmonisation
	21.2.1 The EU Common Visa List (CVL) 21.2.2 The Direct Airside Transit Visa List 21.2.3 Travel facilities for school pupils from third countries resident in a Member State 21.2.4 The Uniform Format Vignette 21.2.5 The Schengen Convention
21.3	Applications From EEA Nationals
	21.3.1 EEA Nationals who wish to practice a profession in the UK 21.3.2 EEA Nationals who are exempt from control 21.3.3 EEA Nationals, the Channel Islands and the Isle of Man
21.4	The EEA family permit
	21.4.1 Handling and assessing applications for EEA family permits 21.4.2 Work seekers 21.4.3 Benefits 21.4.4 Unmarried partners, civil partners, fiancés and fiancées 21.4.5 EEA national minor children 21.4.6 Adopted children 21.4.7 Dual nationals, Irish or EEA nationals holding settled status 21.4.8 Non-EEA Family Members of British Nationals (Surinder Singh cases) 21.4.9 Delaying a decision 21.4.10 Charging fees 21.4.11 Referral to the Home Office 21.4.12 Referral to UK Border Agency, Visa Services Directorate 21.4.13 DNA testing of dependants 21.4.14 Issue of a family permit 21.4.15 After entry 21.4.16 Local refusal of an application for a family permit 21.4.17 Refusal of grounds of public policy, public security or public health 21.4.18 British nationals who are members of HM Forces / Crown Diplomatic Service 21.4.19 Deportation and exclusion orders 21.4.20 Applications from non EEA nationals working in the EU (Van Der Elst) 21.4.21 The Swiss family permit
Annexes
21.1	Family Members/Extended Family Members
21.2	"Qualified Person" - checklist
21.3	EEA national minor children [Updated 4 June 2008]
21.4	The Immigration (European Economic Area) Regulations 2006
21.5	Free Movement of Persons Directive (2004/38/EC)
21.6	EEA family permit flow chart
21.7	European Economic Area (EEA) Countries

Chapter 21 - The European dimension

21.1 - The European Economic Area (EEA)
EEA nationals are nationals of the twenty-seven EU member states plus Norway, Iceland and Liechtenstein. A complete list of EEA countries is at Annex 21.7. EEA nationals are treated in the same way as nationals of the European Union (EU) for immigration purposes. They have the right of free movement and residence throughout the EEA. As far as the UK is concerned, EEA nationals are free to enter the UK subject to only a brief passport or identity card check to establish that they are EEA nationals. Non EEA nationals continue to be subject to full immigration controls at the frontier.

The Immigration (European Economic Area) Regulations 2006 (the EEA Regulations) a copy of which is at Annex 21.4, formally transposes the Free Movement of Persons Directive (2004/38/EC) into UK legislation, details of which are at Annex 21.5.

The EEA Regulations set out the rights of residence for EEA nationals and their families who come to the UK in various capacities, including as visitors, workers, self-employed people, self sufficient people or students. It contains provisions which apply to family members who are themselves not EEA nationals (including visa nationals). Further guidance on these provisions can be found in the European Casework Instructions.

21.2 - Other examples of European harmonisation
There are other examples of EU harmonisation. The EU Council of Ministers have adopted common visa and airside transit lists, facilitated travel for third-country schoolchildren on school trips within the EU and introduced a common-format visa vignette.

21.2.1 - The EU Common Visa List
The UK does not participate in or have a vote in Council on Regulation 539/2001 (CVL), and therefore will not be participating in the adoption and application of the recent amendments to the CVL (see below). UK visa regimes are kept under review and introduced, or lifted, on the basis of immigration need.

Council Regulation (EC) No 574/1999 of 12 March 1999 determined the third countries whose nationals must be in possession of visas when crossing the external borders of the Member States. This entered into force on 19 March 1999. This Regulation was replaced by Regulation 539/2001 which entered into force on 10 April 2001.

Regulation 539/2001 contains two Annexes: Annex I lists the third country nationals who are required to obtain a visa to enter the Schengen area, and Annex II lists the third country nationals who do not require visas. Regulation 539/2001 has subsequently been amended by Council Regulation (EC) 1932/2006 which entered into force on 19 January 2007. Among other things the amendment refers to categories of British nationals who require a visa when crossing the external borders, and those who are exempt from this requirement. British overseas territories citizens without a right of abode in the UK, British overseas citizens, British subjects without a right of abode in the UK and British protected persons were added to Annex I. British Nationals (Overseas) were added to Annex II. British overseas territories citizens and British subjects with a right of abode in the UK are exempt from the visa requirement (and are therefore also listed in Annex I).

Although a British overseas territory, Gibraltar is part of the EU under UK membership, and Gibraltarians have been recognised as UK nationals for EU purposes since the UK acceded to the European Community in 1973. Gibraltar is within the EU by virtue of Article 299(4) of the Treaty establishing the European Community. Gibraltarians have rights of free movement within the EU.

21.2.2 - The Direct Airside Transit Visa List
The UK requires direct airside transit visas (DATV's) for nationals of:
Afghanistan, Albania, Algeria, Angola, Bangladesh, Belarus, Burma (Myanmar), Burundi, Cameroon, People's Republic of China, Colombia, Congo (Democratic Republic AND Republic of), Ecuador, Eritrea, Ethiopia, Gambia, Ghana, Guinea, Guinea-Bissau, India, Iran, Iraq, Ivory Coast, Kenya, Lebanon, Liberia, Macedonia, Moldova, Mongolia, Montenegro, Nepal, Nigeria, Pakistan, Palestinian Authority, Rwanda, Senegal, Serbia, Sierra Leone, Somalia, Sri Lanka, Sudan, Tanzania, Turkey, 'Turkish Republic of North Cyprus', Uganda, Vietnam and Zimbabwe.

Exemptions may apply to holders of certain documents. Please refer to the

UK Border Agency, website for the latest information.

21.2.3 - Travel facilities for school pupils from third countries resident in a Member State

1. Do third country school pupils resident in a European Union Member State need a visa to travel to another Member State as part of a school excursion?

On 30 November 1994 the Council of the EU adopted a measure concerning travel facilities for school pupils from third countries legally resident in a Member State. This allows schoolchildren from third countries who are resident in a Member State to visit or transit another Member State of the EU if travelling as a member of a school group without the need to obtain a visa.

To qualify under this measure:

• The pupils must be legally resident in an EU Member State;
• The pupils must be travelling in an organised school group, seeking entry into another Member State for a short stay or transit;
• The school must be a general education school. The concession does not apply to specialist institutions;
• The group must be accompanied by a teacher from the school;
• The pupils' details and the purpose of the journey must be listed on the common format form (List of Travellers form), issued by the school.

2. Can school pupils' from third countries use the List of Travellers form as a travel document?
The United Kingdom does not allow the List of Travellers form to be used as a travel document by third country school children resident in the UK, travelling to an EU Member State. Pupils travelling from the United Kingdom must be in posession of their own valid passport or travel document, containing an endorsement that they have permission to enter and remain in the United Kingdom.
Third country school pupils resident in another EU member State may recognise the List of Travellers form as a travel document. It is advised that third country pupils travelling to the UK from other EU Member States should check the requirements with the authorities of the Member State concerned.
The UK Border authorities recognise the List of Travellers form as a travel document from those third country pupils travelling to the UK as part of a  school excursion from other EU Member States, if the following requirements are met:

• Pupils must have photographic ID or a recent photograph attached to the List of Travellers form;
• The List of Travellers form must be authenticated by the responsible authority in the appropriate Member State to confirm the pupils' residence status and their right to re-entry.

To take account of differing educational schemes in Europe there are no specific age limits included in this provision.

Full details of the Council Decision can be found on the European Union website.

A schoolchild travelling in such a group may insist on applying for a visa. In such cases an application may be accepted and the visa fee charged.

21.2.4 - The Uniform Format Vignette
In March 1995 the Council introduced a Uniform Format Visa Vignette (UFV) for short stay visits. The relevant regulation allows for visas for other purposes (e.g. settlement) to be issued on UFVs. However, the UK has decided to continue to use the existing UK vignette for settlement and other long stay visas, and where an entry clearance or EEA family permit is required or requested.

21.2.5 - The Schengen Convention
The Schengen Convention which provides for the abolition of internal frontier controls (and a wide range of external frontier, judicial and police co-operation measures to compensate for that), entered into force in March 1995. Although the Convention was outside the framework of the EU, ten of the original fifteen EU states signed. Full membership of the convention was originally restricted to EU member states but the two non-EU countries of the Nordic Passport Union, Norway and Iceland are gradually becoming full members. The UK is not a party to the Schengen agreement. The Amsterdam Treaty incorporates Schengen provisions into the EU and the UK may participate in some Schengen co-operation. At overseas Posts, UK missions should participate in any Schengen group co-ordination meetings if invited to do so (and report any significant points to UK Border Agency, Visa Services Directorate).

21.3 - Applications from EEA nationals
Provided their stay in the UK does not exceed three months, EEA nationals are not required to exercise a Treaty right (for example by working). Those EEA nationals who will be in the UK for more than three months will have a right of residence as long as they remain a qualified person (see regulation 6 of the Regulations). They may apply to the Home Office for a registration certificate which confirms their right of residence under EC law. Registration certificates are normally valid for five years.

21.3.1 - EEA nationals who wish to practice a profession in the UK
EEA nationals who wish to practice a profession in the UK (e.g. lawyers, architects, chemists, opticians, accountants, veterinary surgeons) are still subject to any restrictions or regulations which may govern the practice of their profession in the UK. They should therefore contact the appropriate professional governing body before seeking to establish themselves in the UK.

21.3.2 - EEA nationals who are exempt from control
Diplomats and officials of EEA countries, members of the European Commission and their families are exempt from control. Their travel documents are not endorsed. EEA nationals and their family members are exempt from control under the Immigration Rules.

21.3.3 - EEA nationals and the Channel Islands and the Isle of Man
See the Chapter 1 Annex 6 on entry clearance for the Channel Islands and the Isle of Man for instructions on EEA nationals and family members.

21.4 - The EEA family permit
An EEA family permit is a document similar to an entry clearance which has been given the name "EEA family permit" to distinguish it from a visa or entry clearance issued under the Immigration Rules. Instead, EEA family permits are issued under the Immigration (European Economic Area) Regulations 2006 (Annex 21.4) and not the Immigration Rules.

Non-EEA family members of EEA nationals should get an EEA family permit before they travel to the UK, which will confirm their status as an EEA family member.

For those leaving and re-entering the UK a valid UK residence card confirms their status as a family member of an EEA national exercising treaty rights in the UK.

If the family member is travelling independently of the EEA national and will not be joining the EEA national in the UK they will need to satisfy the normal entry clearance requirements for third country nationals under the Immigration Rules. For example, the Indian wife of a French national travelling to the United Kingdom for a shopping trip while the French national stayed behind will require a visa.

Please note, if a family member who is travelling with, or is to join the EEA national in the UK requests a visit visa, you should offer him (or her) the option of applying for a family permit under EC law free of charge.

Please see 21.4.21 for information about Swiss nationals and their non EEA family members.

21.4.1 - Handling and assessing applications for EEA family permits
Under EC law, priority must be given to applications for family permits. Wherever possible a decision should be made at the time it is lodged or after the interview is conducted. Applicants for EEA family permits should not be put into a settlement queue and an interview should be conducted as soon as possible. However, there is no requirement in the Regulations to say that EEA Family Permits must be issued on the day the application is made. Where doubts exist (for example whether applicants are related as claimed) further enquiries may be made, but these should also be given priority.

Requirement to demonstrate lawful residence:

• The case of Akrich, established that the right of movement for a family member is only derived if they are lawfully resident in an EEA member state. This requirement has been inserted into the EEA Regulations. Anyone who has a valid visa or entry clearance, and who is abiding by the conditions of that entry clearance, can be considered to be lawfully resident in that Member State. This would normally be in the form of the local equivalent of leave to enter / remain as a family member of a national of the member state in which they are residing. Or, alternatively, an EEA residence card would normally be held if they are the family members of an EEA national residing in a member state of which they are not a national.
• The non-EEA national could equally have entered the country in some other category (visitor, student etc) and would still be considered as lawfully resident in that Member State. For example, an Indian national married to a French national, who had obtained a visa to enter France as either the spouse of the French national or in some other category (as a visitor, student or work permit holder etc), would be considered 'lawfully resident' in France, if, at the time of application, they were abiding fully by the conditions of that visa.
• Those with valid Schengen visas would be considered lawfully resident in all Schengen states. If there are cases where you are not sure whether an applicant can be considered as lawfully resident, please refer the details to ECO Support.
• Evidence of an outstanding application to reside in the member state in question should not be considered as sufficient evidence of lawful residence, and the applicant should be advised to await the outcome of their application before seeking a family permit to enter the UK. This does not apply to those that have entered the country legally and are now applying for a residence card. It only applies to those that have entered the country, for example as asylum seekers, and still have their claim being processed. An asylum seeker who has been given temporary leave to remain in another member state whilst their asylum claim is considered would not qualify as lawfully resident for the purposes of issuing an EEA family permit.

If the application is made from outside the EEA:

• Under Regulation 12(1)(b)(ii), if the applicant cannot demonstrate lawful residence in an EEA Member State (includes those applying from outside the EEA), they also meet the requirements of the relevant Immigration Rules for leave to enter the UK as the family member of the EEA national where the EEA national is a person present and settled in the UK, in order to qualify for an EEA Family Permit. This would include refusal considerations on general grounds under Paragraph 320. If they satisfied the Rules, they must be issued with an EEA Family Permit free of charge.

In assessing an application, you should be satisfied that:

• the applicant is related as claimed to the EEA principal,
• any children over the age of 21 and other family members (other than the EEA principal's spouse and children under 21) are wholly or mainly financially dependent on the EEA principal or satisfy one of the other conditions for extended family members (see Annex 21.1). The children of any age of a student should always be dependent.

In the case of "extended" family members you should consider dependence to be:

• financial, or
• 'living under the same roof' - to mean a period of at least six months in the country of origin, and
• the particular facts of the case merit issuing a family permit. See Annex 21.1 for a definition of extended family members as well as more information.

In addition, that:

• the EEA principal is intending to travel to the UK with the applicant within 6 months of the date of the application and there is evidence that the EEA national will, on arrival, be residing in the UK in accordance with the Regulations, or the applicant intends to travel to join the EEA national who is already residing in the UK in accordance with the Regulations. Provided his/her stay in the UK does not exceed three months, an EEA national is not required to exercise a Treaty right (for example, by working). An EEA national who will be in the UK for more than three months will have a right of residence for as long as he/she remains a qualified person (see Regulation 6 of the Regulations).

A qualified person is an EEA national who is in the UK exercising a Treaty right. This must be one of the following:

• a jobseeker
• a worker,
• a self-employed person,
• a self-sufficient person,
• a student, or
• a worker or self-employed person in the UK who has ceased activity. (For example a worker who has ceased working due to permanent incapacity or someone taking early retirement.)
• a person on benefits can, in some cases be a qualified person - please see Paragraph 21.4.3 for further details.

Where the EEA national is already in the UK, evidence that:

• the EEA principal is installed in the UK and is economically active or is exercising some other form of Treaty right.

See Annex 21.2 for examples of questions and evidence that may be asked for.

In addition to these, you should be satisfied that neither the applicant nor the EEA principal should be excluded from the UK on public policy, public security or public health grounds.

21.4.2 - Job Seekers
Under the EEA Regulations, EEA national jobseekers can enter the UK to look for work and can bring their families with them. The definition of a jobseeker is:

• A person who enters the United Kingdom in order to seek employment and can provide evidence that he/she is seeking employment and has a genuine chance of being engaged. In most circumstances, we would expect an EEA national to be economically active within six months.
• A jobseeker should be able to support himself/herself and his/her family members without becoming an unreasonable burden on the UK. If the jobseeker is not considered a qualified person he/she will lose his/her right to reside in the UK.

21.4.3 - Benefits
When an EEA national is in the UK claiming benefits he or she would continue to be considered a qualified person if they were:

• a worker who is in receipt of top-up funds or tax credits for low income;
• an EEA national who has been working in the UK but who has become temporarily unemployed (due to incapacity or involuntary unemployment) and is claiming public funds. For example, a worker would still be considered temporarily incapacitated for as long as a doctor confirms that they cannot work but have the intention to do so. We would expect this to be for no longer than six months, although there may be cases where this could be extended (for example if we believe the EEA national has a reasonable prospect of returning to work or finding a job);
• a person who has ceased work due to retirement or permanent incapacity caused by an accident at work or after at least two years of employment/self-employment in the UK.

If the EEA national has been claiming public funds for more than six months and is claiming to be temporarily unemployed due to incapacity or involuntary unemployment the case should be referred to the Home Office for consideration.

A job seeker who is in the UK and claiming benefits would not be considered a qualified person for the purpose of issuing an EEA family permit to their family members if they had been in the UK for longer than the initial period of three months and were not exercising Treaty Rights.

In addition, while the fact that someone may be claiming benefits in their own country or country of residence is not in itself a sufficient ground for refusal, it may contribute to a decision that they would not be able to support themselves in the UK.

However, it should be noted that the income of both the EEA national and the non-EEA family member can be taken into account when assessing whether they will have enough money to support themselves during their stay in the UK (or if the non-EEA has no declared income, that the income of the EEA national should be able to support both of them).

21.4.4 - Unmarried partners, fiancés or fiancées and civil partners
Since 30 April 2006, EC Law recognises civil partners as family members. They have the same rights as spouses under EC law. The 2006 Regulations also introduced the category of "durable relationships". In order to be considered durable partners they must meet the same criteria for Unmarried Partners under the Immigration Rules.

Applicants applying under the durable relationship category should be considered as "extended family members". There are certain conditions that must be met before they are regarded as extended family members, such as the fact that they should have "lived together in a relationship akin to marriage which has subsisted for two years or more".

With an application of this kind the ECO should, therefore, check the application against the criteria laid down in the Immigration Rules when assessing the application. ( Paragraphs 295AA-295 of the Immigration Rules refer).

If the applicant meets the requirements of the Unmarried Partner provisions of the Immigration Rules (except those concerning entry clearance) and also the requirements to be met by extended family members under teh EEA Regulations then they can be issued with an EEA family permit, free of charge.

Fiancés/fiancées and proposed civil partners who do not qualify as unmarried partners are not recognised under EC law. However, the UK amended the Immigration Rules in 2002 (Paragraph 290A) to allow fiancés/fiancées and proposed civil partners of EEA nationals to enter the UK under the Fiancé(e) Rules. For the purpose of these provisions, we would consider and EEA national to be "present and settled" if they were a qualified person in the UK.

A family permit should not be issued to the fiancé/fiancée or proposed civil partner of an EEA national. They would need to apply for the relevant entry clearance under the Immigration Rules and pay the appropriate fee.

21.4.5 - EEA national minor children (“Chen”)
In an application concerning an EEA minor child and his/her non-EEA national family members, the family members would not be entitled to a family permit and would instead need to apply under the Immigration Rules and pay the appropriate fee. Further guidance on requirements and eligibility can be found in Annex 21.3. See Chapter 5 of the ECIs for further guidance.

The Home Office does not expect too many applications in this category.

21.4.6 - Adopted children
The UK currently recognises adoptions that have legally taken place in the majority of EEA Member States (as they are either included on the Designated list or because they are Hague Convention contracting states). Switzerland is also on the Designated list of recognised countries. The exceptions to this are Hungary, which has signed the Hague Convention but not yet acceded to or ratified it and Liechtenstein (because it is not on the designated list, nor has it signed the Hague convention). In some (very rare) circumstances adoption orders made in Convention countries may not automatically be recognised in the UK. This is because only adoptions made as 'convention' adoptions are recognised (based on Article 17(c) agreements). In general, however, a child legally adopted in one of the recognised Member States should qualify for an EEA Family Permit provided that they meet the relevant criteria.

If the United Kingdom does not recognise a country's adoption orders an EEA national would need to re-adopt the child in the UK (or in any country whose adoption orders are recognised by the United Kingdom) in order for the relationship to gain legal recognition in the UK. This would apply if, for example, an EU national adopted a child in a country not on the designated adoption list.

If you receive an application for a family permit concerning an adopted child, and you are unsure how to proceed you should refer the case to the European Casework Group in the Home Office for guidance (see Paragraph 21.4.11 for details).

21.4.7 - Dual nationals / Irish / EEA nationals holding settled status
Dual nationals, Irish nationals or EEA nationals holding settled status may choose to bring their family members to the UK either on an EEA family permit or via the Immigration Rules.

If the applicants choose to be treated under EC law they should be issued with an EEA family permit free of charge. If they choose to come under the Immigration Rules, they must pay the appropriate entry clearance application fee.

In addition, if the dual national / Irish or EEA national holding settled status chooses to bring his/her family members under EC law, the family members would not be entitled to apply for permanent residence until they had resided with the Irish / Dual or EEA national in the UK for five years. However, if they choose to come under the Immigration Rules they would be entitled to apply for settled status after two years.

You are not under any duty to ask sponsors who say that they are British whether they hold, or could hold, dual nationality. The onus is upon the applicant to provide this information if he/she thinks it is relevant to the application. If dual nationality is mentioned by the applicant, you should explain the choice of whether to come under the Immigration Rules or EC law but should make clear that evidence of EEA nationality (for example EEA passport) will be required. A possible entitlement to dual citizenship (for example birth in Ireland) is not sufficient.

21.4.8 - Non-EEA Family Members of British Nationals (Surinder Singh cases)
A British national and his/her non-EEA family members can only benefit from free movement rights if they meet the criteria established in the ECJ case of Surinder Singh. The case stated that nationals of a Member State who are exercising an economic Treaty right (i.e as a worker or self-employed person) in another Member State will, on return to their home state, be entitled to bring their non-EEA family members to join them under EC law.

Example: A British national is exercising an economic Treaty right in Germany and living with his non-EEA spouse and children. On the British national's return to the UK, his non-EEA family members can apply for an EEA family permit to join him under EC law.

The Surinder Singh judgement is incorporated into the EEA Regulations in Regulation 9. Family members of British nationals who meet the requirements of Regulation 9 are treated as family members of EEA nationals for the purposes of the EEA Regulations.

Applications for EEA family permits must meet the following criteria:

• The British citizen is residing in an EEA Member State as a worker or self-employed person or was doing so before returning to the UK.
• If the family member of the British citizen is their spouse or civil partner, they are living together in the EEA country or they entered into the marriage or civil partnership and were living together in that EEA country before returning to the UK.
• The family member is lawfully resident in the EEA country where the British citizen is working. If the family member is not lawfully resident, they will need to satisfy the requirements of the Immigration Rules for leave to enter the UK as the family member of the British national.

Because EEA nationals have an initial three month right of residence in the UK, there is no requirement for the British national to be a qualified person on arrival. Therefore, an EEA family permit can be issued to the family member of a British national even if they are only visiting the UK with the British national before returning to the Member State where they are resident.

It does not matter if the only reason the British national went to another Member State to exercise an economic Treaty right was so that he/she could come back to the UK with his/her family members under EC law.

You should seek advice from ECO Support where you are unsure about the decision to be taken in applying the Surinder Singh judgement.

21.4.9 - Delaying a decision
You can delay a decision when you have serious doubts about the application and wish to make further enquiries. For example when there are real grounds for doubting the validity of an application, when essential documentation has not been provided, or when referral to London is necessary. In general, the longer the delay, the stronger the grounds for doubt need to be.

Grounds for making further enquiries need to be carefully considered and recorded in case they are needed to formulate a defence against any charges brought against HMG by the applicant or European Commission.

21.4.10 - Charging fees
No charge should be made for any application for an EEA family permit made by a non-EEA national family member of an EEA national or by the family member of a British national, where the British national is exercising an economic Treaty right in an EEA state or Switzerland. Visa applications by non-EEA national family members of EEA nationals attract the usual fee for the category in which they are applying.

21.4.11 - Referral to the Home Office
If an ECO has to refer or defer a case it should be headed as:
"Urgent. Non-EEA family member of an EEA National"
ECOs must refer or defer the following cases to the Home Office (European Casework Group) for the following reasons:

• Where the ECO is minded to refuse an EEA family permit application on one of the three public grounds so that European Casework Group can make the decision.
• Where an applicant is the subject of a deportation or exclusion order. The applicant must apply for the order to be revoked and if successful, upon application for the family permit, the case must be referred to European Casework Group.
• Where the ECO is in doubt about the appropriate course of action to take when assessing an application and

  UK Border Agency, Visa Services Directorate (ECO Support) have recommended referral/deferral to European Casework Group.

You should provide a full explanation of the case including supporting documents where these are available. The referral must also indicate whether a decision is sought by post or if further information is required from European Casework Group.

Referrals must be sent to the Home Office via the HOreferralsLon@fco.gov.uk mailbox.

21.4.12 - Referral to UK Border Agency, Visa Services Directorate
Applicants who would normally be referred on nationality grounds should still be referred to UK Border Agency, Visa Services Directorate (VRUMVID). Referral should be made by e-mail to UK Border Agency, Visa Services Directorate and marked "Urgent: Non-EEA family member of EEA national" after the preamble.

21.4.13 - DNA testing of dependants
One of the principal criteria which applicants for Family Permits must satisfy is that they are related as claimed to the EEA national or the EEA national’s spouse. In cases where applicants are unable to show, on the basis of documentary evidence, that they are related as claimed, DNA testing might be appropriate. We are under an obligation to facilitate the issue of entry clearances under Community Law. However, a refusal to undergo DNA testing should not be grounds for refusal.

21.4.14 - Issue of a family permit
The applicant should be issued a Category D Vignette. There are two types of endorsement on a family permit. This will be either:

EEA FP: FAMILY MEMBER: TO JOIN/ACC [Name of EEA national]

An EEA family permit should be made valid for 6 months from the date of issue and should carry the name of EEA national in the 'add endorsement' field. You should also indicate that the non EEA national will be accompanying or joining the EEA national in the UK. 

You should explain to the permit holder that:

• the permit will indicate to the Immigration Officer the status of the holder as a family member of a person exercising Treaty Rights
• the Immigration Officer retains the right to refuse entry to a permit holder:
  • if the revocation is justified on grounds of public policy, public security or public health; or
  • the person is not at that time the family member of a qualified person.

21.4.15 - After entry
You should also explain that after entry to the UK the holder could apply to the Home Office for a residence card.

The possession of a valid residence card (presently a Home Office endorsement in the holder’s passport) is sufficient for re-entering the UK providing the holder continues to qualify as a family member of an EEA national (as defined in Regulations 7, 8, 9 and 10), and is subject to the normal derogations of public policy, public security and public health.

Please note, registration certificates and residence cards are not currently required in the UK in order to be considered legally resident. (EEA nationals and their family members may choose to apply for this documentation as confirmation of their right of residence).

21.4.16 - Local refusal of an application for an EEA family permit
You may refuse a family permit locally, without reference to the Home Office or to the UK Border Agency, Visa Services Directorate, in the following circumstances:

1. The EEA national is not in, or will not be going to the UK.
   The following form of words should be used:

   You have applied for admission to the United Kingdom by virtue of European Community Law as the family member of a European Economic Area national who is exercising, or wishes to exercise, rights of free movement under the Treaty establishing the European Community in the United Kingdom, but I am not satisfied that the European Economic Area national of whom you are a family member is in, or will be coming to, the United Kingdom.

2. The applicant does not provide any (or adequate) evidence to support his/her claim to be a family member of an EEA national.
   Where the applicant has failed to provide a marriage certificate, birth certificate or other evidence that they are related as claimed. This also include instances where the applicant has submitted a forged passport or marriage certificate.

   The following form of words should be used:

   You have applied for admission to the United Kingdom by virtue of European Community Law as the family member of a European Economic Area national who is exercising, or wishes to exercise, rights of free movement under the Treaty establishing the European Community in the United Kingdom, but in view of your failure to produce (genuine) documentary evidence as requested, I am not satisfied that you are related as claimed.

3. The applicant is not genuinely dependant on the EEA national or his/her spouse.
   This does not apply to spouses/civil partners or children aged under 21, except in the case of a student, where the children must be dependent.

   The following form of words should be used:

   You have applied for admission to the United Kingdom by virtue of European Community Law as the family member of a European Economic Area national who is exercising, or wishes to exercise, rights of free movement under the Treaty establishing the European Community in the United Kingdom, but I am not satisfied that you are dependant as claimed.

   If the applicant has provided evidence that they lived as part of the EEA national's household it will be necessary to add the following wording:

   Furthermore I have considered your application in accordance with Regulation 8 of the Immigration (European Economic Area) Regulations 2006 but I am not satisfied that there are sufficient grounds for issuing you with an EEA family permit on this basis.

4. Extended family members
   In cases involving extended family members - the applicant may have provided evidence of dependency or that he/she lived as part of the EEA national’s household prior to coming to the UK. However, there are insufficient grounds to believe that the EEA national would be deterred from exercising his/her Treaty rights if their family member could not come to the UK.

   The following form of words should be used:

   You have applied for admission to the United Kingdom by virtue of European Community Law as the family member of a European Economic Area national who is exercising, or wishes to exercise, rights of free movement under the Treaty establishing the European Community in the United Kingdom. I have considered your application in accordance with Regulation 8 of the Immigration (European Economic Area) Regulations 2006 but I am not satisfied that there are sufficient grounds for issuing you with an EEA family permit.

5. We are satisfied that the EEA national is not a qualified person because there is no evidence of Treaty rights being exercised:
   The following form of words should be used:

   You have applied for admission to the United Kingdom by virtue of European Community Law as the family member of a European Economic Area national who is exercising, or wishes to exercise, rights of free movement under the Treaty establishing the European Community in the United Kingdom, but I am not satisfied that the European Economic Area national of whom you are a family member is a qualified person.

   Please note: because of the initial right of residence created by Directive 2004/38, we cannot refuse someone on the basis that that we are not satisfied that they will be exercising a Treaty right in the UK from day one.

6. The applicant is a party to a marriage of convenience
   The following form of words should be used:

   You have applied for admission to the United Kingdom by virtue of European Community Law as the family member of a European Economic Area national who is exercising, or wishes to exercise, rights of free movement under the Treaty establishing the European Community In the United Kingdom, but I consider this to be a marriage of convenience.

7. The applicant is not lawfully resident in a Member State
   In refusing the application on this ground you must be satisfied that you have given the applicant every opportunity to provide you with evidence of their lawful residence in a Member State. As directed by Regulation 12(1)(b)(ii) you also need to consider whether the applicant would have met the relevant requirements of the Immigration Rules where they are applying for leave to enter as a family member of someone present and settled in the UK. This would include the general grounds for refusal under Paragraph 320.

   The following form of words should be used:

   You have applied for admission to the United Kingdom by virtue of European Community Law as the family member of a European Economic Area national who is exercising, or wishes to exercise, rights of free movement under Treaty establishing the European Community in the United Kingdom. However you have failed to produce evidence of your lawful residence in a Member State and I cannot be satisfied that you are lawfully resident in a Member State and thus have a right of movement as the family member of an European Economic Area national.

   I have therefore considered you application under (insert paragraph) of the Immigration Rules as directed in Regulation 12 (b)(ii) of the EEA Regulations. However I am not satisfied that you qualify for leave to enter as a family memberof an EEA national where the EEA national present and settled in the UK because: (list reasons and state which Rules they have failed to meet).

21.4.17 - Refusal on grounds of public policy, public security or public health
The provision for refusal of an EEA family permit on the basis of public policy, public security and public health (Regulation 12 (5)) is quite distinct from the provision in the Immigration Rules for refusal on non-conducive, criminal conviction and medical grounds. If you consider an application should be refused, you must refer the case to the Home Office European Casework Group for a decision (see 21.4.11 above.

If an applicant has not admitted a conviction, but other information is available suggesting the possibility of a serious conviction, you should ask the applicant to produce a police conduct certificate before deciding whether to refer.

Regulation 21 of the EEA Regulations states that a person is not to be admitted to the UK on the grounds that he/she is an EEA national (or family member of an EEA national) if his/her exclusion is justified on the grounds of public policy, public security or public health.

Right of appeal against refusal
An applicant for an EEA family permit has a full right of appeal against refusal under the EEA Regulations, as it constitutes an "EEA decision", which is a decision under the EEA Regulations concerning a person's entitlement to be admitted to the UK.

Like appeals against entry clearance decisions, the appeal is heard in the UK. However, the family member would not have an entitlement to attend the hearing in the UK. A person claiming to be the family member of an EEA national may not appeal under the EEA Regulations where: they have not produced any evidence of the EEA national family member's nationality, or, that they are related, as claimed, to the EEA national.

21.4.18 - British nationals who are members of HM Forces or Crown diplomat
A British national who is resident in another Member State as a member of HM Forces or is a Crown diplomat is not to be treated as resident in that state in the exercise of a Treaty right. Similarly, a British national dependent of a member of HM Forces or a Crown Diplomat, who resides in another Member State with the British serviceman/servicewoman or diplomat, is not to be regarded as exercising a Treaty right in that Member State. Such persons cannot benefit from the Surinder Singh judgement.

21.4.19 - Deportation and exclusion orders
Where an applicant is the subject of an extant deportation or exclusion order the Home Office will first have to consider revocation of the DO before you can consider an application based on EC law. You should refer any such case to the European Casework Group (see Paragraph 21.4.11) in the first instance.

21.4.20 - Applications from non-EEA Nationals working in the EU (Van der Elst)
In the case of Raymond Van der Elst, the owner of a Belgian company, the ECJ ruled that provided certain criteria are met, non-EEA nationals working for an EU employer in the EU should be allowed to provide services in another Member State without the need to obtain a work permit.

In practical terms, this means that an established non-EEA employee of an EU company in the EU can come to the UK to provide a service on behalf of the company without a work permit. Entry clearance is mandatory for both visa and non-visa nationals.

The requirements to be met by the employee are that he/she:

• is lawfully resident in the EU Member State in which the employer is established
• is lawfully and habitually employed by an employer who is temporarily providing a service in the UK
• does not intend to take any other employment
• intends to leave the UK at the end of the period during which his employer is providing the service.

Fees - Applications are gratis

Endorsement
EMPLOYMENT WITH (NAME OF COMPANY)

Dependants
Applications from family members should be handled as in Paragraph 21.4 and Paragraph 21.6.

Refusals
If any of the criteria above are not met, the application should be refused on the grounds that entry is being sought for employment for which a work permit is required. As the employee has no work permit, there is a limited right of appeal against such a refusal. Applications from persons not in the Member State in which they reside should not be accepted under Paragraph 28 of the Rules.

21.4.21 - The Swiss Family Permit
On 1 June 2002 the Agreement between the EC and its Member Statesand the Swiss Confederation on the Free Movement of Persons came into force. In general terms, the Agreement confers on Swiss nationals and their family members the same rights as those enjoyed by EEA nationals and their family members.

The Agreement does not mean that Switzerland is part of the EEA, or that Swiss nationals are EEA nationals.

Swiss family permits should be assessed under the same criteria as EEA family permits. The endorsement should read:

FAMILY MEMBER SPOUSE/SON/DAUGHTER/FATHER/MOTHER (as appropriate) OF A SWISS NATIONAL WHO WILL BE TRAVELLING WITH THEIR SWISS FAMILY MEMBER
or
FAMILY MEMBER SPOUSE/SON/DAUGHTER/FATHER/MOTHER (as appropriate) OF A SWISS NATIONAL WHO WILL BE JOINING THEIR SWISS FAMILY MEMBER IN THE UK

A Swiss family permit should be made valid for 6 months from date of issue.

Non-EEA national workers of Swiss companies and Swiss service providers - Swiss posted workers
Non-EEA national workers (posted workers) of Swiss companies may come to the UK to provide services on behalf of those companies. This is similar to Van der Elst applications (see Paragraph 21.4.20 above). The main difference between Swiss posted workers and Van der Elst applications is that Swiss posted workers are only permitted to work in the UK for a TOTAL of 90 days in one calendar year. Visas should be limited to the period of applicants' intended stay in the UK, up to 90 days.

Fees - Applications are gratis.

Endorsement:
EMPLOYMENT WITH (NAME OF COMPANY)

Observation:
SWISS POSTED WORKER

Dependants
Unlike Van der Elst applicants, Swiss posted workers may NOT be accompanied by their family members.