European Economic Area Family Permit - Legal Framework

Legal Framework

The framework for the issue of an EEA family permit is defined in the Directive 2004/38/EC on the right to move and reside freely This directive defines the right of free movement of EU citizens, which is one of the Four Freedoms (European Union) and enshrined in the Treaty of Rome. The directive has been incorporated in UK legislation by The Immigration (European Economic Area) Regulations 20062 (see EEA Regulations (UK)).

It should be noted, however, that according to article 5, paragraph 2 of the Directive:

2. Family members who are not nationals of a Member State shall only be required to have an entry visa in accordance with Regulation (EC) No 539/2001 or, where appropriate, with national law. For the purposes of this Directive, possession of the valid residence card referred to in Article 10 shall exempt such family members from the visa requirement.

This clearly states that possession of a visa (and of an EEA Family Permit, which is a visa-like document) can only be asked from family members not in possession of a residence card issued by any EEA country or Switzerland. This, unfortunately, is not the case, as the UK asks all non-EEA family members to apply for an EEA Family Permit.

This is due to the faulty incorporation of the Directive by The Immigration (European Economic Area) Regulations 2006, where article 2:

  • "residence card" means a card issued to a person who is not an EEA national, in accordance with regulation 17, as proof of the holder's right of residence in the United Kingdom as at the date of issue;
  • "permanent residence card" means a card issued to a person who is not an EEA national, in accordance with regulation 18, as proof of the holder's permanent right of residence under regulation 15 as at the date of issue;

Limits the validity of the residence card en lieu of a visa solely to the cards issued by the United Kingdom.

Several complaints have been made to the European Commission, notably Complaint number 2008/4161, as well as petitions have been brought before the European Parliament, notably Petition number 1307/2007, seeking to resolve this problem. Both named documents were brought before the respective bodies by Mr and Mrs Richard Willmer, a UK citizen exercising treaty rights (i.e. working) in Italy and his Russian wife, but who represent many other EEA citizens who cannot reasonably go to the UK because of their non-EEA family member's need for an EEA Family Permit.

It is hoped that soon EEA family members already in possession of a residence card as a family member issued by an EEA state or Switzerland will be able to travel freely to the United Kingdom, as guaranteed by the Directive, without the need to apply for this visa-like document.

Read more about this topic:  European Economic Area Family Permit

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