Differences of approach between EU and UK law

There is a very important difference of principle between UK immigration law and EC freedom of movement rights. In UK law, if a foreign national wishes to come to the UK he or she must first make an application. There is no pre-existing ‘right’ to enter the UK . Stay in the UK is contingent on it being permitted by the Secretary of State. The position is very different in EC law. Certain individuals have a right to reside in the UK by virtue of their citizenship of another EEA country and their economic activities, or through their relationship with such a person. The UK is bound to recognise and promote this right.

The case of SSHD v Akrich (Case C-109/01; 23 September 2003 provides a useful illustration of the principle that Member States must implement EEA to the letter, as opposed to examining a persons real intentions or motives. The Home Office used to assert that the motives of a British citizen when moving to another Member State will affect his or her rights under Surinder Singh (see below) on return, and that those whose motive for moving is to maintain their family life in Europe and to return under Surinder Singh when domestic law would normally preclude this cannot take advantage of EU rights. In Akrich the ECJ ruled that if a marriage was genuine, the fact that the spouses installed themselves in another Member State in order, on their return to the state of which the EC spouse was a national, to obtain the benefit of rights conferred by Community law, was not relevant to the assessment of their legal situation.

Nationality issues

Given the fact that those exercising EU free movement rights are absolved from any need to obtain leave to enter or remain, it might be thought that they would give birth to British citizens if present in the UK at the time of birth, as the parents would be effectively settled here, even without having applied for and been granted indefinite leave to remain. As a result, children born to those exercising EU free movement rights would be entitled to British nationality and therefore to a British passport.
This was the accepted position before the 2000 EEA Regulations took effect, as from 2 October 2000, only “a person who has been granted permission to remain in the United Kingdom indefinitely” will normally qualify (although the self-employed who have ceased activity, their family members, and the family members of the deceased self-employed mentioned above will give birth to British citizens.

Dual nationals (e.g. those who hold dual British and Irish citizenship) exercising rights in the UK , can opt for the more convenient treatment under EC law or U.K law, but can never lose their EC rights. They might choose to take a particular route to secure stay for family members for the reasons set out below.

They need not have lived in both countries to be able to rely on EC rights.

Choice of method of entry

An EEA citizen who is settled in the UK may have a choice as to whether to pursue an application under the rules or under EC law.

The choice of whether to seek admission of a dependant under the Immigration Rules or the under EC law should be carefully considered, as it can have longer term consequences.

For example whilst opting for the EC law route may ensure swifter entry than seeking to obtain entry clearance to the UK for the foreign spouse of a British national, the applicant may then find that choosing the European route has forestalled an application for ILR, because the immigration rules give speedier access to indefinite leave to remain for a spouse (under the immigration rules for normal spouses there is a two year “probation” period for spouses (rule 287(a)(i)(a)) whereas under the Immigration (EEA) Regulations 2006, access to settlement is available for qualified persons and their family members only after they have remained in the UK for five years.

The benefits of relying on the EC law route will include the absence of any requirement for prior entry clearance, the absence of maintenance and accommodation requirements, the absence of any limitations on switching, the chance to be reunited with children and grandchildren at any age (subject to showing dependence if they are over 21), and with parents and grandparents and extended family, and that the right would run from the marriage rather than the Home Office acceptance of an application under the Rules.