The position of EEA nationals is special. They do not require leave to enter the UK because they have an enforceable Community right of admission. Section 7(1) of the Immigration Act 1988 and Regulation 11 of the Immigration (EEA) Regulations 2006 SI No.1003 which grants an automatic right of admission on production of a valid national identity card or passport.
Whether an EEA national is a person subject to immigration control depends on whether they are exercising an enforceable European Community right (Immigration Act 1988, s.7(1)), i.e. whether they have a right to reside. Their right to reside derives mainly from Directive 2004/38/EC ("the Directive"). This has been given domestic effect in the UK by the Immigration (EEA) Regulations 2006 SI No. 1003. However, advisors should check the Directive and the regulations on problematic cases because they are not identical.
An EEA national not exercising a right of residence has no right to remain in the UK and, accordingly, requires leave to remain. These EEA nationals are persons subject to immigration control: see Abdi & Ismail v Barnet LBC  EWCA Civ 383,  HLR 23, 6 April 2006.
In all cases, where an EEA national has a right of residence he/she will not be a person subject to immigration control.
There are 3 classes of right to reside provided by the Immigration (EEA) Regulations 2006:
- Initial right of residence pursuant to Regulation 13 not exceeding 3 months, valid identification card or passport, must not become an unreasonable burden on the social assistance system of the UK;
- Extended right of residence, pursuant to Regulation 14 - available only to qualified persons;
- Permanent right of residence pursuant to Regulation 15 - principally available to EEA nationals who have resided in the UK in accordance with the Regulations for a continuous period of 5 years and to workers/self-employed persons who have ceased activity.
The Initial Right to Reside
EEA nationals holding this right are expressly excluded from housing assistance and made ineligible by the AHH(E)(E) Regulations .
Extended Right to Reside
Most applications from EEA nationals will centre upon the extended right of residence and whether the applicants are qualified persons. The Immigration (EEA) Regulations 2006 make detailed provision for the entry into the UK of EEA nationals. Regulation 14 confers on qualified persons the right to reside in the UK without any requirement for leave to do so under immigration law. Regulation 6 defines a qualified person as :
Retention of the Right to Reside
Under I(EEA) 2006, Regulation 10, a family member of a qualified person retains the right to reside in certain circumstances connected to a change in the family circumstances:
- Death of qualified person - the family member (who is not an EEA national) must have resided in the UK in accordance with the regulations for at least the year immediately preceding the death of the qualified person AND if he were an EEA national would be a worker, a self-employed person or a self-sufficient person: Regulation 10(2) & (6);
- Children in school - children in education retain the right of residence after the death or departure from the UK of the EU citizen who was a qualified person. The child must have been attending an educational course in the UK immediately before the qualified person died or ceased to be a qualified person on ceasing to reside in the UK and must continue to attend such a course: Regulation 10(3).
- Parent of children in school - the parent or adult (irrespective of their nationality) who has 'actual custody' of the children in school also retains the right to reside to enable the children to remain in the educational institution until they have finished their studies: Regulation 10(4);
- Divorce etc - in certain circumstances a family member will retain the right to reside where the marriage is ended by divorce or annulment or the civil partnership is terminated. Where they are not an EEA national, they must be a worker, a self-employed person or a self-sufficient person. The conditions under Regulation 10(5) include residence in the UK in accordance with the regulations at the date of the termination and either that:
- the marriage or civil partnership lasted for 3 years prior to the initiation of the termination proceedings and the parties had resided in the UKfor at least 1 year during its duration; or
- the former spouse/civil partner of the qualified person has custody of a child of the qualified person; or
- the former spouse/civil partner of the qualified person has the right of access to a child of the qualified person under 18 years old and a court has ordered that access must take place in the UK; or
- there have been particularly difficult circumstances warranting the continued right of residence, for example, domestic violence.European Economic Area Nationals and The Right To Reside Family membersA Family member is defined in the Immigration (EEA) Regulations 2006, reg 7 as:
- spouse or civil partner;
- direct descendants including those of a spouse or civil partner who are:
- under 21; or
- their dependants
- dependent direct relatives in the ascending line including those of a spouse or civil partner; or
- "extended family members" who have been issued with an EEA family permit, a registration certificate or a residence card and who satisfy the conditions in Regulation 8.In PG v VG  UKAIT 19, it was held that "direct" is not confined to the first generation but can include grandchildren, but not nieces, nephews, uncles or aunts. This approach was followed in Bigia & others v Entry Clearnace Officer  EWCA Civ 79, at para .Dependant in this context means that the family member needs the material support of the EEA national or his or her spouse in order to meet their essential needs in the country of origin: see Jia v Migrationsverket, Case C-1/05. Proof to establish material support may be adduced by any appropriate means and is not confined to financial dependency. In Pedro v Secretary of State for Work and Pensions  EWCA Civ 1358, the Court of Appeal held that the Directive did not specify when the dependency had arisen, nor did it require that the relative had to be dependent in the country of origin. It was sufficient if the dependency arose in the host Member State.In Metock & others v Minister for Justice, Equality and Law reform, Case Claimant- 127/08, the ECJ decided that the national law of Ireland was inconsistent with the Directive on the free movement of Union citizens insofar as it only permitted nationals of non-Member States to join family members in Ireland if those nationals had previously been resident in another Member State. Nothing in the Directive made its application conditional upon the applicant family member of a Union citizen having previously resided in a Member State. The definition of family member was not distinguished according to whether or not they had already lawfully resided in another Member State. It followed that the Directive had to be interpreted as applying to all nationals of non-Member States who were family members of a Union citizen, irrespective of where they had resided prior to their arrival. The Directive conferred upon such family members the right to join the Union citizen in the host Member State whether he had become established there before or after founding a family; either way a refusal by the host Member State to grant them a right of residence was equally liable to discourage that Union citizenfrom exercising his or her rights of residence. Limiting the application of the Directive solely to the family members of a Union citizen who "accompanied" or "joined" him was equivalent to limiting the rights of entry and residence of family members of a Union citizen to the Member State in which that citizen resided.On 2 June 2011 the Immigration (EEA) (Amendemt) Regulations 2011, SI No. 1247, amended the Immigration (EEA) Regulations 2006 to reflect the Metock decision.Extended Family MembersExtended family members, are those other than spouses/civil partners, direct descendants (either under 21 or dependent) or dependent direct relatives in the acscending line. They are defined by I(EEA) 2006, reg 8, as:
- a relative of an EEA national or his spouse or civil partner, who is dependent on the EEA national or is a member of his household, and who resides with or wishes to reside with the EEA national;
- a relative of an EEA national or his spouse or civil partner, who 'strictly' requires their personal care on serious health grounds;
- a relative of an EEA national who would meet the requirements for indefinite leave to enter or remain in the UK as a dependent relative of the EEA national if the EEA national were treated as a person present and settled in the UK;
- a partner of an EEA national (other than a civil partner) who can prove that he is in a durable relationship with the EEA national.Special provision is made by I(EEA)2006, reg 7(2) for family members of a student. A person is not a family member if he is a direct descendant or dependent relative in the ascending line after three months after the student has been admitted to the UK unless:
- the person is the dependent child of the student, or her spouse or civil partner; or
- the student is also a qualified person under one of the other categories.The rights of family members of EEA nationals are also set out in the I(EEA) Regulations 2006. Family members who are EEA nationals will in any event have the right of admission and the initial right to reside, but these rights are also given to family members who are not EEA nationals: Regulations 11(2) & 13(2). Further, whatever their nationality, family members will also be entitled to the extended right to reside for so long as they are the family member of a qualified person or a person with a permanent right to reside: Regulation 14 (2). A permanent right to reside is given whether there is continuous residence as a family member "in accordance with the regulations" for 5 years or where they are the family member of a worker or self-employed person who has ceased activity or, in certain circumstances, has died: Regulation 15.
The Permanent Right To Reside After Five Years
EEA nationals who have resided in the UK for a continuous period of five years obtain the right permanently to reside in the UK pursuant to I (EEA) Regulation 15 2006. Family members who are not EEA nationals but have resided with an EEA national for a continuous period of five years also obtain the right.
Workers or self-employed persons who have ceased employment (and their family members) also acquire a permanent right of residence. A person who was a family member of a worker or self-employed person has a permanent right to reside if:
• the worker or self-employed person has died;
• the family member resided with him immediately before his death; and
• the worker or self-employed person had resided continuously in the UK for at least the two years immediately before his death or the death was the result of an accident at work or an occupational disease.
The nature of the permanent right to reside has been the subject of several recent decisions of the ECJ. In Secretary of State for Work and Pensions v Taous Lassal & CPAG, C-162/09, it was recognised that the permanent right to reside contained in Article 16 of the Directive did not appear in previous legislation. However, continuous periods of five years' residence completed before the Directive came into force on 30 April 2006, and in accordance with the earlier legislation, must be taken into account for the purposes of the acquisition of the right of permanent residence under Art.16. Absences fro the host Member State of less than two consecutive years which occurred before 30 April 2006, but after a continous period of five years' legal residence completed before that date, do not affect the acquisition of the right of permanent residence pursuant to Art.16.
The decision was followed by the ECJ decision in Secretary of State for Work and Pensions v Maria Dias, C-325/09 in July 2011. Time spent in the UK by Ms Dias when she had no right to reside but was in possession of a residence permit granted by the national authorities, did not constitute legal residence and therefore could not count towards the five years required for permanent residence under Art. 16 of the Directive. However, it may still be possible to argue that the holder of a valid residence permit is entitled to social assistance: see R (Bidar) v LB of Ealing and Secretary of State for Education and Skills, Case C-209/03 at , and Trojani v Centre Public d'Aide Sociale de Bruxelles (CPAS), Case C-456/02 at -.
Also relevant is McCarthy v Secretary of State for Home Department, Case C-434/09. Mrs McCarthy held dual British and Irish nationality. She was born and had always lived in England where she married a Jamaican national who lacked leave to remain in the UK. The couple applied for but were refused residence permits as an EU citizen and the spouse of an EU citizen. The ECJ considered that all Union citizens who "move to" or reside in a Member State "other" than that of which they were nationals were beneficiaries of the Directive. However, the Directive could not apply to a Union citizen who enjoyed an unconditional right of residence due to the fact that he resided in the Member State of which he was a national. The residence to which the Directive referred was linked to the exercise of the freedom of movement of persons. The territorial scope of the right of residence and the right of permanent residence referred to the Member State to which a Union citizen "moves" in order to exercise their right of free movement. As Mrs McCarthy had never exercised her right of free movement and had always resided in the Member State of which she was a national, she was not covered by the concept of "beneficiary" for the purposes of Art.3(1) of the Directive. Accordingly, art.3(1) was to be interpreted as meaning that the Directive was not applicable to a Union citizen who had never exercised his right of free movement, who had always resided in a Member State of which he was a national even if they were also a national of another Member State (see paras 32-43 of judgment).