The UK is no longer an EU member state. The are temporary transitional measures in place which, for the most part, continue to provide for free movement until Dec 21, 2020. Future arrangements will depend on what is negotiated between the British government and the EU.
The material below is provided for historical reference.
European Comission guide to free movement
Main Laws
- Immigration (EEA) Regulations 2006 (as PDF or as HTML) (UK implementation of Directive 2004/38/EC)
- Minor amendments to the regulations made in 2009
- Immigration (European Economic Area) (Amendment) Regulations 2011 amends self sufficiency requirements, and finally removes the requirement for prior EEA residence for family members which was soundly rejected in the ECJ Metock decision.
- The Immigration (European Economic Area) (Amendment) Regulations 2012 amend the Regulations again to include reference to various ECJ case law, but does not yet deal with Zambrano. More analysis here.
- A separate transposition exists for Gibraltar: the Immigration Control (Amendment) Act 2008.
How well has the Directive been implemented?
- Compliance Study (Directive 2004/38/EC): United Kingdom (PDF file from 2008)
- Table of correspondence for Directive 2004/38/EC: UK (PDF file from 2008)
UKBA Government information on EU/EEA free movement
- UKBA: Guidance for EEA & Swiss nationals and their families (INF 18) This is presented as a series of questions and answers about EEA Family Permit (a form a visa), Residence Cards for family members of EEA citizens, and working and living in the UK
- UKBA: Information for European citizens and members of their family
UKBA Government internal procedures manuals and rules
- UK Visas – European Nationals & Schemes (EUN) Rules for use in an British embassy visa section for handing requests by family of EEA citizens to reside in the UK. These are the procedures for OUTSIDE the UK.
- UK Border Agency – European Casework Instructions Procedures for processing Residence Cards and entry requests for EU citizens and their families. These are the procedures for INSIDE the UK
- UKBA’s Immigration Directorates’ Instructions – (Chapter 7) Section 3 – EEA nationals & their family members – covers everything from Landing Cards for family members of EU citizens (“unduly onerous”), to right of entry, to “public policy” exclusions, to right of entry for EU citizens and their non-Eu family.
- UKBA’s Border Force Operations Manual: EEA Nationals And Dependents and Refusal Of EEA Nationals (source) These procedures manuals deal with the arrival of EEA nationals and their family members. They cover the case of family members who arrive at the border but do not have a UK issued EEA visa. An accessible extract is part of the article Travel Without a Visa
- Special information for citizens of Romania and Bulgaria
- Note: These manuals, issued by the British Government, serve as working instructions for their employees. They are not the law; the interpretations they include tend to be worded in a restrictive way, and are often incomplete.
Useful information for EU citizens and their families
- If you have a problem with how UKBA handled your application, they have a UKBA complaints process! Very few people complain and so UKBA often does not hear about the things that are wrong and has no chance or motivation to fix them. Please complain if there is a problem! (For more background on how they handle complaints, see UKBA’s Complaints Management Guidance)
- You can request priority treatment for your Residence Card application when you need it urgently in order to accept a job offer, or to travel for business or for compassionate reasons, or because UKBA significantly inconvenienced you by mishandling your application. (They also describe giving priority to straight forward applications which have been outstanding for more than 3 months, when supporting documents such as passports are requested back) You should write a letter explicitly requesting priority treatment, and including evidence of the job offer or travel. See UKBA’s ECIS Chapter 10 (annotated version) or original
- You can request compensation from UKBA if applications are not processed in a timely manner (for visas “as soon as possible and on the basis of an accelerated process” and for Residence Cards “a maximum of 6 months from the date of application“) as required by European law, or if they loose documents or passports. You can read their complete compensation policy (“Section 11 Compensation guidance” starts on page 42 of the PDF), but the key thing is to keep records and receipts for all your related expenses. Note that if you have been prevented from working because of UKBA’s actions, it may also be reasonable to claim your lost salary.
- You can get a copy of your complete UKBA file by doing a Subject Access Request (SAR). This can be done by any EEA citizen and can also be done by non-EEA family members.
- A UK issued Residence Card for an family member of an EU citizen looks like
It is either added to a passport, or attached to an A4-sized UK “Immigration Status Document” - Applicants for PR require evidence that the EEA spouse was working (or otherwise exercising treaty rights), which can be a problem where the relationship has ended in a messy divorce. Show your immigration solicitor the posts Shared burden in European cases and followup.
Useful NGOs (non governmental organizations)
- Aire Centre – support for lawyers and advisors. Has some very decent information about European Free Movement law.
- The Immigration Advisory Service has a material on UK law
- Law Centre of Northern Ireland has a variety of well written material in a number of world languages. See Your Rights in Northern Ireland: A Guide for Migrant Workers. Note that all this material applies also to the rest of the UK
- The Liberty guide for Your rights: European Union Nationals. They have great information in this section!
- Housing rights and benefits in the UK for EEA citizens on the Housing Rights website
Good forums for asking questions about UK and EU free movement law
freedom of movement in the EU 
Comments
1. I have read the above comment Posted on August 9, 2007 at 9:34 pm about the point that the UK’s Asylum & Imm’n Tribunal has recently ruled (case called ‘AP & FP’)that Art 3(2) only confers a right to have an application considered under the Member States own national law!. Refer the comment in https://eumovement.wordpress.com/directive-200438ec/
2. In the recent judgement, they applied this principle in the below case as well, which is fundamental breach of community law. http://www.ait.gov.uk/Public/Upload/j2045/00074_ukait_2007_ak_sri_lanka.doc
3. In the above determination, in the para 10, tribunal mentioned “There are two important requirements in reg 12(1) which we should note. First, the “family member” must be “accompanying” or “joining” the EEA national who is coming to or already in the UK. It does not cover the reverse situation where the “family member” is present in the UK and is joined by the EU national. Secondly, the “family member” must, before coming to the UK, either be already lawfully resident in another EEA state or satisfy the requirements of the Immigration Rules for entry. The latter situation would cover both family members who are illegally in another EEA state and those who are outside the EEA and wish to enter the UK directly from there.”
4. The judges from the starting point itself concluded “a first category whose family members are already residing within the territory of the Union and who would benefit from free movement rules; and a second category whose family members do not yet reside in a Member State and whose family member would be subject to national immigration rules.”
5. The above determination would constitute discrimination between different categories of EU nationals which would seem difficult to justify and such a difference in treatment itself is a discrimination and incompatible with Directive. Further ECJ has rejected the above discrimination in Jia Case, in which the Advocate General suggested.
6. In case Jia C-1/05, Having regard to the judgment in Case C-109/01 Akrich [2003] ECR I-9607, Community law does not require Member States to make the grant of a residence permit to nationals of a non-Member State, who are members of the family of a Community national who has exercised his or her right of free movement, subject to the condition that those family members have previously been residing lawfully in another Member State.
7. The Court held that no such requirement followed from Community law in general or from the Akrich judgement, more specifically.
8. Although the treaty leaves member states free to choose the ways and means of ensuring that the directive is implemented , that freedom does not affect the obligation , imposed on all the member states to which the directive is addressed , to adopt , within the framework of their national legal systems , all the measures necessary to ensure that the directive is fully effective , in accordance with the objective which it pursues.
9. The phrase “in the country from which they have come” in article 3(2) refers to the country in which dependents of an EU citizen are situated at the time they seek to enter and reside with the EU citizen in the host country concerned.
10. The phrase is not limited to EU countries, as is clear from the European Court of Justice’s ruling in the Jia case C-
1/05. The Directive contains no condition of prior residence or physical presence in the EU at the time a dependent
applies for entry and residence.
11. In particular the words “in the country from
which they have come” is not limited to EU countries (otherwise the Directive would read “in the member state
from which they have come”). As a result,the UK has incorrectly implemented Directive 2004/38 in
breach of the UK’s obligations under the EC Treaty.
12. Hope there are cases still pending before the court for this issue to be resolved asap.
1. It is interesting to note the following observations in Chen Case with respect to unlawful and incorrect implementation of National Regulation in Ireland and UK : –
The ECJ rejected outright the contention that a person in Catherine’s situation could not claim the benefit of the provisions of EC law on free movement & residence simply because she had not moved from one MS to another MS.
2. The ECJ also rejected the submissions by the UK government that Mrs Chen was not entitled to rely on the provisions of EC law because, it was argued, her move to Northern Ireland with the aim of having her child acquire the nationality of another MS constituted an attempt to improperly exploit the provisions of EC law and to circumvent national legislation.
3. The ECJ rejected submissions by Irish and UK governments that the requirement to possess sufficient resources must be possessed personally. The simple requirement is that the person “have” the resources, EC law provisions do not make any requirement as to the origin of the resources. Any requirement as to the origin of the resources would not be necessary for the attainment of the objective to protect public finances and would be a disproportionate interference with the exercise of the fundamental rights of free movement.
4. The implications of the Chen judgment?
The full implications of the judgment remain to be explored but several matters are apparent: When a matter is referred to the ECJ by way of preliminary ruling, the judgment is addressed primarily to the court or tribunal that requested the ruling. However, the ECJ has made clear that its judgments can and should be relied on by other national courts and therefore does have precedent effect.
5. Therefore there is no sense in their implementation that the Non-EEA National family members should have to satisfy the requirements that they must be lawfully resident in an another member state prior to their arrival to UK and/or Ireland.
1. In Case C-413/99, para 91 ‘……… those limitations and conditions must be applied in compliance with the limits imposed by Community law and in accordance with the general principles of that law, in particular the principle of proportionality. That means that national measures adopted on that subject must be necessary and appropriate to attain the objective pursued (see, to that effect, Joined Cases C-259/91, C-331/91 and C-332/91 Alluè and Others [1993] ECR I-4309, paragraph 15).
2. The story of developing community rights for individuals has been retold many times. It started carefully in determining relations between community institutions and their staff, and has presently culminated in the Charter of fundamental rights. (Agustin José Menéndéz, Chartering Europe:The Charter of Fundamental Rightsof the European Union, ARENA WP 01/13). There is no call to retell this story here. My intent is only to exhibit two important points in relation to administrative policy. The first point is that granting rights to individuals is an important part of baselining standards for public administration in the union and in the member states, and thus forms part of administrative policy and the requirements towards public administration. Taken together, individual rights form a body of administrative law relating to administrative procedure and standards for public administration. (The implications of the development of principles of administrative law for the shaping of an European administrative policy is examined in European Principles for Public Administration, SIGMA Papers No 27, OECD 1998) The second is that the development of individual rights has not taken place as the result of a comprehensive policy of rights or of public administration. Rather we can se the development as a result of separate developments within the institutions and policies of the EU.
3. The lack of an administrative code or a body of general rules applicable to administrative practices of the community has led the Court of Justice to develop a protection of individual rights based on general principles of administrative law.(The main work on describing the emerging general procedural and substantial principles of administrative law emerging from community law is still Jürgen Schwarze, Europäisches Verwaltungsrecht, Nomos, Baden-Baden, 1988. English version: European Administrative Law, London, 1992.) Initially, such rights were developed in the context of community administration such as staff cases involving the rights of community employees (See Joined cases 7/56, 3/57 to 7/57 Algera et.al. v. the European Coal and Steel Community ECR English Special Edition 1957 p. 39.) and competition law involving the right of private undertakings.( Case 17/74 Transocean Marine Paint Association v Commission, [1974] ECR p. 1063.) Soon, community law also against national administrations when applying and enforcing community legal rules required individual rights in administrative proceedings. (Case 44/79 Liselotte Hauer v Land Rheinland-Pfalz [1979] ECR p. 3727.)
4. The Court of Justice has another strand of cases developing individual rights in administrative proceedings in conjunction with the freedoms of the EC-treaty. These freedoms i.e. free movement of goods, services, people, and capital, mean that national public administrations of the Member States, as key elements for ensuring and implementing them, have to work in a way that renders effective the implementation of those Treaties in all their respects. Protection of the right to free movement entails for instance the obligation to give reasons for individual restrictions of such a right and the right to legal review,(Case 222/86 Unectef v Georges Heylens and others [1987] ECR p. 4097) the right to a timely decision ( Case 42/82 R Commission v France [1982] ECR p. 841.) and the principle of proportionality. In this context could also be mentioned the principle that the State is liable for loss and damage caused to individuals as a result of breaches of Community law that has been developed by the Court of Justice. (Judgments in Joined cases C-6/90 and C-9/90 Francovich and Others [1991] ECR p. I-5357; Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur and Factortame [1996] ECR p. I-1029, Case C-392/93 The Queen v HM Treasury ex parte British Telecommunications [1996] ECR p. I-1631; Case C-5/94 Hedley Lomas [1996] ECR p. I-2553; Joined Cases C-178/94, C-179/94, C-188/94, C-189/94 and C-190/94 Dillenkofer and Others [1996] ECR p.I-4845.) To a large extent, the principle of state liability serves to protect individuals against administrative encroachments of community rights. The principle may therefore be said to form part of the substantial body of community administrative law and has its counterpart in Article 288 EC that gives a right to compensation for damages caused by Community institutions and servants.
5. The little that there is of a comprehensive European Union policy of administration is tied to the question of implementation and enforcement of community rules. To this effect, the Council has issued recommendations to the Member States and the Commission, for instance the Council Resolution of 16 June 1994 on the development of administrative cooperation in the implementation and enforcement of Community legislation in the internal market,(O. J. C 179 , 01/07/1994 P. 1 – 3.) Council Resolution of 29 June 1995 on the effective uniform application of Community law and on the penalties applicable for breaches of Community law in the internal market ( O.J. C 188 , 22/07/1995 p. 1 – 3.)
Dear All
The above some of the points is from Professor Hans Petter Graver, ARENA on the topic National Implementation of EU Law and the Shaping of European Administrative Policy.
http://www.arena.uio.no/events/Conference2002/documents/Graver.doc
Dear All
http://www.gherson.com/articles/jia-in-the-european-court-of-justice-analysis
The above link is the Analysis of Jia Case in the European Court of Justice commented by Gherson Solictors Firm.
Dear All
The below link is the judgement given by UK tribunal on 21.09.2005. based on EEA Regulation 2000.
There is no condition of prior residence in an EU member state before coming to UK in the below judgement. Please see the below mentioned link.
http://www.ait.gov.uk/Public/Upload/j1786/00132_ukait_2005_ls_sri_lanka.doc
But while giving judgement based on EEA Regulation 2006, they adopted condition of prior residence in an EU member state before coming to UK. Please refer the below attachment.
http://www.ait.gov.uk/Public/Upload/j2045/00074_ukait_2007_ak_sri_lanka.doc
As a result, UK breaches the Directive 2004/38/EC and Jia Case C-1/05 judgement in which both of them have precedent effect.
(14th september 2007) Tribunal posted another judgement with respect to article 3.2 of citizen Directive 2004/38/EC
http://www.ait.gov.uk/Public/Upload/j2054/00078_ukait_2007_st_others_India.doc
Tribunal completely ignored the EU Directive. According to the established case law of the European Court of Justice, where a directly applicable provision of a Directive contravenes national law, national courts are under an obligation to set aside the offending provision of national law and uphold the provision of the Directive.
Does any one knows that these are issues are pending before the Courts. Please mention in this forum.
Another interesting blow to the UK’s anal approach:
http://www.gherson.com/articles/new-ait-case-on-requirement-for-entry-clearance-for-family-members-of-eea-nationals
http://www.gibraltarlaws.gov.gi/articles/2000-08.pdf has law for EU citizens wanting to move to Gibralter. It seems to come from before Directive 2004/38/EC
can i go and live in uk with my spain permanent residence.. what do i need to do to live in uk
I am so glad to find this blog, which is very helpful. About the family members of EU citizens’ free movement within EU zones, it appears UK citizens’ family members who are not citizens of a EU member state can not entitle the same right. How odd. I am a Chinese national and my husband is British. However I have to apply a visa if I want to travel to Europe while if I was married to a EEU citizen then I would not need a visa as long as I apply a resident card under EU direct 2004/38/CE. Just now I was told by UK Border Agency I can not apply this resident card because my husband is British, not a EU citizen. Not sure how to deal with this kind of unintended discrimination. Is there anyway I can go to Europe without a visa which always a time-consuming and costly affair.
Any more important, shouldn’t family members of a UK citizen have the same right of free movement within the EU as their EU counterparts?
Can anyone give some advice? Thanks a lot!
I am married to a Peruvian and have experienced a number of problems with the UKBA who appear to deliberately misinterpret EU legislation to fit their agendas – as a consequence it has cost me thousands of pounds. It has been an eye opening experience and made me aware of some amazing inconsistencies in how the UK government treats it’s own and EU citizens within the UK.
I would like to comment on the point that the UK fails to issue an equivalent to a ‘Residence Card’ for spouses when it provides them with Further Leave to Remain or Indefinite Leave to Remain – these Visas are not automatically treated as equivalent to ‘Residence Cards’ by other countried despite the fact they provide residence (and the right to residence) in the UK for their duration.
In this omission the UK goverment hinders the free movement of the UK citizen’s Spouse within the EU, which would appear to breach the European Convention on Human Rights under Article 8, Right to Private and Family Life for both the the UK citizen and spouse. The free movement of people within the EU as provided under EU Treaties should apply equally to Spouses of EU/EEA citizens. This is discrimination against the Spouse AND the UK citizen which would appear to also breach Article 14 – the prohibition of Discrimination, as it discrimiates against the UK citizen, in preventing them from enjoying other rights such as those in Article 8.
As pointed out,if my wife had married a citizen of any other EU state she would be entitled to live with her husband (who would be ‘exercising Treaty Rights’) while the same provisions and protections are not extended to myself as a British Citizen. She would also be free to travel with her Spouse to and from Europe without hinderance. As my wife has valid Leave to Remain in the UK she has every right to leave and re-enter the UK, but cannot travel without additional documents such as a Schengen Visa, which should automatically be granted, but not without expense in obtaining one, travelling and time. This is not ‘free movement’ in the spirit of the law, and is a direct product of the UK’s discrimination against it’s own citizens.
I would love to challenge this legally and would be glad of any information on how to go about it. I am already taking the Home Office through the Parliamentary and Health Ombudsman for errors and failures that hurt us immensely, and this continuing difficulty in enjoying Rights we are entitled to under the ECHR is compelling us to take further action against the Home Office for its wilful disregard for EU law.
I am happy to spend some time investigating this issue with the aim of making a complaint and if necessary a legal challenge -it is my Right after all – ECHR Article 13: Effictive Remedy – so why not try at least?!
Click to access uk_compliance_study_en.pdf
Conformity Study for 2004/38/EC
can a romanian subject enter the u.k. with a romanian photo id card for one weeks holiday?
As long as it is an ID card issued by the Romanian government to its citizens, it is perfectly fine for all travel or long-term residence in another EU member state. You only need a passport for travel outside the EU.
Hello, I m indian citizen married to EU citizen. we have been in uk from last one month. i have got a job offered here in uk but for the moment i do not have residence card as a family member of European citizen. i just want to know if i can start work before i get my residence card or i have to wait for residence card to start any job in uk. please give me this information. Thankx
hi, im merlene, filipina and more than 2 yeras of marriages with an irish who’s an EU citizen and lives in Northern Ireland. my husband has an EU Residence Card and obtained his passport in Dublin, Ireland. I’m applying for an EEA Family Permit Visa and has been approved. I’m applying for the second time and i was refused, for the reason that, the UK Entry Clearance Officer questioned the nationality of my husband, how come it happened? so funny, i was approved in the first application and never questioned the nationality of my husband, and now it was questioned, why? why?
http://www.immigrationboards.com/viewtopic.php?t=139004&start=0 is an interesting description of applying for an EEA Family Permit from the Netherlands
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