This page is for you if you are a family member of an EEA citizen who is in the UK, and:
- You are an EEA citizen, but do not have the right to reside in the UK in your own right, or
- You are not an EEA citizen yourself
 These
rules do not help you if the other person is a UK citizen (even
though the UK is part of the EEA). |
At first glance it looks very simple
- If you are a family member of an EEA citizen, and if they are in the UK and have the right to reside in the UK, you have the right to reside as well.
1. You need to be a family member of an EEA citizen 2. The EEA citizen has to be in the UK and have the right to reside in the UK. |
Two important bits of good news
- It doesn’t matter what your nationality is: you could be an EEA citizen yourself, or you could be from Burkina Faso or the USA.
- Once you have been in the UK and had the right to reside for five continuous years, either as family member, or for other reasons, you will have a permanent right to reside in the UK. After this, it will not matter whether you are still connected to a family member or not.
The problem is this: what is a 'family member'? Not all family members count as family members for these laws.
We'll look at this in a bit. But first...
How does this affect entitlement to benefits?
The right to reside rule affects the following benefits:- All income based benefits: in other words income based Employment and Support Allowance, income based Jobseeker's Allowance, Income Support, Pension Credit, Child Tax Credits, Universal Credit, Housing Benefit, and Council Tax Support.
- Child Benefit
Since 2004, if you don’t have the right to reside in the UK you don’t have the right to income based benefits or Child Benefit.
This is really important, so I’ll repeat it…
| If
you don’t have the right to reside in the UK you don’t have
the right to income based benefits or Child Benefit. |
| Even
if you do have the right to reside in the UK, you may still have
problems getting these benefits straight away: There are rules
that say, in effect, that until the government is satisfied that
you really have set up home here permanently it does not see why
you should get benefit. This is called 'the habitual
residence test'. (Actually the right to reside rules are found 'inside' the habitual residence rules, but in practice it is easiest to treat them as two separate things.) It is very unusual for the DWP to accept that someone is habitually resident from day one: on the other hand it is also very unusual for them not to accept someone as habitually resident after three months from when you arrive. In general, the more evidence they have that you plan to stay the shorter you will need to wait. However, since January 2014, a change to the habitual residence rules means that if you are trying to claim income based Jobseeker's Allowance you will not be entitled to it unless you have been living in the UK (or the other common travel area countries: Ireland, the Channel Islands, etc) for at least three months. |
Now, back to our earlier question...
What is a 'family member'?
| Remember
that in all these cases, the EEA citizen has to be in the UK and
has to have the right to reside here to be any use. To find out whether the family member has the right to reside you need to check out my page on EEA citizens |
The main categories are as follows…
Partners
You will be classed as a family member:
- If you are the spouse or civil partner of an EEA citizen.
- If you are the partner of an EEA citizen but not their spouse or civil partner, but only if
- The Home Office agrees that your relationship is ‘durable’: in other words, it’s a relationship that is likely to last. Exactly how they work that out is impossible to say.
- You get a document from the Home Office to confirm that you a family member (I know that this seem to be going round in circles but there you are…).
-
www.ukba.homeoffice.gov.uk/eucitizens/documents-eea-nationals/
if you are an EEA citizen yourself
- www.ukba.homeoffice.gov.uk/eucitizens/documents-family/ if you are not an EEA national
| Note
that under these rules, if you are married, or in a civil
partnership, you don’t having to be living together. As long as
your partner is still in the UK and still has the right to reside
here, you will have the right to reside as their family member,
until any official divorce is finalised. This is
really important, especially in cases of
domestic abuse. |
 Therese
is from Ruanda, but her husband, Andre, is French. They
got married in the France. They moved to the UK together, where he
works full time. Because of domestic violence she has to leave him
and move into a women’s refuge. Because they are still married, and he is still in the UK, she is still classed as a family member of Andre, and because he is still working and has the right of residence in the UK, she has the right to reside as well. |
Children and Grandchildren
You will be classed as a family member if you are not yet 21, and you are the son, grandson, daughter, or granddaughter of an EEA citizen unless the EEA citizen is in the UK as a student.
If the EEA citizen is a student:
- You have to be a dependent child of the EEA citizen or of their spouse or civil partner, or…
- The EEA citizen must have a right to reside in the UK not just as a student, but for some other reason (for example, as a worker).
Parents and Grandparents
You will be classed as a family member
- If you are the father, mother, or grandfather or grandmother of an EEA citizen (or of their spouse or civil partner) (unless the EEA citizen is in the UK as a student), and you are dependent on them.
Looking after a child
This is an odd one.
If you are the main person looking after a child who is in school, you have the right to reside, but only if, in the past, the child was in the UK while one of their parents was working in the UK as an EEA citizen.
You might be both people. In other words, you might have been working in the UK in the past, while your child was also in the UK, but now you're not working any more. In this case, although you don't have the right to reside as a worker you do have the right to reside as the main carer of your child.
Or the worker might be someone else. Perhaps you came as a couple, and your partner worked, but now they have left you and your child and gone back to (say) France. You have the right to reside as the main carer of your child.
Note:
- The child must be in school, not pre-school;
- It doesn't matter if you're one of the children's parents or not;
- It doesn't matter if the EEA worker is still in the UK or not, or even alive;
- It doesn't matter what your nationality is.
Other Relatives
This is tricky. You may be classed as a family member if:
- You are related to an EEA citizen, and were living with them in another EEA country or were dependent on them there, and now you’re both in the UK, and you are living with them here, or still dependent on them here.
- You are related to an EEA citizen or their spouse or civil partner and you have serious health problems, and you need the person care of the EEA citizen or their spouse or civil partner.
-
www.ukba.homeoffice.gov.uk/eucitizens/documents-eea-nationals/
if you are an EEA citizen yourself
- www.ukba.homeoffice.gov.uk/eucitizens/documents-family/ if you are not an EEA national
If
any of the following things happens, you should seek advice
urgently:
You may still have a right of residence, but the rules in this situation are complicated and your particular history will be important. |
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