EU Treaty Rights – What Does “Exercising” Them Actually Mean?
For European citizens living in the UK
With the uncertainties of Brexit looming, many European citizens and their families are looking to secure their immigration status in the UK. When preparing for the relevant EEA Permanent Residence, Registration Certificate or Residence Card applications, you will often come across one of the mandatory requirements – “exercising Treaty Rights in the UK”.
EU Treaty Rights are rights afforded to the citizens of the European Union and family members under Directive 2004/38/EC. Treaty rights are also granted to members of the European Economic Area (EEA) as well as Switzerland. EU treaty rights allow for free movement within the Member States of the EU. This right to free movement is typically derived from an EU citizen’s involvement in the economic activity of the host member state. Examples of such involvement include working, studying or being self-sufficient.
Whilst free movement allows for visa-free travel for up to 3 months, to stay past this limit, you must be exercising a Treaty Right. However, if you have been continuously exercising your treaty rights for 5 years, you are eligible to apply for a permanent right of residence which would allow you to permanently reside in the UK without exercising treaty rights. Furthermore, whilst exercising your treaty rights as an EU citizen within the UK you also have the right to have certain family members, such as a spouse, child or dependent parent, reside with you even if they are not exercising their treaty rights.
For British citizens returning from Europe to the UK
British citizens, however, are not treated as EEA nationals in the UK hence there is no automatic right to reside for non-EEA national family members. Nevertheless, an exception occurs when the British citizen exercises treaty rights in another EEA state and return to the UK with his non-European family members. This may lead to a Surinder Singh application. By exercising treaty rights in another EU state and then exercising the right to return to the UK, consequently, the right for family members to reside with you is also invoked.
Since 2012, the UK has denied dual citizens (with both UK and European nationalities) any rights under EU law. Should an EU citizen be granted UK citizenship, any family member residing with them from outside the EU have the choice of applying under the UK Immigration Rules, or relying upon any automatic EEA residence rights. The recent case of Lounes C-165/16 has confirmed that a dual British/European citizen can rely on European law to sponsor her partner’s visa.
Lounes v Secretary of State for the Home Department (C-165/16, EU:C:2017:862)
The Court of Justice of the European Union has found that EU citizens who move to the UK and later naturalise as British retain their free movement rights under EU law even though they have become British.
How Can We Help?
QC Immigration has vast experience dealing with complicated applications involving European citizens, British citizens returning from Europe and their non-European family members. Book a consultation with us to plan your future in the UK with certainty.