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As I understand it, under Directive 2004/38/EC, an EU national who has only ever lived in their own country is governed by national rules when it comes to inviting non-eu family members to join them. However, as soon as you've moved elsewhere in the EU to work or study, and thus "activated" your Treaty Rights, the rules covering you on non-EU family members are the EU rules.

As I've understood from things like this and this, the Surinder Singh case ruled that once you've activated your Treaty Rights, if you move back to your country of citizenship, you remain covered by the EU rules, and you're no longer subject to the stricter national ones.

Something like a short holiday in France isn't enough to activate your Treaty Rights, so presumably just rocking up at the UK border from abroad isn't enough, and you'll have to show something to demonstrate to UK Immigration Officers that you have been exercising your Treaty Rights.

So, what would a UK citizen who's been living + working elsewhere in the EU need to bring with them, to prove to UK Immigration that their non-EU family members can be admitted under the EU rules?

  • 1
    As far as I can tell, it's still open to a lot of interpretation, treaty rights can even be invoked without ever leaving the country, see the Carpenter case. Consequently, I assume that in most cases, you would just submit a regular application, perhaps highlighting the fact that you think EU law is relevant if there is some opportunity for that and then go to court if the application is refused. – Gala Mar 19 '14 at 17:02
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While I do not know how you can prove the following, according to the UK interpretation of the Directive these are the things you have to prove. The important parts are Annex A and Chapter 2

If you check Chapter 2 it says:

Regulation 2(1) defines an EEA national as “a national of an EEA State who is not also a United Kingdom national”. This means that a person who is a UK national cannot be considered an EEA national under the Regulations, including where they also hold nationality of another EEA member state. This does not impact on the rights of family members of UK nationals under Regulation 9.

This means that as a UK national you are not considered an EEA national, even if you have a second nationality in an other EEA state, but you can still excercise your Treaty Rights if you and your family member fulfills the conditions in Regulation 9 in Annex A:

(a) the United Kingdom national is residing in an EEA State as a worker or self-employed person or was so residing before returning to the United Kingdom; and

(b) if the family member of the United Kingdom national is his spouse or civil partner, the parties are living together in the EEA State or had entered into the marriage or civil partnership and were living together in that State before the United Kingdom national returned to the United Kingdom.

According to this site however what you should do is the following:

  1. After leaving the UK acquire for a registration certificate for your family member in the new country, and then apply for a residence card. This is not required, but will make it easier to prove your spouse's status, and also it makes it easier for him/her to start working abroad.
  2. After working for at least 6 months abroad, apply for the EA family permit
  3. Once that is succesful you can move back to the UK with your family member, who should apply for residence using this form
  • It's the "How to prove it" part is what I'm most interested in! – Gagravarr Mar 19 '14 at 17:28
  • @Gagravarr How to prove you were working? Copy of your contract (if any), payslips, any other work-related documentation you may have. – Michael Hampton Jun 29 '15 at 22:47
  • It's worth noting though that the the UK rules are under investigation by the EU for not complying with the EU requirements and ECJ rulings, and that the Home Office is under investigation for being asshats in the way they implement the incorrect rules. For example, the centre-of-life test is widely abused to deny people, so expect to at least appeal and probably go to court over it if you only stay for six months. – user Sep 10 '17 at 21:12
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It depends. The Home Office applies all sorts of illegal tests that break EU rules. If you are willing to take them to court you can eventually force them to obey the rules, but it's expensive.

The EU only requires that you prove you have a genuine relationship and that you activated your treaty rights. No centre of life test or any of that nonsense. The ECJ will eventually uphold your rights if you take it that far.

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