Rights Of European Union Citizens To Have Family Members Join Them After Brexit

Summary

1. Under the terms of the draft UK-EU Withdrawal Agreement, (published on 14 November 2018), the rights of EU nationals resident in the UK to bring in family members will exceed those of their British neighbours after Brexit day in March 2019 in the following respects:

• Those who arrive prior to end of the transition period will be able to bring in spouses and registered partners, parents, grandparents, children, grandchildren or persons with whom they are in an existing durable relationship who could then stay permanently without being subject to the UK immigration rules (provided the relationship exists at the time of the end of the transition period (paras 2 & 3).
• Elderly relatives who joined EU nationals in the UK would also be exempt from the requirements that apply to British citizens (para 4).
• Article 132 of the Withdrawal Agreement (p. 207) indicates that the length of the transition period has not yet been agreed and, theoretically could be extended to the end of the century. (“Notwithstanding Article 126, the Joint Committee may, before 1 July 2020, adopt a single decision extending the transition period up to [31 December 20XX”).
• This means that the stipulation that UK cases concerning citizens’ rights be referred to the European Court of Justice for eight years after the end of the transition period would have no clear end in sight. British courts would also need to pay ‘due regard’ indefinitely to relevant European court rulings on citizens’ rights enshrined in the treaty.
• In certain circumstances EU citizens would be able to claim benefits for children living abroad (para 5).

Detail

2. The UK immigration rules currently specify that those who wish to enter the UK as a partner (ie as the spouse, a partner who has been in a relationship for two years, fiancé, fiancée or proposed civil partner) of a British citizen, or of a non-EEA national with indefinite leave to remain in the UK, must apply for family visa. In order to be granted such a visa and bring in their spouse or partner from outside the EU, the sponsoring UK citizen or settled resident must meet a minimum income requirement. This is set at £18,600 per year before tax. However, the level rises to £22,400 for a non-European partner and child, with an additional levy of £2,400 for each additional child. The non-UK partner cannot count their income if they are working abroad. Partners must also speak a basic level of English (Level A1, Common European Reference Framework for Languages).
3. The draft EU withdrawal agreement would mean that EU citizens residing in the UK by the end of the transition period would be able to bring in family members, who could then stay permanently, without being subject to the UK immigration rules (ie the various levels of income threshold, the English language requirement for partners and the administrative burden of having to apply for visas, renewing these again after two-and-a-half years and then applying for settlement after five years). As the government’s 56-page document explaining the draft deal makes clear, this will apply at any point in the future, provided that the relationship already exists by the end of the transition period and still exists when the person wishes to come to the UK. Eligible family members would include current spouses and registered partners, parents, grandparents, children, grandchildren or persons with whom they are in an existing durable relationship. Any child born to an individual at any point in the future (including after the end of the transition period) would also be allowed to come to the UK under the Agreement if the individual has custody of the child. On the face of it, there would be no right to be joined by grandchildren born after the end of the transition period or by extended family (siblings, aunts, uncles, nieces and nephews).
4. For those bringing in children, they would not need to prove that they are taking an active role in the child’s upbringing and plan to continue to do so as is the requirement under the UK immigration rules. For those bringing in adult elderly relatives, they would not need to meet the requirement under the UK immigration rules to prove that the relative needs long-term care to do everyday personal and household tasks because of their illness, disability or age. Nor would they need to show that the care they require would not be available or affordable in the country in which they reside, or that the person they are joining in the UK would be able to support, accommodate and care for them without claiming public funds for at least five years. However, the right of EU nationals who arrive in the UK prior to the end of the transition period to bring in those they marry or form partnerships at a future date (ie after the end of the transition period) will match those of the UK nationals.
5. In certain circumstances EU citizens who arrive by the end of the transition period would also be able to claim benefits for children living abroad. The question of whether the EU national could claim child benefit even if they themselves move abroad would depend upon whether they are considered as habitually resident in the UK. The EU and UK’s agreement of December 2017 confirmed that EU citizens legally resident in the UK by the end of the transition period would ‘be able to continue to export benefits under the current EU rules if they are working in the UK or have worked and paid into the system. The agreement ensures that UK nationals living in Europe can also do this’ (see Factsheet on EU citizens rights’ agreement).