A frequent immigration application to the Home Office is an application for a family member residence card. A wide range of people are eligible for a residence card, and the Home Office must award them provided the relevant conditions are met. However, the application is not always so straightforward.
Residence cards are available to family members of a “sponsor”. The sponsor must be an EEA national (including a British citizen), but the applicant can be from outside the EEA. The sponsor must also be either a qualified person or have a right of permanent residence in the UK. Residence cards can last for up to 5 years. The rules surrounding residence cards are set out in the Immigration (EEA) Regulations 2016.
What is the test?
When you make an application, the Home Office will consider a 4-stage test:
- Is the sponsor an EEA national?
- Is the applicant a family member?
- What is the status of the sponsor?
- Is the applicant dependent on the sponsor?
The first and second questions can usually be dealt with by providing identity documents and marriage or birth certificates. A “family member” (as opposed to an “extended family member”) is:
- A spouse or civil partner.
- A child or grandchild of the sponsor or their spouse/civil partner. The child or grandchild must be under 21 or otherwise dependent on the sponsor or their spouse/civil partner.
- A parent or grandparent of the sponsor or their spouse/civil partner.
The third question is whether the EEA national is either a qualified person or has a right of permanent residence in the UK. A “qualified person” is a jobseeker, worker, self-employed person, self-sufficient person, or a student. Again, this can usually be proved by providing the relevant documents (e.g. payslips, health insurance).
The fourth question is where an otherwise simple application can become complicated. Many people may assume that a parent or child of an EEA national should be entitled to a “family member” residence card (at least, that is what the name suggests). But if you are a child over 21, or a parent or grandparent, you will need to show that you are dependent on your sponsor.
What does “dependent” mean?
According to the European Court of Justice, “dependent” means that you receive “material support” for your “essential needs” such as housing, food, clothing (Chen v SSHD). And it is not enough to simply receive support, but you must need it (Lim v ECO, Manila). This means that you must be unable to provide for your own basic needs; you cannot simply choose not to work or support yourself.
Such dependence can be much more difficult to prove. It is important to provide evidence of income and expenses, including bank statements and savings (or lack of them). Clear regular payments from your sponsor will help the court to see a definite dependence. Otherwise, despite being obviously a family member, you will not be eligible for a family member residence card.
Mark accepts instructions in a wide range of civil proceedings, including immigration, property, personal injury and general contract matters. Recently, he represented the claimant in a successful loan dispute, and provided written advice to a local authority regarding the use of warrants under the Housing Act 2004.
