This immigration route, which is aptly named after the applicant who filed the court case, can be applied by non-EU family members of British citizens to obtain a UK visa – but under European Regulations.
Usually, family members of EEA nationals would apply using EU law. The family member would normally get an initial family permit for 6 months if they are abroad, or would get a 5 year residency card if they are already in the UK.
The case states that British citizens, who have exercised their EU treaty rights in another EU country, such as France for a certain period of time, may trigger their right to free movement, which includes family members. Although this “period of time” is not set in stone, the general consensus is that the UK citizen will need to be exercising their EU treaty rights for at least 3 months in the non-UK EU country.
This route allows for non-EEA family members of British citizens to apply for a UK visa using the European law, as opposed to applying under the UK Immigration Rules. Applicants will now need to fulfil the easier requirement under EU legislation, rather than having to meet Appendix FM of the UK immigration rules.
There are a number of benefits when applying under the European regulations, for example, there is no English language test, no minimum salary requirement, plus the government fees are also less. The difference is £885 to £55, which is a major gap. Furthermore, the UK will only give the visa for an initial 2.5 years, whereas a residence card is for 5 years straight. The high cost will apply again under the UK rules when it is due for extension.
Further court rulings of clarification have since arisen, such as O v The Netherlands (Case C-456/12), which states the following:
1. A residence period of three months is required (para 54)
2. Weekend visits and holidays do not count as residence for this purpose (para 59)
3. Any citizen of the Union can potentially benefit from this right, not just workers and the self employed (references to Article 7 of Citizens Directive 2004/38 , e.g. para 56, and to Article 21 of the TFEU, e.g. para 54)
4. During the period of residence family life must have been “created or strengthened” (para 51)
5. Abuse is impermissible (para 58)
To conclude, British nationals need to strengthen their family ties, such as living together abroad, and to have worked abroad for at least 3 months.
Our team of expert lawyers and solicitors and Westkin are on hand to help you with your case, no matter how complex. Our team have worked across a wealth of cases, from simple and straight forward application processes, to more complicated claims. We are on hand to assist you with your needs, whatever those may be. We make a promise to our clients that we will offer them with a fast, honest and reliable service and we endeavour to offer this in all that we do. If you are interested in discussing your immigration queries with a member of our team, please do not hesitate to get in touch and we will be happy to assist you. You can email us, give us a call or use the contact form at the top of the page to get in touch. We look forward to hearing from you.
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