New Immigration (European Economic Area) Regulations 2016

If you have been keeping up to date with my previous posts about the government introducing a significant amount of changes to Immigration procedures and rules under national law, you will probably not be surprised to learn that recently the government has chosen to implement changes that affect EEA nationals and families under the New Immigration (European Economic Area) Regulations 2016, which was laid in parliament on the 3rd of November 2016.

Start Date & Persons Affected.
These new rules are only for European applications. The changes will mainly come into force on the 1st of February 2017. However, Please note that some changes to kick-in last month – see below.
Summary of Case
So what are these new changes to EU applications, the significant changes include:

  • Surinder Singh Route

These changes come further to the previous changes of “Centre of Life” under the Surrinder Singh Route, which were deemed to be a Breach of EU law (O v The Netherlands (Case C-456/12)), but it seems that since the Brexit vote the government are betting on the EU commission having more pressing things to worry about than the UK government breaching the Free Movement Treaty.

Under the old laws it had to be shown that your relocation to the EU country was ‘genuine’. However, now with the new criteria you have to meet two key requirements.

  1. That your relocation was ‘Genuine’  – there is a list of what may be take into consideration e.g. Length of Stay, Principal residence and Degree of Integration to the new state
  2. That your relocation to the EU country is not a means for circumventing the national laws that your spouse/family member (non-EU national) would ordinarily be subject to.

The second requirement above in essence rules out most people who have first made an application to come to the UK under a UK visa, such as spouse visa, and have then used this route immediately; staying a few months abroad in another EU state and then quickly seeking to return to the UK under the SS Route.

As a UK immigration lawyer, I would feel anxious for those who have previously been refused a visa and were planning to stay for only a few months in, for example, Ireland. We are yet to see what this means in practise but it may mean that couples using this route with bad immigration history or who obviously have no means of meeting the income threshold for a spouse visa should look into this as the first option and not as an reaction to a UK visa refusal; it may also mean that such couples may be required to spend a longer period of time in their chose EU state to rebut any accusation of abuse of the EU law to circumvent the national law.

Take note however, that the Surinder Singh changes have already come into effect since the 25th November 2016 and all applications from now on will have to go through the new rules.

The new rules make it more likely that a lot of SS route cases may end up in court on argument of whether the relocation has been genuine and not a means of circumventing UK law, but given that at the moment it takes more than a year to get a hearing date and further changes to appeals (listed below), this route is practically shut for some unfortunate couples.

  • No right of appeal for extended family members

Whereas a person such as a Spouse, child or parent are automatically considered to be a family member with automatic right of residence (provided that the EEA national is a qualified person) those not within these narrow definitions are not family members and have no automatic right of residence.  Such extended family members include depedant relatives e.g. uncles, nephews… but also includes unmarried partners who are in a relationship a kin to marriage.

Previously the Home Office drew no distinction between an EEA Family Member and an Extended Family member in terms of appeal rights, however, in September 2016 a judgement at the Upper Tribunal Sala (EFMs: Right of Appeal : Albania) [2016] UKUT 411 (IAC) ruled there was no right of appeal against a decision by the Home Office to refuse a residence card to a person claiming to be an extended family member.

This new rule basically incorporates that court judgment in to law so that extended family members such as unmarried partners have no right of appeal. Worryingly it does not matter if you have demonstrated that you are in a ‘durable’ relationship with your partner or not, if your application is refused you have two options: Reapply with further evidence if appropriate, or shell out a lot of money pursuing a Judicial Review against the government.

  • Out of country appeals

A few months ago the government introduced out of country appeals for all non-EU nationals (see article) and perhaps many people breathed a sign of relief to note that this did not affect EU nationals and families. However, the government seems to have thought that it would not be “fair” for EU nationals and their family to “miss out” on these new crazy changes so … low and behold, these rules now potentially apply to some  EU national  applications, in line with the judgment of R (Bilal Ahmed) v SSHD IJR [2015] UKUT 00436 (IAC), which held that a non EEA national, considered by SSHD to have entered a sham marriage with an EEA national, does not have an appeal right.

To be clear, the general right of appeal remains for all other applications where the Home Office has granted such a right AND this appeal can only be made at a First-Tier Tribunal. However, the Home Office may refuse an in country right of appeal if they reach the conclusion (rightly or wrongly) that your marriage if one of convenience.

  • Procedural changes to how EEA applications should be made

As some of you may note the format of application, i.e. the application form, was not mandatory but recommended. However, new powers to require EEA applications to be made in a prescribed manner means that application forms listed by the home office must now be used.

“Brexit Means Brexit”

As many of you may be aware by the repeated use of this phrase by our new Prime Minister, Teresa May, “Brexit means Brexit”. This phrase seem to embody the  governments attitude, as the government appears hell bent on bulldozing through any changes to meet its objectives, regardless of their lawfulness, or lack of, as far as the EU law is concerned. It is clear from the new rules that they are happy to go against the free movement treaty, as well as recent European case law.

However, the government seems to be less concerned with free movement rights, perhaps with the logic that, since we are leaving the EU, there is no reason to “play nice” anymore, this is of course despite the fact that the EU divorce has not even commenced and the law still remains binding until the actual final exit; a minimum two years time from the triggering of Article 50.

 

If you have been affected by  any  UK immigration matter, please contact Solicitor Tito, a UK immigration and human rights solicitor, for a free initial consultation about your legal options.Call 07544 669131/01163800744 or on Skype: tito.mbariti.