The latest, and presumably last, amendments to the EEA Regulations were laid before Parliament on 3 July 2018. The Immigration (European Economic Area) (Amendment) Regulations 2018 (SI 2018 No. 801) will come into force on 24 July 2018.
Implementing a number of cases decided by the Court of Justice of the European Union, the amendments make the following changes to the Immigration (European Economic Area) Regulations 2016 (SI 2016 No. 1052).
Since 2012, the Secretary of State has interpreted the case of C-434/09 McCarthy to mean that British citizens who also hold the nationality of another EU country cannot rely on the EEA Regulations when sponsoring their family members. Unless they could use the so-called Surinder Singh route, dual British/EU citizens had to rely on (more restrictive) British domestic rules to sponsor their family members.
In the case of C-165/16 Lounes, the Court of Justice found instead that EU citizens who move to the UK and later naturalise as British retain their free movement rights under EU law, even though they have become British. Colin wrote about the case here.
The Regulations are amended to reflect the judgment in Lounes. Dual nationals can rely on EU law so long as they exercised treaty rights before naturalising as British citizens.
It seems that this change will survive Brexit. In fact, the statement of intent of 21 June 2018 (paragraph 6.5) confirms that family members of this category of dual nationals will be allowed to apply for status to live in the UK under the forthcoming EU Settlement Scheme. (Thanks to Chris Benn for highlighting this!)
Retaining self-employed status
The conditions where an EEA citizen can retain self-employed status are brought into line with the conditions under which an EEA citizen can retain worker status. The advantage of being able to keep self-employed status is that the person is considered to be “exercising treaty rights”. That means they continue to live lawfully in the UK, have access to certain benefits, are able to have family members join them in the UK, and can count time towards the five years’ residence needed to acquire permanent residence.
Self-employed EEA citizens can now retain that status where:
- They are temporarily unable to work as self-employed as the result of an illness or accident
- They are in “duly recorded involuntary unemployment” after having been self-employed persons, provided that they:
- registered as jobseekers
- entered the UK as self-employed or to seek self-employed work, or were in the UK seeking employment or self-employment immediately after having enjoyed a right to reside as self-employed, self-sufficient or student
- provide evidence of seeking employment or self-employment and having a genuine chance of being engaged
- They are involuntarily no longer self-employed and are doing vocational training, or
- They voluntarily stopped being self-employed in order to do vocational training related to their previous occupation
Those seeking employment who have already worked for a year as self-employed can retain status for longer than six months where they provide compelling evidence of continuing to seek employment and having a genuine chance of being engaged. Those who worked for less than one year can only retain their status for a maximum of six months.
Of course, if the reassurances given by the British government materialise, EU nationals will not be asked to prove that they have exercised treaty rights in the UK to be able to remain living here after Brexit. So if all goes well, this change will have a very small impact, and for a very short amount of time only.
These changes are somewhat late, in that they give effect to the 2014 case of C-456/12 O and B. This was about the “Surinder Singh route”. That allows non-EU family members of British citizens to rely on the more generous EU rules on coming to join their loved one in the UK where:
- the British citizen was exercising treaty rights in another EEA country or acquired the right to permanent residence there
- the applicant and the British citizen resided together in that other EEA country
- their residence in the EEA country was genuine
The Regulations are amended such that, in addition to the above, an applicant relying on this route must show that
- they were the family member of the British citizen in the other EEA country, and
- genuine family life was created or strengthened during their joint residence there
I do not think this will make a huge difference to many applicants. If the first three requirements are met, it is likely the two new requirements would also have been met.
Exclusion and deportation orders
Changes are made to the Regulations such that a person who is subject to an exclusion or a deportation order under the EEA Regulations does not have:
- a right of admission
- an initial right of residence
- an extended right of residence, or
- a permanent right of residence.
Someone who is subject to such an order and applies for a family permit or residence document will have their application deemed invalid.
These changes should only apply to people who have an exclusion or deportation order under EU law, rather than under British domestic rules. In fact, in the case of C-82/16 K.A. & Others v Belgium, discussed by Bilaal here, the Court of Justice found that applicants who are subject to an entry ban under national law cannot be precluded from applying for a right to reside under EU law.
Primary carers of EEA nationals
The EEA Regulations provide for some primary carers of EEA nationals to obtain rights to reside in the UK.
Under the EEA Regulations 2016, one of the criteria to be considered a primary carer was to be the sole carer or to share the care equally with someone who was not an “exempt person”. An exempt person is someone with the right to reside under the EEA Regulations, the right of abode or indefinite leave to remain in the UK.
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In other words, if Laura, an Argentinian national, was sharing the responsibility to care for Judith, a British national, with Judith’s father, a French national exercising treaty rights, then Laura could not be considered a primary carer under European law.
Following the case of C-133/15 Chavez-Vilchez and others (discussed by Colin here), the definition of primary carer is widened. It now includes those who share responsibility equally with someone else, even if that someone is an “exempt person”.
Deportation and permanent residence
I recently wrote about the case of C‑424/16 Vomero. The Court of Justice found that where an EEA national has resided in the UK for ten years, they must have acquired the right to permanent residence before being entitled to the enhanced protection against expulsion. The Regulations are amended to make that clear.
Other minor amendments to the Regulations include that:
- When a family member applies for an EEA family permit or residence document, they must also submit the EEA national’s identity card and passport. I am unclear how this constitutes a change as this has in fact been the case for a while in guidance and applications were rejected when the identity document of the EEA national was not submitted.
- EEA family permits can be issued in an electronic format.
- There is a clarification as to when a person must be outside the UK to bring an EEA appeal.
Of course, for how long those changes will remain relevant is yet to be seen. We can only hope that the positive changes, including for primary carers and dual nationals, will re-appear in the domestic rules on EEA nationals and their family members after Brexit.