Last week the Home Office updated its guidance on EEA decisions on grounds of public policy and security. The amended policy seeks to clarify some of the previous text and highlights further implications of the EEA Regulations 2016.
Extended family members
The Home Office now requires extended family members who satisfy regulation 8 of the EEA Regulations 2016 to have valid documentation confirming their right of residence. Formal applications and acquisition of residence rights for such family members will be essential. Although this has always been the practice for extended family members, the Home Office now has added a specific mention in the policy guidance.
The Home Office is now looking to enforce regulation 23(6)(a). This applies to a non-EEA child whose residence is dependant solely on the person who is subject to curtailment of rights. Administrative removal of the child can be sought on the basis that the child no longer has the right to remain in the UK.
Right of residence
The Home Office clarifies that a person with derivative rights of residence can have their rights restricted on the grounds of public policy or public security. This guidance replaces the previous test of “conducive to the public good”.
Deportation of Irish citizens
The Home Office maintains the policy that as a matter of routine Irish nationals will not be deported from the UK. But it adds that in exceptional circumstances the Home Office will decide to pursue deportation. Such circumstances include “where a person is convicted and serving a custodial sentence of 10 years or more for a terrorism offence, murder, or a serious sexual or violent offence”.
Liability to deport
Home Office caseworkers will no longer notify other immigration officials of information held about an individual, such as ties to the UK or their length of residence. This places the onus on the client to raise or reiterate such factors under the section 120 notice.
People deported under the Immigration Acts who have subsequently acquired EEA rights
The Home Office introduces new guidance for caseworkers considering individuals who are subject to a deportation order and have then acquired EEA rights by becoming the family member of an EEA national, acquiring nationality of an EEA country, etc.
In such cases the previous deportation will continue to take effect. Written submissions will need to be made to have the deportation order revoked, with the Home Office taking into account regulation 27 of the EEA Regulations 2016.
It will be open to the Home Office to reissue the deportation order under the EEA Regulations instead of the Immigration Acts.
Power to detain
The Home Office introduces a section giving effect to regulation 32(1). This is an anticipatory power to detain on the basis of reasonable grounds to suspect that the person may be deported under regulation 23(6)(b). Thus detention can take place whilst a decision is pending. Practitioners however should not be deterred from making bail applications as the Home Office provides no timeframe for its decision.
Decision to impose a restriction on work
The Home Office introduces a new section in relation to the implementation of regulation 32(3), which says that anybody subject to deportation can be treated in a like manner to Schedule 3 of the Immigration Act 1971. This allows it to place restrictions on employment, reporting, residency, etc.
Any such restrictions are discretionary and the Home Office must make a proportionate decision after assessing the impact the restriction will have, especially if a child will be impacted.
EEA residency applications
The Home Office highlights the requirements of regulation 34(4). While a valid deportation order is in place, an application for residency will be considered invalid.