The Immigration (European Economic Area) Regulations 2006

Introduction

The Immigration (European Economic Area) Regulations 2006 (“the Regulations”) transpose Directive 2004/38/EC (“the Directive”) into UK law and sets out the rights of EEA nationals and their family members to be admitted to and reside in the UK in certain capacities, including confirming the criteria for rights to permanent residence; The regulations enable documentation to be secured by those exercising free movement rights in a relevant capacity (or their family members); and define the powers to deny or revoke documentation on grounds of public policy, public health or public security.

These Regulations have been amended as of 16 July 2012 in order to:

A. Give effect to the judgments of the Court of Justice of the European Union (ECJ) in the cases of: Chen (C-200/02), Ibrahim (C-310/08) and Teixeira (C-480/08) which establish new rights to enter and reside in the UK

B. Give effect to the judgments of the ECJ in the cases of Lassal (C-162/09), Dias (C-325/09), McCarthy (C-434/09) and Ziolkowski and others (C-424/10 and 425/10) which restrict the terms on which free movement rights can be exercised

C. Make amendments to better reflect operational practice or to implement agreements reached with the European Commission.

D. Extend the public policy, public health and public security powers to enable wider refusal of documentation and denial of residence rights

E. Amend the rights of appeal and evidence required when asserting a right to appeal

Summary of key changes

New Rights of Residence

1. Background

New regulation 15A sets out the conditions which a person must satisfy in order to qualify for a derivative right of residence on the basis of the ECJ judgments in Chen and Ibrahim and Teixeira. Rights to reside on the basis of these judgments are not ones which stem directly from the Directive, explaining why they are referred to as ‘derivative rights’. This means that the recognition of this right by the UK is not equal to rights under the Directive. It also means that those who acquire rights to reside on this basis are not eligible to acquire permanent residence in the United Kingdom or to sponsor wider family members in to the UK once they have acquired a right to reside.

The following categories of people are provided for in regulation 15A:

Primary carers of self-sufficient EEA national children
Children of EEA national workers or former workers where the child is in education in the UK
Primary carers of children of EEA national workers or former workers where that child is in education in the UK, and
Dependent children under the age of 18 of the primary carers in each of the categories listed above .

Restrictions on Free Movement Rights

McCarthy
The definition of “EEA national” has been amended in light of the ECJ judgment in McCarthy, which confirmed that the provisions of the Directive are not applicable to an EEA national who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State.

An EEA national is therefore now defined in amended regulation 2(1) as “a national of an EEA State who is not also a United Kingdom national”.

Lassal
The Regulations have also been amended to give effect to the judgment in Lassal, as further revised by the judgment in Dias. The amended Regulations now allow for EEA nationals to rely upon continuous periods of residence of 5 years spent in accordance with earlier instruments of European Law when assessing the requirements for permanent residence under the 2006 Regulations.

Extending Public Policy, Public Health, Public Security Refusal Powers

The following changes to the Regulations have been made with regards the Secretary of State’s powers of refusal on the basis of public policy, public health and public security

New regulation 20A reflects the power in the Directive for the Secretary of State to cancel a right to reside on public health, public policy or public security grounds where that individual has not applied for documentation confirming their right to reside and where it is not possible to remove that person from the UK.

Regulation 24 is amended to make clear that EEA nationals and their family members will not be detained unless for reasons of public policy, public health or public security.

Regulations 13, 14 and 15 are amended to reflect the power in the Directive to deny the actual right of residence a person has under the Directive where the Secretary of State is denying documentation on grounds of public policy, public health or public security

Amendment to Appeal Rights

Some of the following changes have been made to the regulations which affect appeal rights against EEA decisions:

New regulation 15B provides for a right of residence to continue while an appeal against certain decisions made under the Regulations could be brought or is pending.

Regulation 26 is amended to require a direct family member or an extended family member of an EEA national wishing to assert a right of appeal to produce evidence of identity and nationality. It is also amended to confirm the right of appeal for family members with a retained right of residence