Posted on 3rd May 2017

Until recently the right of citizens of the EU and their family members to move freely and reside within the territory of the EU Member States was governed by the Immigration (European Economic Area) Regulations 2006 (2006 Regulations). The 2006 Regulations are now revoked and replaced by the new Immigration (European Economic Area) Regulations 2016 (2016 Regulations) and the Immigration (European Economic Area) (Amendment) Regulations 2017 (2017 Regulations).

The 2017 Regulations came into force on 31 January 2017, amending the 2016 Regulations before they came into effect on 1 February 2017.

The 2016 and 2017 Regulations transpose and implement Council Directive 2004/38/EC into domestic law by virtue of s.2(2) of the European Communities Act 1972 and s.109 of the Nationality, Immigration and Asylum Act 2002.

The 2016 Regulations is a consolidation of the 2006 Regulations (and its amendments) and seeks to give effect to relevant jurisprudence of the Court of Justice of the European Union, the Court of Appeal and the Upper Tribunal (IAC).

While the key commencement date for most of the provisions in the 2016 Regulations was

1 February 2017, Schedule 5 however came into effect on 25 November 2016. It substitutes a new version of regulation 9 (family member of a British citizen) following the ruling in Surinder Singh and applies to British citizens who were residing abroad with their non-EEA family members and who, upon return to the UK, sought to exercise their rights under EU law instead of under the more onerous requirements of the Immigration Rules.

Under this route the 2016 Regulations require two key conditions to be satisfied. First, relocation must be ‘Genuine’, and second, relocation to the EU Member State must not be a means for circumventing the national laws that the non-EU national would ordinarily be subject to. The clear purpose behind the second condition is to create an obstacle to those seeking to enter by a period of residence abroad in another EU Member State following an unsuccessful application under the Immigration Rules.

In respect of other changes, Schedule 7 of the 2016 Regulations contains a useful table of equivalence. In summary, the provisions are not much different to the 2006 Regulations (as amended) regarding rights of residence and documentation. The 2016 Regulations reflect the content of the 2006 Regulations up to regulation 15. The numbering then changes to delete inserts following amendments to the 2006 Regulations over the last ten years.

There are two new provisions. First, regulation 21, requires all applications under the 2016 Regulations to be made in a prescribed manner using application forms provided by the Home Office. While the use of such forms was previously recommended, they are now mandatory. Second, regulation 27(8), which requires a court or tribunal to have regard to Schedule 1 (consideration of public policy, public security and the fundamental interests of society, etc.) when considering appeals and decisions relating to removal of EEA nationals.

Further changes reflect the decision of the Upper Tribunal in the case of Sala (EFMs: Right of Appeal : Albania) [2016] UKUT 411 abolishing the right of appeal for extended family members. This change will affect unmarried partners and dependant relatives whose only option will now be to reapply or surmount a costly application for Judicial Review.

Finally, the 2016 Regulations restrict the right of appeal for those whom the Home Office considers have entered into a marriage of convenience. Non-EEA family members subject to such a refusal must leave the UK and appeal out of country. Considering that appeals can take more than 12 months to be heard before the First-tier Tribunal, the effects of this change is likely to be significant for genuine applicants.

Overall, while the 2016 Regulations introduce a few noteworthy changes to the rights of EU nationals and their family members, the effects of the new changes remain to be seen in practice. The changes mostly formalise processes and requirements which already exist. Be that as it may, while an EU divorce has been initiated by the current Prime Minister casting the rights of EU citizens onto the political agenda once again, the 2016 Regulations remain law until a decree absolute is pronounced.

Ravinder Bagral, Immigration and Human Rights Barrister at No5 Chambers