Immigration (European Economic Area) Regulations 2016

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Immigration (European Economic Area) Regulations 2016
Royal Coat of Arms of the United Kingdom (variant 1, 1952-2022).svg
Parliament of the United Kingdom
Citation SI 2016/1052
Dates
Made2 November 2016
Laid before Parliament3 November 2016
Commencement 1 February 2017
Repealed31 December 2020
Other legislation
Repeals/revokes Immigration (European Economic Area) Regulations 2006
Transposes Directive 2004/38/EC
Amended by
  • SI 2017/1
  • SI 2017/1242
  • SI 2018/801
  • SI 2019/468
  • SI 2019/1155
Repealed by Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020
Relates to
Status: Repealed
Text of the Immigration (European Economic Area) Regulations 2016 as in force today (including any amendments) within the United Kingdom, from legislation.gov.uk.

The Immigration (European Economic Area) Regulations 2016, [1] or EEA Regulations 2016 for short, constituted the law that implemented the right of free movement of European Economic Area (EEA) nationals and their family members in the United Kingdom. The regulations were repealed by the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 on 31 December 2020, at the end of the transition period. [2]

Contents

The regulations stand as amended by the following statutory instruments: SI 2017/1, [3] SI 2017/1242, [4] SI 2018/801, [5] SI 2019/468, [6] SI 2019/1155. [7]

The Regulations were based on Directive 2004/38/EC. This allowed EEA citizens and their family members to live and work in the UK without explicit permission, and British citizens to work elsewhere in the EEA. Family members may have needed a special entry clearance (the EEA family permit) to enter the UK.

The Regulations replaced the Immigration (European Economic Area) Regulations 2006 apart from Articles 7A and 7B which are saved from the 2006 regulations.

EU free movement rights come originally from the Treaty establishing the European Community, in particular: [8]

Article 18 (6)

1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.

2. If action by the Community should prove necessary to attain this objective and this Treaty has not provided the necessary powers, the Council may adopt provisions with a view to facilitating the exercise of the rights referred to in paragraph 1. The Council shall act in accordance with the procedure referred to in Article 251.

3. Paragraph 2 shall not apply to provisions on passports, identity cards, residence permits or any other such document or to provisions on social security or social protection.

Further clarifications as to the meaning of Article 18 TEC amongst others were introduced by Directive 2004/38/EC. (Meanwhile, Swiss citizens are covered by a separate bilateral agreement whereby they are treated basically the same as EEA nationals.) This is the basis of the UK's Immigration EEA Regulations 2006, and the subsequent replacement regulations of 2016.

EU Free Movement law is a constantly evolving and changing, which ensures that these regulations need to evolve frequently and this is shown by the significant number of amendments issued by Statutory instruments from the British Government.

Member states are bound by the EC treaties to implement Directives into national law. However, a significant amount of case law (or precedents), often predating the directive, and the historical development (see Freedom of movement for workers) must also be taken into account to correctly interpret EU law. Still, ambiguities in the Directive and misinterpretation by the member states exist [9] [10] [11] which may require further clarification through national courts and the European Court of Justice. Due to the teleological interpretation of EU Law, [12] more situations are brought under the scope of EU law and consequently provide free movement rights to those who would not otherwise have been given those privileges.

For example, in Gerardo Ruiz Zambrano v Office national de l’emploi (ONEm), [13] [14] the CJEU held that the non-EEA carer of a child who is a Union Citizen would derive rights of residence from the treaty directly and it would therefore be unlawful to refuse a residence card to that carer if "such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen". Essentially, because the child would be forced to leave the EU with his carer/parent, then they would be deprived of their own rights to move and reside freely within the Member states, that situation would be contrary to EU law and therefore EU rights are extended to the carer. These situations are considered under Regulation 16.

Terminology and applications

The EEA Regulations define a number of terms in addition to the terms in the Directive 2004/38.

Terminology
EEA RegulationsDirective 2004/38Meaning
EEA Family Permit VisaEntry clearance for non-EEA citizens
Extended Family Members BeneficiariesOther family members or dependants, partners in a durable relationship
Applications
ApplicationApplicantResultvalid for
VAF5non-EEAEEA family permit6 months
EEA1EEARegistration certificate5 years or envisaged period of residence if less
EEA2non-EEA Residence card 5 years or envisaged period of residence if less
EEA3EEAPermanent residence cardNo limit
EEA4non-EEAPermanent residence card10 years

Core and extended family members

The definition of Core family member (of an EEA national) only includes a spouse or civil partner, children under 21, or dependant children of any age and dependent parents. A person outside of this definition (especially unmarried partners) may fall under the category "extended family member". [15] These include dependants of the EU citizens, members of the household, and a partner in a "durable relationship". While the Directive 2004/38 requires member states to "facilitate entry" for extended family members, the details are not defined and the Directive does not seem to grant any rights to extended family members.

British regulations stated specific criteria for extended family members, including unmarried and same-sex partners. Once an extended family member has been issued with an EEA family permit, Residence Card or Residence Certificate, they were regarded under British regulations as family members as defined by Regulation 7(3). [16]

British Citizens

EU Free movement rights did not generally apply to family members of British citizens when they are resident in the United Kingdom: this is known as the "wholly internal rule". Family members of British Citizens are expected to apply under the national immigration law (called the "Immigration Rules") which are separate from the implementation of the European law (the "EEA Regulations"). This can result in situations where family members of EU nationals are treated more favourably than those of British Citizens. [17]

For example, applications for 2.5-year leave to remain as a spouse under the Immigration Rules were in excess of £1000 for a 2.5 year period, with an additional NHS surcharge of £250; the applicant must have passed an English language test; the sponsor needed to show a minimum income requirement of around £18,000 per annum; and there was no access to public funds like unemployment benefits. [18] In contrast, an application under the EEA Regulations cost £65 and was valid for 5 years, and the applicant had recourse to public funds as long as their sponsor continued to exercise free movement rights.

The primary situations where British citizens were considered as EU citizens for the purpose of settlement were defined in Regulation 9, the most prevalent situation was known as the Surinder Singh route to citizenship, [19] which was where the British Citizen lived and exercised Free-movement rights in another EU state before returning to the UK.

While it was possible to switch from the British law to the European law, this did reset the clock for acquiring permanent residence. The legal situation of extended family members during this switch was uncertain, because they have to conform to both laws. Switching from European law to British law was possible only after the EEA citizen became settled in the UK.[ citation needed ] The EEA national was settled once they had attained permanent residence.

Related Research Articles

<span class="mw-page-title-main">European Union citizenship</span> Legal right conferred to citizens of EU member states

European Union citizenship is afforded to all nationals of member states of the European Union (EU). It was formally created with the adoption of the 1992 Maastricht Treaty, at the same time as the creation of the EU. EU citizenship is additional to, as it does not replace, national citizenship. It affords EU citizens with rights, freedoms and legal protections available under EU law.

The right of abode is an individual's freedom from immigration control in a particular country. A person who has the right of abode in a country does not need permission from the government to enter the country and can live and work there without restriction, and is immune from removal and deportation.

The freedom of movement for workers is a policy chapter of the acquis communautaire of the European Union. The free movement of workers means that nationals of any member state of the European Union can take up an employment in another member state on the same conditions as the nationals of that particular member state. In particular, no discrimination based on nationality is allowed. It is part of the free movement of persons and one of the four economic freedoms: free movement of goods, services, labour and capital. Article 45 TFEU states that:

  1. Freedom of movement for workers shall be secured within the Community.
  2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.
  3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:
  4. The provisions of this article shall not apply to employment in the public service.
<span class="mw-page-title-main">Switzerland–European Union relations</span> Bilateral relations

Switzerland is not a member state of the European Union (EU). It is associated with the Union through a series of bilateral treaties in which Switzerland has adopted various provisions of European Union law in order to participate in the Union's single market, without joining as a member state. Among Switzerland's neighbouring countries, all but one are EU member states.

A European Economic Area Family Permit was an immigration document that assisted the holder to enter the United Kingdom as a family member of a citizen of a contracting state to the European Economic Area agreement or a Swiss citizen. They were issued by the UK immigration authorities under the Immigration Regulations 2006 (UK).

<span class="mw-page-title-main">Residence card of a family member of a Union citizen</span>

European Economic Area (EEA) citizens have the right of free movement and residence throughout the EEA. This right also extends to certain family members, even if they are not EEA citizens. A Residence card of a family member of a Union citizen is issued to the family member to confirm this right of residence. The holder of a valid Residence Card is entitled to use this document in lieu of an entry visa for entry to all EEA member states. There is not a unified format for this card throughout the EU.

<span class="mw-page-title-main">Citizens' Rights Directive</span> EU directive defining right of free movement

The Citizens' Rights Directive 2004/38/EC sets out the conditions for the exercise of the right of free movement for citizens of countries in the European Economic Area (EEA), which includes the member states of the European Union (EU) and the three European Free Trade Association (EFTA) members Iceland, Norway and Liechtenstein. Switzerland, which is a member of EFTA but not of the EEA, is not bound by the Directive but rather has a separate multilateral sectoral agreement on free movement with the EU and its member states.

<span class="mw-page-title-main">Norwegian passport</span> Passport of the Kingdom of Norway issued to Norwegian citizens

A Norwegian passport is the passport issued to nationals of Norway for the purpose of international travel. Beside serving as proof of Norwegian citizenship, they facilitate the process of securing assistance from Norwegian consular officials abroad.

<span class="mw-page-title-main">Liechtenstein passport</span> Passport of the Principality of Liechtenstein

Liechtenstein passports are issued to nationals of Liechtenstein for the purpose of international travel. Beside serving as proof of Liechtenstein citizenship, they facilitate the process of securing assistance from Liechtenstein consular officials abroad.

<span class="mw-page-title-main">Immigration (European Economic Area) Regulations 2006</span> United Kingdom legislation

The Immigration Regulations 2006, amended by SI 2009/1117, SI 2011/1247 and SI 2015/694 and which have now been mostly repealed and superseded by the Immigration Regulations 2016, was a piece of British legislation which implemented the right of free movement of European Economic Area (EEA) nationals and their family members in the United Kingdom. It is based on Directive 2004/38/EC. It allows EEA citizens and their family members to live and work in the UK without explicit permission. Although Swiss citizens are covered by a separate bilateral agreement; they are treated basically the same as EEA nationals. Family members may need a special entry clearance to enter the UK.

Metock v Minister for Justice, Equality and Law Reform (2008) C-127/08 is a European Union law case, significant in Ireland and Denmark, on the Citizens Rights Directive and family unification rules for migrant citizens. Citizenship of the European Union was established by Article 20 of the Treaty on the functioning of the European Union (TFEU) and the Citizenship Directive 2004/38 elaborates the right of Union citizens and their family members to move and reside freely in the territory of a member state, consolidating previous Directives dealing with the right to move and reside within the European Community (EC).

<span class="mw-page-title-main">Visa policy of Ireland</span> Policy on permits required to enter Ireland

The visa policy of Ireland is set by the Government of Ireland and determines visa requirements for foreign citizens. If someone other than a European Union, European Economic Area, Common Travel Area or Swiss citizen seeks entry to Ireland, they must be a national of a visa-exempt country or have a valid Irish visa issued by one of the Irish diplomatic missions around the world.

<span class="mw-page-title-main">Liechtenstein identity card</span> National identity card of Liechtenstein

The Liechtenstein identity card is issued to Liechtenstein citizens by the Immigration and Passport Office in Vaduz. The card costs CHF65 for adults aged 18 or over and is valid for 10 years. For children, the card costs CHF30 and has a validity of 3 years.

<span class="mw-page-title-main">National identity cards in the European Economic Area and Switzerland</span> Identity cards issued by member states of the European Economic Area

National identity cards are identity documents issued to citizens of most European Union and European Economic Area (EEA) member states, with the exception of Denmark and Ireland. As a new common identity card model harmonized the various formats in use from 2 August 2021, with older ID cards currently being phased out according to EU Regulation 2019/1157.

R v Immigration Appeal Tribunal and Surinder Singh [1992] 3 CMLR 358 is a UK immigration law and EU law case involving the right of entry and residence into a nation state.

A long-term resident in the European Union is a person who is not a citizen of an EU country but has resided legally and continuously within its territory for five years with a means of support and fulfills some further requirements, as defined in Directive 2003/109/EC. The status permits the holder some of the rights of free movement afforded to EU/EEA citizens in the participating countries; of the EU countries Denmark and Ireland do not participate in implementing the Directive. The implementation of the directive is left to the participating countries, with some national variations in the requirements for and benefits of long-term resident status.

<span class="mw-page-title-main">Norwegian identity card</span> National identity card of Norway

The Norwegian identity card, commonly referred to as the national identity card in Norway, is a non-compulsory biometric identity document issued since 30 November 2020. It is one of two official identity documents issued by the Norwegian Police Service, the other being the Norwegian passport. It is only issued to Norwegian citizens, and may indicate citizenship so that it can be used as a travel document facilitating freedom of movement within the European Free Trade Association and the European Economic Area. For travel within the Nordic countries no identity documentation is legally required for Nordic citizens due to the Nordic Passport Union.

<span class="mw-page-title-main">Passports of the EFTA member states</span>

Passports of the EFTA member states are passports issued by the European Free Trade Association (EFTA) member states Iceland, Liechtenstein, Norway and Switzerland. EFTA is in this article used as a common name for these countries.

The European Union Settlement Scheme is an immigration regime of the United Kingdom introduced by the Home Office in 2019, under the new Appendix EU of the UK's Immigration Rules, in response to the Brexit situation. EUSS processes the registration of nationals of EU and EFTA countries who were resident in the United Kingdom prior to the end of the Brexit transition/implementation period at 11pm GMT on 31 December 2020. Successful applicants receive either "pre-settled status" or "settled status", generally depending on the length of time they have been resident in the United Kingdom.

In EU law, reverse discrimination occurs when the national law of a member state of the European Union provides for less favourable treatment of its citizens or domestic products than other EU citizens/goods under EU law. Since the creation of the Single Market, the right of EU citizens to move freely within the EU with their families. The right to free movement was codified in EU Directive 2004/38/EC which applies across the whole EEA. However, reverse discrimination is permitted in EU law because of the legal principle of subsidiarity, i.e. EU law is not applicable in situations purely internal to one member state. This rule of purely internal situation does not apply if the EU citizens can provide a cross-border link, e.g. by travel or by holding dual EU citizenship. EU citizens and their families have an automatic right of entry and residence in all EU countries except their own, with exceptions created by a cross-EU state border link. For example, an Irish citizen living in Germany with his family before returning to Ireland can apply for EU family rights. This is referred to as the Surinder Singh route. The cross-border dimension has been the focus of many court cases in recent years, from McCarthy to Zambrano.

References

  1. ↑ "Statutory Instrument 2016 No. 1052 – The Immigration (European Economic Area) Regulations 2016". 2 November 2016. Retrieved 25 August 2019.
  2. ↑ https://www.legislation.gov.uk/ukpga/2020/20/schedule/1/paragraph/2 . Retrieved 15 February 2021.{{cite web}}: Missing or empty |title= (help)
  3. ↑ "Statutory Instruments 2017 No. 1 – The Immigration (European Economic Area) (Amendment) Regulations 2017". 5 January 2017. Retrieved 25 August 2019.
  4. ↑ "Statutory Instruments 2017 No. 1242 – The Immigration Act 2016 (Consequential Amendments) (Immigration Bail) Regulations 2017". 7 December 2017. Retrieved 25 August 2019.
  5. ↑ "Statutory Instruments 2018 No. 801 – The Immigration (European Economic Area) (Amendment) Regulations 2018". 2 July 2018. Retrieved 25 August 2019.
  6. ↑ "Statutory Instruments 2019 No. 468 – The Immigration (European Economic Area Nationals) (EU Exit) Regulations 2019". 6 March 2019. Retrieved 25 August 2019.
  7. ↑ "Statutory Instruments 2019 No. 1155 – The Immigration (European Economic Area) (Amendment) Regulations 2019". 22 July 2019. Retrieved 25 August 2019.
  8. ↑ "EUR-Lex - 12002E/TXT - EN". Official Journal C 325, 24/12/2002 P. 0033 - 0184; Official Journal C 340, 10/11/1997 P. 0173 - Consolidated version. Retrieved 28 August 2019.
  9. ↑ "Report from the Commission to the European Parliament and the Council on the application of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of Member States" (PDF). 25 March 2009. Retrieved 14 September 2019.
  10. ↑ Press release for the commission report "Free movement and residence rights of EU citizens and their families: the Commission assesses application by Member States" (PDF). 10 December 2008. Retrieved 17 December 2008.
  11. ↑ "Communication From the Commission to the European Parliament and the Council on guidance for better transposition and application of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States". 2 July 2009. Retrieved 12 July 2009.
  12. ↑ "Teleological Interpretation - OnComment - Wikis der Freien Universität Berlin". wikis.fu-berlin.de. Retrieved 28 August 2019.
  13. ↑ "CURIA - Documents". curia.europa.eu. Retrieved 28 August 2019.
  14. ↑ "Apply for a Zambrano Derivative Residence Card". Richmond Chambers. 28 June 2019. Retrieved 30 August 2019.
  15. ↑ Taroni, Richmond Chambers Immigration Barristers-Catherine (10 July 2019). "Extended Family Members of EEA Nationals in EU Law | Lexology". www.lexology.com. Retrieved 30 August 2019.
  16. ↑ "7. "Family member" - EEA Regulations 2020". www.eearegulations.co.uk. Retrieved 3 July 2020.
  17. ↑ Tryfonidou, Alina. "Purely Internal Situations and Reverse Discrimination in a Citizens' Europe: Time to "Reverse" Reverse Discrimination?" (PDF). Archived from the original (PDF) on 8 August 2017. Retrieved 28 August 2019.
  18. ↑ "Government profits double in four years as immigration laws tighten and visa fees rise". Channel 4 News. 11 August 2019. Retrieved 30 August 2019.
  19. ↑ Nye, Catrin (25 June 2013). "The Britons leaving the UK to get their relatives in" . Retrieved 28 August 2019.
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