Immigration (European Economic Area) Regulations 2006

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Immigration (European Economic Area) Regulations 2006
Statutory Instrument
Royal Coat of Arms of the United Kingdom (variant 1, 1952-2022).svg
Parliament of the United Kingdom
Citation SI 2006/1003
Text of the Immigration (European Economic Area) Regulations 2006 as in force today (including any amendments) within the United Kingdom, from legislation.gov.uk.

The Immigration (European Economic Area) Regulations 2006 [1] (or EEA Regulations for short), amended by SI 2009/1117, [2] SI 2011/1247 [3] and SI 2015/694 [4] and which have now been mostly repealed and superseded by the Immigration (European Economic Area) Regulations 2016, was a piece of British legislation which implemented the right of free movement of European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 (the EEA family permit) to enter the UK.

Contents

The basis of the Immigration EEA Regulations 2006 is Directive 2004/38/EC. Member states are bound by the EC treaties to implement Directives into national law. However, a significant amount of case law (or precedents), many of them 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, [5] [6] [7] which may require further clarification through national courts and the European Court of Justice.

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
European Economic Area Family Permit visaentry clearance for non-EEA citizens
extended family membersbeneficiariesother 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 a 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 of an extended family member. These include dependents 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. The Directive does not seem to grant any rights to extended family members.

In the EEA Regulations, the acceptance of extended family members is not explicit. UK regulations have 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 are regarded under UK regulations as family members.

Accession states

Workers from recent member states have the right to move to the UK, but their access to the labour market is limited. The details are defined in the Worker Registration Scheme (WRS). Nationals of A8 countries will cease to be subject to the Worker Registration scheme and may benefit from free movement under the directive once 12 months of employment with a single employer has been completed. The transitional WRS scheme became obsolete in 2011 when A8 national workers will have the same rights as all other EEA nationals.

Completeness

The implementation is reasonably complete, although there are areas where the Directive has not been fully implemented. One example is a failure to correctly implement the Surinder Singh ruling of the European Court of Justice. [8]

Another issue with the UK implementation of the Directive is that the UK has kept national immigration law (the "Immigration Rules") separate from the implementation of the European law (the "EEA Regulations"). While it is possible to switch from the UK law to the European law, this does reset the clock for acquiring permanent residence. The legal situation of extended family members during this switch is uncertain, because they have to conform to both laws. Switching from European law to UK law is possible only after the EEA citizen became settled in the UK. [ citation needed ] The EEA national is considered settled when having attained permanent residence.

Implementation issues

By far the biggest implementation issue is the long processing time for the issue of residence cards (EEA2 applications). This can take 6 months or longer (current processing times as at January 2009 are up to a year according to the web site). During this time it is very difficult for the family member to start working, to open a bank account, to register with a doctor or to travel. This issue is created and aggravated by a combination of several seemingly harmless infringements. These infringements are:

And without the passport life can be difficult for a foreigner, because the passport is required in many situations. Even if the passport is received back, family members often encounter difficulties because of the short validity of the EEA family permit. For example, a GP may refuse to register the family member because the visa is not valid for another 6 months (which is not correct, but nevertheless common).

Most of these problems are aggravated by the way that the certificate of application (the acknowledgment of the application) is issued.

The obvious solution would be issue a temporary visa with the right to work immediately, and to send the residence card once the application is completed. A self-help option is to keep the passports and only include a copy in the application. According to individual reports the Home Office will request the passport once the application is ready for processing, and then the residence card is issued reasonably quickly.

There are further issues, but they have a comparatively small effect. The application forms (EEA1, EEA2, EEA3, EEA4, and VAF5) are overly complicated, ask for a good amount of unnecessary information, and ask for many more documents to be included than legally necessary under the directive. For example, the application for a residence card as the family member of an EEA national requires that the EEA national's employer stamps the application form and provides a letter confirming the EEA national's employment. Until March 2009 applications launched by family members from outside of the EEA are judged against the national immigration rules despite the ECJ's ruling in Metock case that the imposition of a requirement for prior lawful residence is unlawful under EU law. There are also issues for spouses that are separate but not yet divorced.

In May 2009 further regulations relating EEA applications were laid before parliament. These regulations introduced proscribed forms for requests of EEA residence documentation. The regulations allow the Home Office to decline to consider a request for residence documentation if the proscribed form is incorrectly completed or the individual requests documentation without using an application form. This move has brought criticism from immigration law practitioners who argue that the imposition of a proscribed form is unlawful under Directive 2004/38.

It is possible to enter the UK even without an EEA Family Permit, using an article 10 residence card, [9] but immigration officers are often not aware of this option, and personal reports are discouraging.

Communicating with the Home Office is usually difficult. The advice given on the web page is also often inconclusive, incomplete or leaving out essential rights of the applicant (see applying). Written requests for an update as to the progress of an application are met with a stock response indicating that the priority of the Home Office lies with the removal of foreign nationals.

Related Research Articles

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.

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">Visa policy of the Schengen Area</span> Policy on permits required to enter the Schengen Area

The visa policy of the Schengen Area is a component within the wider area of freedom, security and justice policy of the European Union. It applies to the Schengen Area and to other EU member states except Ireland. The visa policy allows nationals of certain countries to enter the Schengen Area via air, land or sea without a visa for up to 90 days within any 180-day period. Nationals of certain other countries are required to have a visa to enter and, in some cases, transit through the Schengen area.

<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 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">Passports of the European Union</span> Passport issued to the European Union

The European Union itself does not issue ordinary passports, but ordinary passport booklets issued by its 27 member states share a common format. This common format features a coloured cover emblazoned—in the official language(s) of the issuing country —with the title "European Union", followed by the name(s) of the member state, the heraldic "Arms" of the State concerned, the word "PASSPORT", together with the biometric passport symbol at the bottom centre of the front cover.

Stamp 4 refers to the stamp number, or immigration status, given to an individual with permission to reside in Ireland. It is issued to people on work visas/work authorisations, to the spouse of an Irish citizen, to the spouse of an EU citizen, to refugees, to people with Irish Born Child residency and those with long-term residency status. Once a person has been granted Stamp 4 status by the Irish Department of Justice, he or she is to report to their local Garda National Immigration Bureau in order to receive the physical card, or "Certificate of Registration". The card shows the holder's Stamp 4 status, as well as their photograph and other personal details.

<span class="mw-page-title-main">Schengen Area</span> Area of 27 European states without mutual border controls

The Schengen Area is an area comprising 27 European countries that have officially abolished passports and many other types of border control at their mutual borders. Being an element within the wider area of freedom, security and justice policy of the European Union (EU), it mostly functions as a single jurisdiction under a common visa policy for international travel purposes. The area is named after the 1985 Schengen Agreement and the 1990 Schengen Convention, both signed in Schengen, Luxembourg.

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">Swiss identity card</span> National identity card of Switzerland

The Swiss identity card in its current form dates back to July 1994. It is in the form of a plastic photocard. It can be used as a travel document when travelling within European Free Trade Association or to the European Union, the European microstates, Georgia, Turkey, and on organized tours to Tunisia.

<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 CHF150 for adults aged 15 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</span> Identity cards issued by member states of the European Economic Area

National identity cards are issued to their citizens by the governments of most European Economic Area (EEA) member states, the exceptions are Denmark and Ireland. Ireland however issues a passport card which is a valid document in the EEA and Switzerland. Denmark issues simpler identity cards that are not valid as travel documents. From 2 August 2021, new identity cards are harmonized as a common identity card model replaced the various formats already in use. There are approximately 200 million national identity cards in use in the EU/EEA, including 53 million of the new EU-standard cards. They are compulsory in 14 EU countries, voluntary in 9 countries and in 8 countries they are semi-compulsory. Where the card is compulsory, in some member countries it is required to be carried at all times, while in other countries the mere possession of the card is sufficient.

<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.

<span class="mw-page-title-main">Immigration (European Economic Area) Regulations 2016</span> United Kingdom legislation

The Immigration Regulations 2016, 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 Act 2020 on 31 December 2020, at the end of the transition period.

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. ↑ "The Immigration (European Economic Area) Regulations 2006", legislation.gov.uk , The National Archives, SI 2016/1052
  2. ↑ "Statutory Instruments 2009 No. 1117 – The Immigration (European Economic Area) (Amendment) Regulations 2009". 1 June 2009. Retrieved 14 September 2009.
  3. ↑ "Statutory Instruments 2011 No. 1247 – The Immigration (European Economic Area) (Amendment) Regulations 2011". 2 June 2011. Retrieved 25 May 2011.
  4. ↑ Immigration Media, "What do the 2015 EEA Regulations do?" Archived 27 April 2015 at the Wayback Machine , "Immigration Media", 20 April 2015
  5. ↑ "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). 12 December 2008. Retrieved 17 December 2008.
  6. ↑ Press release for the commission report "Free movement and residence rights of EU citizens and their families: the Commission assesses application by Member States". 10 December 2008. Retrieved 17 December 2008.
  7. ↑ "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.
  8. ↑ Yeo, Colin (2 September 2014). "EU to investigate UK interpretation of Surinder Singh". Free Movement: updates and commentary on immigration and asylum law. Retrieved 20 September 2015.
  9. ↑ "Entering the UK as the holder of an Article 10 or 20 residence card".


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