Immigration (European Economic Area) Regulations 2006

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EEA Regulations for short) amended by SI 2009/1117,[2] SI 2011/1247[3] and SI 2015/694 [4] which have now been mostly repealed and superseded by the Immigration (European Economic Area) Regulations 2016 was a piece of British legislation which implemented the right of free movement of EEA nationals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

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 visa entry clearance for non-EEA citizens
extended family members beneficiaries other family members or dependants, partners in a durable relationship
Applications
ApplicationApplicantResultvalid for
VAF5 non-EEA EEA family permit 6 months
EEA1 EEA registration certificate 5 years or envisaged period of residence if less
EEA2 non-EEA residence card 5 years or envisaged period of residence if less
EEA3 EEA permanent residence card No limit
EEA4 non-EEA permanent residence card 10 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. 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 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. 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:

  • The initial visa (EEA family permit) is valid for only 6 months (reduced in 2006 from previously 12 months).
  • The processing of the EEA2 application (which is required to be completed within 6 months) often takes longer than 6 months.
  • During this time the passport of both the EEA citizen and the family member is held by the Home Office.
  • While it is possible to request the passport back without cancelling the application, the current web page does not mention this (unlike the previous one).

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 certificate of application (which is required to be issued immediately) is sent very slowly.
  • The certificate of application is a generic letter without reference to the concrete case.
  • The certificate of application does not grant the right to enter the UK.

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.

References
  1. "Statutory Instrument 2006 No. 1003 – The Immigration (European Economic Area) Regulations 2006". 30 April 2006. Retrieved 17 December 2008.
  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" (PDF). 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. "EU to investigate UK interpretation of Surinder Singh". Free Movement: updates and commentary on immigration and asylum law. Retrieved 20 September 2015.
  9. https://www.gov.uk/government/publications/entering-the-uk-as-the-holder-of-an-article-10-residence-card/entering-the-uk-as-the-holder-of-an-article-10-residence-card


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