Immigration (European Economic Area) Regulations 2016

The Immigration (European Economic Area) Regulations 2016,[1] or EEA Regulations 2016 for short, constitute the law that implements the right of free movement of European Economic Area (EEA) nationals and their family members in the United Kingdom.

EEA Regulations 2016
CitationThe Immigration (European Economic Area) Regulations 2016
Dates
Made2 November 2016
Laid before Parliament3 November 2016
Commencement1 February 2017
Repealed31 December 2020
Other legislation
RepealsThe Immigration (European Economic Area) Regulations 2006
TransposesDirective 2004/38/EC
Amended bySI 2017/1, SI 2017/1242, SI 2018/801, SI 2019/468, SI 2019/1155
Relates toEuropean Communities Act 1972, Nationality, Immigration and Asylum Act 2002
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 regulations stand as amended by the following statutory instruments: SI 2017/1,[2] SI 2017/1242,[3] SI 2018/801,[4] SI 2019/468,[5] SI 2019/1155.[6] They will be amended further by SI 2019/745[7] on "the later of exit day or the day after the day on which they are made" and by SI 2019/1383[8] with sections which apply on or immediately before the exit day.

The Regulations are based on Directive 2004/38/EC. This allows 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 need 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. The Regulations will be repealed by the Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2019-21[9] should it be enacted by Parliament.

EU free movement rights come originally from the Treaty establishing the European Community, in particular:[10]

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[11][12][13] which may require further clarification through national courts and the European Court of Justice. Due to the teleological interpretation of EU Law,[14] 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),[15][16] 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 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".[17] 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 state 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 British regulations as family members as defined by Regulation 7(3).[18]

British Citizens

EU Free movement rights do 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.[19]

For example, applications for 2.5-year leave to remain as a spouse under the Immigration Rules are 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 needs to show a minimum income requirement of around £18,000 per annum; and there is no access to public funds like unemployment benefits.[20] In contrast, an application under the EEA Regulations currently costs £65 and is valid for 5 years, and the applicant has recourse to public funds as long as their sponsor continues to exercise free movement rights.

The primary situations where British citizens are considered as EU citizens for the purpose of settlement are defined in Regulation 9, the most prevalent situation is known as the Surinder Singh route to citizenship,[21] which is where the British Citizen has lived and exercised Free-movement rights in another EU state before returning to the UK.

While it is possible to switch from the British 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 British law is possible only after the EEA citizen became settled in the UK. The EEA national is considered settled when having attained permanent residence.

References
  1. "Statutory Instrument 2016 No. 1052 – The Immigration (European Economic Area) Regulations 2016". 2 November 2016. Retrieved 25 August 2019.
  2. "Statutory Instruments 2017 No. 1 – The Immigration (European Economic Area) (Amendment) Regulations 2017". 5 January 2017. Retrieved 25 August 2019.
  3. "Statutory Instruments 2017 No. 1242 – The Immigration Act 2016 (Consequential Amendments) (Immigration Bail) Regulations 2017". 7 December 2017. Retrieved 25 August 2019.
  4. "Statutory Instruments 2018 No. 801 – The Immigration (European Economic Area) (Amendment) Regulations 2018". 2 July 2018. Retrieved 25 August 2019.
  5. "Statutory Instruments 2019 No. 468 – The Immigration (European Economic Area Nationals) (EU Exit) Regulations 2019". 6 March 2019. Retrieved 25 August 2019.
  6. "Statutory Instruments 2019 No. 1155 – The Immigration (European Economic Area) (Amendment) Regulations 2019". 22 July 2019. Retrieved 25 August 2019.
  7. "Statutory Instruments 2019 No. 745 – The Immigration, Nationality and Asylum (EU Exit) Regulations 2019". 28 March 2019. Retrieved 25 August 2019.
  8. "The Immigration (Amendment) (EU Exit) Regulations 2019". www.legislation.gov.uk. Retrieved 14 January 2020.
  9. "Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2019-21". UK Parliament. Retrieved 19 July 2020.
  10. "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.
  11. "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.
  12. 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.
  13. "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.
  14. "Teleological Interpretation - OnComment - Wikis der Freien Universität Berlin". wikis.fu-berlin.de. Retrieved 28 August 2019.
  15. "CURIA - Documents". curia.europa.eu. Retrieved 28 August 2019.
  16. "Apply for a Zambrano Derivative Residence Card". Richmond Chambers. 28 June 2019. Retrieved 30 August 2019.
  17. Taroni, Richmond Chambers Immigration Barristers-Catherine. "Extended Family Members of EEA Nationals in EU Law | Lexology". www.lexology.com. Retrieved 30 August 2019.
  18. "7. "Family member" - EEA Regulations 2020". www.eearegulations.co.uk. Retrieved 3 July 2020.
  19. Tryfonidou, Alina. "Purely Internal Situations and Reverse Discrimination in a Citizens' Europe: Time to "Reverse" Reverse Discrimination?" (PDF). Retrieved 28 August 2019.
  20. "Government profits double in four years as immigration laws tighten and visa fees rise". Channel 4 News. Retrieved 30 August 2019.
  21. Nye, Catrin (25 June 2013). "The Britons leaving the UK to get their relatives in". Retrieved 28 August 2019.
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