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Immigration (European Economic Area) Regulations 2006: an overview
Free movement of persons has existed since the foundation of the European Community in 1957. It was initially linked to a person's status as a salaried worker, but was progressively extended to encompass all categories of citizens except those who would rely on public funds. The Citizens' Directive was implemented through the Immigration (European Economic Area) Regulations 2006 and merges into a single instrument all the legislation on the rights of entry and residence for EU citizens.
The legislation eliminates the need for EEA citizens to obtain a residence card, introduces a permanent right of residence (defining more broadly the situation of family members), and restricts the scope for the authorities to refuse or terminate residence of non-EEA nationals.
So what are some of the practical implications of the Regulations?
Right to reside for three months
Under the new Regulations, EEA citizens and their family members will be entitled to reside in the UK for three months. In the past, the right to reside was linked to the exercise of their treaty rights, which means working or looking for work, carrying on business, studying or being self-sufficient. This change will not make a significant difference to EEA citizens, but could affect a non-EEA family member who would usually require an entry visa to enter the UK.
Previously, a ‘family' has not included couples that are not legally married. Following these Regulations, the definition of family member has been extended to include civil partners and those with whom the EEA national has a ‘durable relationship'. ‘Durable' is not defined in terms of length of a relationship and the Home Office has indicated that the UK immigration rules should be used to determine whether a person qualifies. This view is widely considered inappropriate by immigration practitioners and it will only be a matter of time before it is challenged.
Right of readmission to the UK
The Regulations state that non-EEA national family members must be admitted to the UK on presentation of a valid passport and family permit, residence card or permanent residence card. If the individual cannot produce such a document, eg their family permit has expired, the immigration officer must allow them the opportunity to prove their status by other means and allow them entry to the UK. Since the Directive was implemented, non-EEA family members in such situations have been able to provide the certificate of application now issued by the Home Office, and this has been sufficient to gain re-entry.
Retaining the right of residence
Under the new Regulations, certain admitted family members, such as those widowed, orphaned or abandoned after one year's residence, and the parents of children, retain their right to reside in the UK. The Regulations also cover those who are divorced or separated where the marriage or civil partnership has lasted three years or more and there is one year's residence in the UK, victims of domestic violence, and a parent who has custody of a minor EU citizen or a right of access to such a child and has a court order for access only in the UK.
EEA nationals who have resided continuously in the UK for a period of five years shall have the right of permanent residence. This means that EEA nationals who fulfil the residence requirements may apply for British citizenship without having first to make an application for permanent residence. Continuity of residence will not be affected by temporary absences not exceeding a total of six months a year or by one absence for a maximum of 12 consecutive months for a valid reason such as a posting to a third country or pregnancy and childbirth. The status of permanent residence is maintained, provided that any absence does not exceed two consecutive years.
Comment
The above is a general overview of some of the changes introduced by the Citizen's Directive and is not a complete narrative of the new Regulations. These Regulations are far-reaching, and certain requirements/categories which have not been clearly defined are likely to be challenged in the courts in future. Discussions with the Home Office will be ongoing as particular anomalies arise. It is therefore recommended that any specific query with regard to EEA nationals and their family members be considered on a case-by-case basis.
By Rachael Mason and Zulaykha Bhaijee, solicitors, Magrath & Co.
E-mail: rachael.mason@magrath.co.uk; zulaykha.bhaijee@magrath.co.uk.
For more information please visit www.magrath.co.uk.