These new regulations do seem to be aimed squarely at the Surinder Singh route. Indeed, at a quick glance through, the only major change seems to have been
Regulation 9, the one that applies to the SS Route. As a comparision, here is the
current Regulation 9.
Here are some of the most significant changes that I could spot at a glance. I am sure
Obie and
vinny will go into further depth.
a) SS sponsors do not need to be workers in the EEA state. They can be exercising treaty rights in any category except job-seeker. So, self-sufficient people can also sponsor their direct family members.
b) This one is a biggie, in my opinion. Only direct family members can be included in the SS route. No more EFM migration via the SS route.
This bit may possibly be legal. The
original SS judgment only applied to the spouse (and possibly children). And even the
Directive 2004/38/EC only asks for EFMs to be facilitated and gives no further rights. Indeed,
prima facie, I do not even see a requirement for EFMs to be issued Residence Cards under the EEA Regulations. The
Rahman judgment states that each application must be assessed on individual merits and the requirements for assessment must consistent with the word "facilitate", but also that there is no absolute right to an EFM family permit.
This may also signal a potential hardening of the requirements for EFMs on the way.
c) It bluntly states (Paragraph 4(a)) that the SS Route does not apply if it appears to be used as a way around the Immigration Rules. That will be a hugely subjective assessment and I daresay that the courts will have to strike it out merely because it is so subjective and wide.
d) It also states that one factor regarding testing genuineness of applicability of the Regulation is whether the direct family member's first residence with the SS sponsor in the EU has been in the EEA state that the SS sponsor is exercising treaty rights in.
e) Unusually, it seems to me that Paragraph 2 of the
transitory provisions states that SS applications made before 25th November (when the new provisions come into effect), but not decided by that date, will be assessed according to the new provisions. I can imagine that that is going to run into deep legal waters. I am fairly certain that this will be the first provision to be questioned and thrown out by the courts.
The rest of the provisions seem to be a tidying up exercise of renumbering provisions. If I am correct in my assessment, can I request the moderators to rename the thread so as to highlight its applicability to the SS route?
I wonder if it is a mere coincidence that these Regulations have come out on the same day as when the Government lost in the High Court about triggering Article 50. Perhaps it wants to demonstrate that delinking EU law from UK law is already in progress.
A question for the lawyers on these forums: Assuming that appeals reach the courts after May next year, when the Government has said that it will introduce the Great Repeal Bill into Parliament, can the government argue in court that the question of EU law applying is moot (in the American sense of the word) as the delinking is being debated in Parliament?
I am fairly certain that I will be corrected in very short order if I am wrong in my observations, but
Obie, can I request you to keep a civil tone, no matter how outraged you are (as you undoubtedly will be)?
Also see
this blog post on the Freedom of Movement blog.
I am not a lawyer or immigration advisor. My statements/comments do not constitute legal advice. E&OE. Please do not PM me for advice.
