Significant portion of Regulation 9 ruled unlawful

[Obie]

The Home Office has decided to bring new laws from 25-11-2016.

Some of this laws like the Surinder Singh changes are designed to deliberately breach EU law.

It appears that the Court will be very busy.

The most immediate of the changes, is making it clear that Extended Family members have no appeal rights, that is from the 25-11-2016.

Surinder Singh changes also coming into place on the 25-11-2016.

New definition of marriage of convenience provision, which also violates EU law.

The court will simply have to set these provisions aside.


http://www.legislation.gov.uk/uksi/2016/1052/made

[secret.simon]

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.

[zahmed05]

Will parents be treated as extended family member or direct family member. My understanding is that parents will still be able to do SS if they meet new requirements. Is that correct?

Regards,
Zeeshan

[secret.simon]

Parents who have proved dependency are direct family members, not extended family members.

But it is not improbable that the Home Office may tighten the requirements for proving dependency.

Also, as you can see in the new Regulation, the requirements for the genuineness of the EEA residency have been laid out in much more detail and the period of residency has been explicitly stated as a factor in determining genuineness. So, somebody who resided in Germany for 10 years would have a better chance of the SS route as compared to somebody popping over to Ireland for four months.

A crucial difference between the new Regulation and conventional EU legal interpretation is that the latter do not look at intent (so for instance, the government should not look at why parents choose dependency even if they have their own resources or why the SS sponsor is exercising treaty rights in an EEA state), while the former does. That is why a large chunk of Regulation 9 will likely be thrown out by the courts.

[alphagear]

Does this mean out of country appeals for all including refusals under centre of life etc?

About self sufficient, does british citizens need csi in the UK too when they have returned? or just for spouse?

[noajthan]

This topic is not for random questions on SS route etc.

Topic: NEW EEA Regulation that violates EU law coming into effect

[mak35]

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.

Hi there,
I do not understand this point please can someone elaborate a bit more here. What does it mean by direct family member's first residence with SS sponsor and if it is the first residence with SS sponsor then is it a positive or negative thing to have.

I have been exercising my treaty rights in Germany since June 2016.
Me and my parents arrived in Germany on 20th May. I travelled from UK and they travelled from Pakistan on the same day.
We got registered together on 1st June. In the month of June based on my UK Ltd company work in Germany I applied for their residence and they were issued with 5 year RC on the spot (of course RC came later on)

When I was living in UK they had regularly visited me in the last 10-15 years. But we moved to Germany together, got registered together and have been living in the same property together since June. They also have their health insurances, bank statements, couple of bills on their names.

That was just a background but I don't understand if this is counted as their first residence with SS sponsor in EU and whether it is seen as a positive or negative thing?

[anvish]

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.

Hi
I think the TRANSITORY PROVISIONS changes only affect made on or after 25th November 2016?

2. Between the coming into force of the provisions covered by regulation 1(2)(a) and the coming into force of the remaining provisions covered by regulation 1(2)(b) an application under the 2006 Regulations for—

(a)an EEA family permit;
(b)a registration certificate;
(c)a residence card;
(d)a document certifying permanent residence;
(e)a permanent residence card; or
(f)a derivative residence card;
made but not determined before 25th November 2016 is to be treated as having been made under the 2006 Regulations, as amended by paragraph 1 of this Schedule.

thanks

[noajthan]

... made but not determined before 25th November 2016 is to be treated as having been made under the 2006 Regulations, as amended by paragraph 1 of this Schedule.

thanks

But note the sting in the tail

[noajthan]

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.

...

Also see this blog post on the Freedom of Movement blog.

Puzzling.
The new Regulation 9(7) seems to ignore case law of Eind(C-291/05) if it means and expects BC sponsor to be continuing to exercise treaty rights on return to UK ( )

[secret.simon]

I think the TRANSITORY PROVISIONS changes only affect made on or after25th November 2016?

2. Between the coming into force of the provisions covered by regulation 1(2)(a) and the coming into force of the remaining provisions covered by regulation 1(2)(b) an application under the 2006 Regulations for—

(a)an EEA family permit;
(b)a registration certificate;
(c)a residence card;
(d)a document certifying permanent residence;
(e)a permanent residence card; or
(f)a derivative residence card;
made but not determined before 25th November 2016 is to be treated as having been made under the 2006 Regulations, as amended by paragraph 1 of this Schedule.

Not as per my plain English reading. Let me translate that quote a little bit, the way I understand it.

2. Between [25th November 2016 and 1st February 2017] an application under the 2006 Regulations for [a document under the EEA Regulations]
made but not determined before 25th November 2016 is to be treated as having been made under the 2006 Regulations, as amended by paragraph 1 of this Schedule.

So, any SS application made before 25th November, but not decided by that date, would be decided by paragraph 1. If you read it up, paragraph 1 is identical to the new Regulation 9.

So, all the HO has to do (and may already have planned on doing) is sit on all SS applications till 25th November and then apply the new SS regulations.

Remember that I am not a lawyer and I am sure that they would correct me (in pretty sharpish language) if I am far wrong.

[secret.simon]

The new Regulation 9(7) seems to ignore Eind if it means and expects BC sponsor to be continuing to exercise treaty rights on return to UK.

Actually it is the other way around. It actually implements Eind directly and explicitly into the Regulations.

(7) For the purposes of determining whether, when treating the BC as an EEA national under these Regulations in accordance with paragraph (1), BC would be a qualified person—
(a) any requirement to have comprehensive sickness insurance cover in the United Kingdom still applies, save that it does not require the cover to extend to BC;
(b) in assessing whether BC can continue to be treated as a worker under regulation 6(2)(b) or (c), BC is not required to satisfy condition A;
(c) in assessing whether BC can be treated as a jobseeker as defined in regulation 6(1), BC is not required to satisfy conditions A and, where it would otherwise be relevant, condition C.

The conditions for EEA Citizens to be a qualified person are listed in Regulation 6, from Paragraph 5 onwards.

[noajthan]

The new Regulation 9(7) seems to ignore Eind if it means and expects BC sponsor to be continuing to exercise treaty rights on return to UK.

Actually it is the other way around. It actually implements Eind directly and explicitly into the Regulations.

(7) For the purposes of determining whether, when treating the BC as an EEA national under these Regulations in accordance with paragraph (1), BC would be a qualified person—
(a) any requirement to have comprehensive sickness insurance cover in the United Kingdom still applies, save that it does not require the cover to extend to BC;
(b) in assessing whether BC can continue to be treated as a worker under regulation 6(2)(b) or (c), BC is not required to satisfy condition A;
(c) in assessing whether BC can be treated as a jobseeker as defined in regulation 6(1), BC is not required to satisfy conditions A and, where it would otherwise be relevant, condition C.

The conditions for EEA Citizens to be a qualified person are listed in Regulation 6, from Paragraph 5 onwards.

But Simon, as per Eind, my understanding is there is no need for a BC to exercise treaty rights at all (on their eventual return to Blighty) so no concessions should be required.
By virtue of Eind being a QP is simply out of scope for a BC. So they don't need to be QPs with a concession on CSI (etc) applied.
All they need to do (currently) is return and simply reside in UK keeping any absences within limits.

[mkhan2525]

More details on why the Home Office is introducing these changes.

http://www.legislation.gov.uk/uksi/2016 ... 052_en.pdf

[MrSlyFox]

Under the new regulation Nine: Introduced under the 2016 act which will apply from the 25th of November. The factors relevant to determine genuine residence - section 9. Subsection 3.

(a) whether the centre of BC’s life transferred to the EEA State;
(b) the length of F and BC’s joint residence in the EEA State;
(c) the nature and quality of the F and BC’s accommodation in the EEA State, and whether it
is or was BC’s principal residence;
(d) the degree of F and BC’s integration in the EEA State;
(e) whether F’s first lawful residence in the EU with BC was in the EEA State.

What do people think will meet these "factors" they appear very vague to me such as - (e) whether F’s first lawful residence in the EU with BC was in the EEA State.

Would it be seen as an attempt to avoid the UK domestic legalisation by first residing in the UK prior to moving with the family member to a EU State if that family member for example was subject to immigration control i.e. a student for example?

Presumably, it should say instead [first residence in the EEA be in the EEA state] as not all EEA states are in the EU?

[anvish]

(b)the length of F and BC’s joint residence in the EEA State;


(e)whether F’s first lawful residence in the EU with BC was in the EEA State.

what is this mean?

Me( British Citizen) and my wife resided in Ireland for 1 year and I worked there for 9 months
and her ( family member - my wife) first EU residence was in Ireland (EEA State)
Is it long enough for RC ?

Thanks

[manicminer]

(b)the length of F and BC’s joint residence in the EEA State;


(e)whether F’s first lawful residence in the EU with BC was in the EEA State.

what is this mean?

Me( British Citizen) and my wife resided in Ireland for 1 year and I worked there for 9 months
and her ( family member - my wife) first EU residence was in Ireland (EEA State)
Is it long enough for RC ?

Thanks

Yes, legally, at least on the basis of what you've said. In practice, it will depend on the case officer who processes your application. Have your paperwork checked before you apply.

[manicminer]

The new rules seem to be the implementation 'in-print' of how FP and RC applications have been getting assessed for quite some time.

Now they are assessing the quality of a resident's accommodation...

[anvish]

(b)the length of F and BC’s joint residence in the EEA State;


(e)whether F’s first lawful residence in the EU with BC was in the EEA State.

what is this mean?

Me( British Citizen) and my wife resided in Ireland for 1 year and I worked there for 9 months
and her ( family member - my wife) first EU residence was in Ireland (EEA State)
Is it long enough for RC ?

Thanks

Yes, legally, at least on the basis of what you've said. In practice, it will depend on the case officer who processes your application. Have your paperwork checked before you apply.

Already applied in 2016 july.. got COA with work Waiting for RC...I did send All Doc's including Bank statements, payslips,tax p60 + tax credit certificate , tenancy doc's, GP letters and Doc's, ireland RC card 6 year one ( normally it's 5 year), and passports, family permit etc

[alphagear]

when do out of country appeals apply to eea applications?

[Dirk]

In reality the caseworkers seem to have been working to these rules for a while now, they are finally spelling out what they have been doing (perhaps the Gina Miller High Court ruling did teach them something about the rule of law).

From the SS Facebook groups I have noticed that a lot of people who just copy the "SS for beginners" template ie move from the UK to Ireland and work for 91 days then apply for a FP (which isnt even needed) come back to Britain and get rejected for two reasons, COL and "circumventing national immigration rules" tucked into the Regulation 9 refusal. I repeatedly try to tell them that they should not appear to be simply following a guide from the internet but try to make a life for themselves in Ireland before a change of plans makes them move to the UK, tailor their applications to themselves and not be arrogant by using covering letters but it doesn't seem to sink in. Whether the HO is acting rightly or wrongly being blatantly obvious with them will decrease your chances and increase the chance of having to spend a grand and wait 2 years for a tribunal decision which will probably go their way but why waste all that money and time when you can get an RC in about 5 months by doing a more thorough application.

I often tell people that travelling from ROI to the UK does not need a FP, if you have trouble boarding a flight or ferry which you probably wont then go via Belfast. It seems the people who chose this route are more successful than those who apply for a FP. The HO also seems to know this which is why they are abolishing the lower tier tribunal effectively meaning you have to go straight to defacto Judicial Review and threatening the end of in country appeals to deter use of the Common Travel Area without an FP or Irish RC.

If someone's UK visa runs out and they go back to say Tunisia, apply for an Irish C visa (tourist, surely D settlement would be more convincing), then stay with their partner who does childminding for 3 months before going to the UK does not look Centre of Life was genuine and they can claim avoiding UK Immigration was the reason not a genuine desire to live in Ireland.

A couple moving from a non EEA state to one which is not so close to the UK, perhaps claiming family links or a community of people from the non EEA's home country, getting the RC, doing a language course then moving the UK at a natural point like the end of the fixed term employment countract is hard to refute even if it was all planned in advance for the purpose of avoiding the marriage visa.

[alphagear]

When does the out of country appeal take effect for eea applications?

[Petaltop]

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.

Isn't this the same as they did when they ended the '14 year illegal for ILR'? It ended for all applications not granted before that date?

[secret.simon]

Also see this post about a new requirement to use the prescribed Home Office forms for applying for EEA Route documentation.

[DFDS.]

The Home Office has decided to bring new laws from 25-11-2016.

Some of this laws like the Surinder Singh changes are designed to deliberately breach EU law.

It appears that the Court will be very busy.

The most immediate of the changes, is making it clear that Extended Family members have no appeal rights, that is from the 25-11-2016.

Surinder Singh changes also coming into place on the 25-11-2016.

New definition of marriage of convenience provision, which also violates EU law.

The court will simply have to set these provisions aside.


http://www.legislation.gov.uk/uksi/2016/1052/made