!!! The Home Office can deport you if you fail your DCPR

[rooibos]

I don't know if this has been reported here before. If so, apologies.

As outlined in this excellent article:
https://www.freemovement.org.uk/briefin ... tizens-uk/

Under new regulations which came into force on 1 February 2017, the Immigration (European Economic Area) Regulations 2016:
http://www.legislation.gov.uk/uksi/2016/1052/made
the Home Office has acquired controversial new enforcement powers against EU citizens.

I skip to the relevant part but you should read the whole article.

Paragraph 23(6) confers on the Home Office the unfettered power to remove a person the Home Office considers does not have a right of residence under the regulations (note use of word “or” between (b) and (c), meaning each power exists independently of the others):

Exclusion and removal from the United Kingdom

23.—(1) A person is not entitled to be admitted to the United Kingdom by virtue of regulation 11 if a refusal to admit that person is justified on grounds of public policy, public security or public health in accordance with regulation 27.

(2) A person is not entitled to be admitted to the United Kingdom by virtue of regulation 11 if that person is subject to a deportation or exclusion order, except where the person is temporarily admitted pursuant to regulation 41.

(3) A person is not entitled to be admitted to the United Kingdom by virtue of regulation 11 if the Secretary of State considers there to be reasonable grounds to suspect that the person’s admission would lead to the misuse of a right to reside under regulation 26(1).

(4) A person is not entitled to be admitted to the United Kingdom as the family member of an EEA national under regulation 11(2) unless, at the time of arrival—

(a)that person is accompanying the EEA national or joining the EEA national in the United Kingdom; and

(b)the EEA national has a right to reside.

(5) If the Secretary of State considers that the exclusion of the EEA national or the family member of an EEA national is justified on the grounds of public policy, public security or public health in accordance with regulation 27 the Secretary of State may make an order prohibiting that person from entering the United Kingdom.

(6) Subject to paragraphs (7) and (8), an EEA national who has entered the United Kingdom or the family member of such a national who has entered the United Kingdom may be removed if—

(a)that person does not have or ceases to have a right to reside under these Regulations;

(b)the Secretary of State has decided that the person’s removal is justified on grounds of public policy, public security or public health in accordance with regulation 27; or

(c)the Secretary of State has decided that the person’s removal is justified on grounds of misuse of rights under regulation 26(3).

(7) A person must not be removed under paragraph (6)—

(a)as the automatic consequence of having recourse to the social assistance system of the United Kingdom; or

(b)if that person has leave to remain in the United Kingdom under the 1971 Act unless that person’s removal is justified on the grounds of public policy, public security or public health in accordance with regulation 27.

(8) A decision under paragraph (6)(b) must state that upon execution of any deportation order arising from that decision, the person against whom the order was made is prohibited from entering the United Kingdom—

(a)until the order is revoked; or

(b)for the period specified in the order.

(9) A decision taken under paragraph (6)(b) or (c) has the effect of terminating any right to reside otherwise enjoyed by the individual concerned.

Now comes the worrying part. From the article:

Example
Martin applies for a permanent residence certificate. He has been resident in the UK for 20 years as the spouse of a British national. He has never worked or been a qualified person continuously for five years because he does not have private comprehensive sickness insurance so has never acquired permanent residence.

His application is rejected by the Home Office. Under the new regulations he can be removed immediately as a person with no right to reside and who is therefore (in the opinion of the Home Office) unlawfully present in the UK. This could be enforced with a dawn raid and detention at an immigration detention centre pending departure.

In an newly updated policy document entitled Removals and revocations of EEA nationals:
https://www.gov.uk/government/uploads/s ... 2_0EXT.pdf
the Home Office makes plain that a person with no right of residence under Directive 2004/38/EC can (and perhaps should) be removed from the UK.

Ceased to have a right to reside
Examples of where a person may cease to have a right to reside are:
 EEA nationals without a permanent right of residence who cease to be a
qualified person because, for example they are no longer working in the UK
 EEA nationals who have had their EEA nationality renounced or revoked
 family members of EEA nationals who have divorced their spouse and have not
retained a right of residence
The regulations enable enforcement officers to take enforcement action against
those EEA nationals without a permanent right of residence who are not exercising
Treaty rights. Such that they cannot be considered a ‘qualified person’ and do not
benefit from the right to reside in the UK. Such individuals who are not in the UK
lawfully should be treated as if they were a person to whom section 10 of the
Immigration and Asylum Act 1999 applies.

I wanted to post this as a word of warning to those who apply for a DCPR and are not 100% sure if they have exercised treaty rights. Whether the HO will want to implement it to the letter we don't know, but it is safe to assume the worst, given the very hostile political scenario, and I'm using an understatement. Watch this space.

[mhamdsamy]

yea scary part

[secret.simon]

The power is not as unfettered as initially mentioned. Regulation 23(6)(c) references the regulation below;

26.—(1) The misuse of a right to reside occurs where a person—

• (a) observes the requirements of these Regulations in circumstances which do not achieve the purpose of these Regulations (as determined by reference to Council Directive 2004/38/EC(1) and the EU Treaties); and
  (b) intends to obtain an advantage from these Regulations by engaging in conduct which artificially creates the conditions required to satisfy the criteria set out in these Regulations.

(2) Such misuse includes attempting to enter the United Kingdom within 12 months of being removed under regulation 23(6)(a), where the person attempting to do so is unable to provide evidence that, upon re-entry to the United Kingdom, the conditions for a right to reside, other than the initial right of residence under regulation 13, will be met.
(3) The Secretary of State may take an EEA decision on the grounds of misuse of rights where there are reasonable grounds to suspect the misuse of a right to reside and it is proportionate to do so.
...

So there are already two justiciable tests there
a) that there are reasonable grounds to suspect the misuse of a right to reside.
b) that it is proportionate to remove the person from the UK

Both those points can be argued in court. So, it is not as blank a power as the article makes it out to be.

The language of this Regulation (about "artificially creates the conditions required to satisfy the criteria set out in these Regulations", for example) again seems to me to target the Surinder Singh route, rather than EEA citizens themselves. Regulation 26(1)(a) does specifically reference the Treaties, such suggests that non-British EEA citizens ought not to come under its purview at all, as they have the right to be present in the UK, even if not resident, as the Freemovement article also notes.

[MrSlyFox]

The power is not as unfettered as initially mentioned. Regulation 23(6)(c) references the regulation below;

26.—(1) The misuse of a right to reside occurs where a person—

• (a) observes the requirements of these Regulations in circumstances which do not achieve the purpose of these Regulations (as determined by reference to Council Directive 2004/38/EC(1) and the EU Treaties); and
  (b) intends to obtain an advantage from these Regulations by engaging in conduct which artificially creates the conditions required to satisfy the criteria set out in these Regulations.

(2) Such misuse includes attempting to enter the United Kingdom within 12 months of being removed under regulation 23(6)(a), where the person attempting to do so is unable to provide evidence that, upon re-entry to the United Kingdom, the conditions for a right to reside, other than the initial right of residence under regulation 13, will be met.
(3) The Secretary of State may take an EEA decision on the grounds of misuse of rights where there are reasonable grounds to suspect the misuse of a right to reside and it is proportionate to do so.
...

So there are already two justiciable tests there
a) that there are reasonable grounds to suspect the misuse of a right to reside.
b) that it is proportionate to remove the person from the UK

Both those points can be argued in court. So, it is not as blank a power as the article makes it out to be.

The language of this Regulation (about "artificially creates the conditions required to satisfy the criteria set out in these Regulations", for example) again seems to me to target the Surinder Singh route, rather than EEA citizens themselves. Regulation 26(1)(a) does specifically reference the Treaties, such suggests that non-British EEA citizens ought not to come under its purview at all, as they have the right to be present in the UK, even if not resident, as the Freemovement article also notes.

I thought "artificially creates the conditions required to satisfy the criteria set out in these Regulations" it might be referring to EEA Nationals who use repeat cycles of leaving and reentering the UK to benefit from the three-month unconditional right-to-reside. Especially with the following part just bellow that point

(2) Such misuse includes attempting to enter the United Kingdom within 12 months of being removed under regulation 23(6)(a), where the person attempting to do so is unable to provide evidence that, upon re-entry to the United Kingdom, the conditions for a right to reside, other than the initial right of residence under regulation 13,

Because the regulations already have a section covering SS cases.

Family members of British citizens

9.— (4) This regulation does not apply—

(a)where the purpose of the residence in the EEA State was as a means for circumventing any immigration laws applying to non-EEA nationals to which F would otherwise be subject (such as any applicable requirement under the 1971 Act to have leave to enter or remain in the United Kingdom);

As the Home Office would deem such persons not have a right-to-reside under the EEA regulations they would be considered under the domestic legislation.

[secret.simon]

The way I read it, Regulation 9 limits the definition of SS, while Regulation 26 allows the Secretary of State to order deportation of people who applied for, but failed SS, by for example, trying to trigger it with a three months stay. They are allied, but not identical, provisions.

Why would people who apply under SS even be considered under domestic legislation? For starters, the requirements for say spouses or parents are completely different under SS and domestic legislation.

[MrSlyFox]

Why would people who apply under SS even be considered under domestic legislation? For starters, the requirements for say spouses or parents are completely different under SS and domestic legislation.

Sorry I worded it poorly, I meant If they applied for Residence documentation under SS, and are rejected. As a result of the decision that they do not have an EEA Right-to-reside virtue of SS they would be liable to be removed under the domestic legislation as a person who requires leave to remain in the UK and does not have it.