The Immigration (European Economic Area) Regulations 2016

Part 1 (preliminary: regulations 1 to 10) defines the scope of these Regulations and the terms used throughout. A new definition of civil partnerships, marriages and durable partnerships of convenience features in regulation 2(1) (general interpretation). These terms were not defined in the 2006 Regulations.

Regulation 9 contains an exception to the principle that these Regulations do not apply to British citizens. Where a British citizen has exercised any rights under Directive 2004/38/EC to reside in another EEA State with a family member who is not also a citizen of an EEA State, in certain circumstances these Regulations will confer a right to reside on those family members upon their return to the United Kingdom with the British citizen. The new regulation 9 contains a requirement for such residence in another EEA State to be “genuine” in order for these Regulations to apply to a British citizen and any family members upon return to the United Kingdom. Regulation 9(3) contains indicative criteria as to the factors to be considered by the Secretary of State when determining whether residence in another EEA State was “genuine”. Regulation 9(4) provides that the regulation is of no application in circumstances where the purpose of the residence of the British citizen in the other EEA State was as a route to circumvent any applicable requirement for any non-EEA family members to have leave to enter or remain in the United Kingdom under the Immigration Act 1971. This gives further effect to the CJEU’s judgment in Case C-456/12 O & B (ECLI:EU:C:2014:135). Regulation 9(7) applies adjustments to the conditions for being a qualified person where, for the purposes of regulation 9(1), it is a British citizen who needs to satisfy those conditions.

Part 2 (EEA rights: regulations 11 to 16) sets out the rights to admission and to reside conferred on EEA nationals, their family members and those with derivative rights to reside,

Part 3 (residence documentation: regulations 17 to 22) provides for the issue of residence documentation to those who satisfy the conditions in Part 2. A new regulation 21 permits the Secretary of State to require applications for residence documentation under these Regulations to be made using a specified application form, or pursuant to a particular process. Regulation 21(3) requires an applicant for a residence card or derivative residence card to make the application from within the United Kingdom.

Part 4 (refusal of admission and removal etc.: regulations 23 to 28) provides for the exclusion and removal of EEA nationals and their family members. It is based on the approach adopted by Part 4 of the 2006 Regulations with the addition of a requirement in regulation 27(8) for a court or tribunal to have regard to a new Schedule 1 when they consider whether the requirements of regulation 27 are met. Paragraph 1 of Schedule 1 reflects the margin of appreciation enjoyed by member States to determine their own requirements of public policy and public security, tailored to their own purposes, from time to time (Case 41/74 Van DuynECLI:EU:C:1974:133). Paragraph 2 onwards of Schedule 1 defines, in terms specific to the United Kingdom, considerations applying to a court or tribunal’s consideration of whether there are grounds of public policy or public security in an individual case, or whether one of the fundamental interests of society (as defined in paragraph 8 of Schedule 1) are affected.

Part 5 (procedure in relation to EEA decisions: regulations 29 to 34) makes provision for the admission and control of those seeking to enter or reside in the United Kingdom under these Regulations.

Parts 6 (appeals under these regulations: regulations 35 to 42) and 7 (general: regulations 43 to 46) are based upon the corresponding Parts of the 2006 Regulations and concern appeals under these Regulations and general matters respectively. Schedule 2 deals with the effect of appeals made under Part 6.

These Regulations come into force on 1st February 2017, subject to transitional provisions, except for regulation 44 and Schedule 5, which come into force on 25th November 2016. Schedule 5 replaces regulation 9 of the 2006 Regulations with a new regulation that mirrors regulation 9 of these Regulations. This change to the 2006 Regulation will apply to all decisions on applications made under those Regulations on or after 25th November 2016, irrespective of whether the application was made prior to Schedule 5 coming into force. This transitory provision aims to bring in the new approach to family members of British citizens as soon as possible.

Part 1 of Schedule 4 revokes the 2006 Regulations subject to the savings and modifications in Part 2 of that Schedule.

The remainder of these Regulations (Schedules 3 and 6) deals with matters consequential to the above changes.

These Regulations extend to the whole of the United Kingdom.

An impact assessment has not been produced for these Regulations as no impact on businesses, charities, voluntary bodies or the public sector is foreseen.

Footnotes

[^f00001]: S.I. 2000/1813.

[^f00002]: 1972 c. 68.

[^f00003]: 2002 c. 41.

[^f00004]: 1971 c. 77.

[^f00005]: 1999 c. 33.

[^f00006]: S.I. 2006/1003 as amended by the Immigration Act 2014 (c. 22), Schedule 1, paragraph 2(5), and S.I. 2006/3317, 2009/1117, 2010/21, 708, 1593, 2011/544, 1247, 2012/1547, 1809, 2560, 2013/1391, 1460, 3032, 2014/1451, 1976, 2761, and 2015/694.

[^f00007]: The relevant part of section 33(1) was amended by the British Nationality Act 1981(c. 61), Schedule 4, paragraph 2, and the Immigration Act 1988 (c. 14), the Schedule, paragraph 5.

[^f00008]: OJ No L 158, 30.4.04, p98.

[^f00009]: Section 11 was amended by the 2002 Act, section 62(8), and S.I 1993/1813 and 2003/1016.

[^f00010]: OJ No C326, 26.10.12, p65.

[^f00011]: OJ No C326, 26.10.12, p67.

[^f00012]: OJ No L 141, 27.5.2011, p3.

[^f00013]: Section 2 was amended by the British Nationality Act 1981, section 39(2), and the Immigration Act 1988, section 3(3).

[^f00014]: Section 8 was amended by the British Nationality Act 1981, section 39(4) and Schedule 4, paragraphs 2 and 5, the Immigration Act 1988 , section 4, the 1999 Act, section 6, the Statute Law (Repeals) Act 1995 (c. 44), Schedule 1, PartII and the Immigration Act 2016 (c. 19), section 76(1).

[^f00015]: S.I. 1972/1613 was made under section 8(2) of the 1971 Act and has been amended by S.I. 1972/1613, 1975/617, 1977/693, 1982/1649, 1985/1809, 1997/1402, 2207, 2004/3171 and 2015/1866.

[^f00016]: OJ No. L 158, 30.4.04, p77.

[^f00017]: Treaty Series No. 44 (1992) Cmd 1976 at http://treaties.fco.gov.uk/docs/pdf/1992/TS0044.pdf.

[^f00018]: S.I. 2010/659.

[^f00019]: The relevant parts of Schedule 2 were amended by the Criminal Justice Act 1972 (c. 71), Schedule 6, the British Nationality Act 1981, Schedule 4, paragraphs 2 and 3, the Immigration Act 1988, the Schedule, paragraphs 6, 8, 9 and 10, the Asylum and Immigration Act 1996 (c. 49), Schedule 2, paragraphs 5, 7, 10 and 11 and Schedule 4, the Access to Justice Act 1999 (c. 22), Schedule 13, paragraph 70, the 1999 Act, section 140, Schedule 14, paragraphs 43, 56, 58 to 63 and Schedule 16, the 2002 Act, sections 63, 64 and 73, and Schedule 7, paragraphs 3 and 4, the Courts Act 2003 (c. 39), Schedule 8, paragraph 149, the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (c. 19), Schedule 2, paragraph 1, the Immigration, Asylum and Nationality Act 2006 (c. 13), sections 27 and 42 and Schedule 3, the Immigration Act 2014, sections 5, 7, 9 and 13, Schedule 1, paragraphs 1 and 2, Schedule 2, paragraphs 1 and Schedule 8, paragraphs 1, 2 and 3, the Immigration Act 2016, sections 46 and 60, and S.I. 2010/21, Schedule 1, paragraphs 1 and 2.

[^f00020]: The relevant parts of Schedule 2 were amended by the Criminal Justice Act 1972, Schedule 6, the British Nationality Act 1981, Schedule 4, paragraph 3(1), the Immigration Act 1988, section 10 and the Schedule, paragraphs 6, 9 and 10, the Asylum and Immigration Act 1996, section 12, Schedule 2, paragraphs 7, 8, 10 and 11 and Schedule 4, the Access to Justice Act 1999, Schedule 13, paragraph 70, the 1999 Act, sections 140 and 169, Schedule 14, paragraphs 43, 60, 62 and 63, and Schedule 16, the 2002 Act, sections 63, 64 and 73, and Schedule 7, paragraphs 3 and 4, the Courts Act 2003, Schedule 8, paragraph 149, the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, Schedule 2, paragraph 1, the Immigration, Asylum and Nationality Act 2006, section 42, the Immigration Act 2014, sections 4, 5, 7, 12(4), 13, and 73(6), Schedule 1, paragraphs 1 and 2(1), Schedule 2, paragraphs 1 and 4, and Schedule 9, paragraph 1, the Immigration Act 2016, sections 5, 9 and 60, and S.I. 2010/21, Schedule 1, paragraphs 1 and 2.

[^f00021]: Section 10(1) was amended by the Immigration Act 2014, section 1.

[^f00022]: Section 3(5)(a) was amended by the 1999 Act, Schedule 14, paragraphs 43 and 44.

[^f00023]: Section 5 was amended by British Nationality Act 1981, Schedule 4, paragraph 2, the Immigration Act 1988, Schedule, paragraph 2, the Asylum and Immigration Act 1996, Schedule 2, paragraph 2 and the Civil Partnership Act 2004 (c. 33), Schedule 27, paragraph 37.

[^f00024]: Schedule 3 was amended by the Criminal Justice Act 1982 (c. 48), Schedule 10, paragraphs 1 and 2, the Immigration Act 1988, Schedule 10, paragraph 10, the Asylum and Immigration Act 1996, Schedule 2, paragraph 13, the 1999 Act, section 54 and Schedule 14, paragraphs 43 and 68, the 2002 Act, Schedule 7, paragraphs 7 and 8, the Courts Act 2003, Schedule 8, paragraph 150 and Schedule 10, the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, section 34, the Immigration, Asylum and Nationality Act 2006, section 53, the Immigration Act 2014, Schedule 1, paragraph 2(2), and Schedule 9, paragraphs 9, 20 and 24, and the Immigration Act 2016, section 60.

[^f00025]: 1998 c. 42; section 6 was amended by the Constitutional Reform Act 2005 (c. 4), section 40, Schedule 9, paragraph 66, and Schedule 18, Part 5.

[^f00026]: 1997 c. 68.

[^f00027]: Section 82(1) was amended by the Immigration Act 2014, section 15.

[^f00028]: Section 2 was amended by the 2002 Act, Schedule 7, paragraph 20, the Immigration, Asylum and Nationality Act 2006, Schedule 1, paragraph 14, and the Immigration Act 2014, Schedule 9, paragraph 26.

[^f00029]: Section 97A was inserted by the Immigration, Asylum and Nationality Act 2006, section 7 and amended by the Crime and Courts Act 2013 (c. 22), section 54 and the Immigration Act 2014, Schedule 9, paragraph 43.

[^f00031]: Section 84 was amended by the Immigration Act 2014 (“the 2014 Act”), section 15.

[^f00032]: Section 85 was amended by the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, section 26(7) and Schedule 2, paragraphs 16 and 18, and the 2014 Act, section 15 and Schedule 9, paragraphs 30 and 34.

[^f00033]: Section 120 was amended by the 2014 Act, Schedule 9, paragraphs 30 and 55.

[^f00034]: Section 86 was amended by the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, section 26(7) and Schedule 2, paragraphs 16 and 18, and the 2014 Act, section 15 and Schedule 9, paragraphs 30 and 36.

[^f00035]: Section 105 was amended by the 2014 Act, Schedule 9, paragraphs 30 and 48.

[^f00036]: Section 106 was amended by the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, section 26(7), Schedule 2, paragraphs 16 and 21,and Schedule 4, the 2014 Act, Schedule 9, paragraphs 30 and 49(b), and S.I. 2010/21, Schedule 1, paragraphs 20 and 27.

[^f00037]: Section 92(3) was amended by the 2014 Act, section 17.

[^f00038]: Section 96(2) was amended by the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, section 30, and the 2014 Act, Schedule 9, paragraphs 30 and 41.

[^f00039]: 2007 c. 15.

[^f00040]: Section 40(1)(b) was amended by the 2002 Act, Schedule 8, paragraphs 1 and 13.

[^f00041]: S.I. 2000/2326, amended by S.I. 2001/865, 2003/549, 3188, 2005/47 and 671.

[^f00042]: The following regulations, and paragraphs of those regulations, in the 2006 Regulations have corresponding regulations and paragraphs in these Regulations: regulation 5 (“worker or self-employed person who has ceased activity”), regulation 7 (“family member”), regulation 10 (“family member who has retained the right of residence”), and regulation 13 (initial right of residence).