Following our post on the changes to the Immigration (European Economic Area) Regulations 2006 which govern Rights of Residence and Free Movement, we are now publishing details of the other key changes.
These offer some important clarification, for example with regard to residence rights which attach to the family members of persons who themselves have a permanent right of residence. It will also be important to note some of the more restrictive changes, such as the fact that family members of an EEA national who wish to assert a right of appeal must produce evidence of identity and nationality.
The changes are summarised as follows:
1) Amendments reflecting operational practice or to implement agreements reached with the European Commission and/or stakeholders in relation to the UK”s implementation of the Directive
- Regulation 2 has been amended to make it clear that a person will not be regarded as the spouse, civil partner or durable partner of another person for the purposes of the Regulations where another spouse, civil partner or durable partner of either person is already present in the UK.
- Regulation 10 has been amended to clarify that a person with a permanent right of residence can also be a person in relation to whom a family member can assert a retained right of residence.
- Regulation 12 will now enable a person with a retained right of residence to be able to obtain an EEA family permit.
2) Extending Public Policy, Public Health, Public Security Refusal Powers
The following changes to the Regulations have been made with regards the Secretary of State”s powers of refusal on the basis of public policy, public health and public security;
- New regulation 20A reflects the power in the Directive for the Secretary of State to cancel a right to reside on public health, public policy or public security grounds where that individual has not applied for documentation confirming their right to reside and where it is not possible to remove that person from the UK.
- Regulation 24 will now make clear that EEA nationals and their family members will not be detained unless for reasons of public policy, public health or public security.
- Regulations 13, 14 and 15 are amended to reflect the power in the Directive to deny the actual right of residence a person has under the Directive where the Secretary of State is denying documentation on grounds of public policy, public health or public security.
3) Amendment to Appeal Rights
The following changes have been made to the regulations which affect appeal rights against EEA decisions;
- New regulation 15B provides for a right of residence to continue while an appeal against certain decisions made under the Regulations could be brought or is pending.
- Regulation 26 has been amended to require a direct family member or an extended family member of an EEA national wishing to assert a right of appeal to produce evidence of identity and nationality. It is also amended to confirm the right of appeal for family members with a retained right of residence.
- Regulation 27 has been amended so that the provision concerning the certification of asylum and human rights claims reflect the approach in the Nationality, Immigration and Asylum Act 2002. Regulation 27 is also amended so as to prevent persons outside the UK from being able to enter the UK solely to bring an appeal against a documentation decision.
- Regulation 25 has been amended to delete the definitions of the “Human Rights Convention” and the “Refugee Convention” and replace these with “human rights claim” and “asylum claim” as a result.