The EEA Regulations – summarising the latest changes

With Brexit looming, many Immigration solicitors have been looking to the future of Immigration in the UK, but it’s important to remember that for the moment, nothing has changed – as the publication of the latest amendments to the EEA Regulations on 24th July demonstrated. While EEA Immigration solicitors can’t say for certain how long the provisions will remain relevant – after all it remains to be seen what the final Brexit package looks like following ongoing negotiations, there are some positive changes worth noting, including the widened definition of ‘primary carer’, alongside other updates to ensure the UK remains compliant with EU legislation as interpreted by the Court of Justice of the European Union (CJEU).

It’s taken some time, but the EEA Regulations are finally updated to reflect the correct position regarding the Surinder Singh route for non-EU citizen partners of UK nationals to continue their family life in the UK. This is a vital component of the UK Immigration rules on family settlement. The update to the EEA Regulations followed the case of O and B which considered whether there was a distinction between an EU national travelling to the host member state to exercise Treaty rights under the free movement directive and an EU national travelling to strengthen family life, relying on Article 21 of the Treaty on the Functioning of the European Union. The CJEU said that there could be no distinction. As a result, the EEA Regulations have been updated to include 2 additional provisions to Surinder Singh. To benefit, someone seeking to rely on Surinder Singh must show that

- they were a family member of the UK national in another EEA state, and

- genuine family life was created or strengthened whole they lived in the host member state.

As a result of the CJEU’s ruling in the Chavez Vilchez case, the EEA Regulations now include a widened definition of ‘primary carer’. It’s an update that has been welcomed by those with an interest in the right to family life and Immigration case law. The definition of primary carer has extended to include a third country national who shares the care of an EU citizen even if the person they share care with has a right of residence in the UK. Previously, if care was shared with someone with those rights of residence such as another EU citizen, the third country national could not rely on derived rights under the EEA Regulations to remain in the UK.

Since 2010, the UK has taken the view that a self-employed worker who is unable to work loses his or her status as a self-employed person and so if that person is an EU national in the UK, they will no longer be exercising Treaty rights. Following the Irish reference to the CJEU in the Gusa case, the EEA Regulations have been updated to recognise the position that self-employed workers should retain their status for at least 6 months. Someone who has been self-employed for at east a year before they had to stop working can retain their self-employed status for a longer period provided they are actively looking for work and have a genuine chance of finding work in the future. You can read more about this change here.

Another update to the EEA Regulations welcomed by London immigration solicitors is confirmation that an EU citizen with dual nationality who acquires British Citizenship will retain their EU rights after naturalisation. The key benefit of this that EEA Immigration solicitors will recognise is that naturalised EU nationals can sponsor third country family members under EU rules rather than the more restrictive UK Immigration rules. Essentially, this will give those with dual nationality more options beyond the Surinder Singh route and has important implications as Brexit approaches. Read our blog to find out more about how this will work in practice.

The EEA Regulations have been amended so that individuals subject to an exclusion order or deportation order under EU law and the EEA Regulations – rather than under UK Immigration rules – do not have

- a right of admission

- an initial right of residence

- an extended right of residence, or

- a permanent right of residence.

Anyone who is the subject of an exclusion order or deportation order who applies for a family permit or residence document will find that their application will be deemed invalid.

An EEA national resident in the UK for 10 years before being made the subject of a deportation order must have acquired permanent residence before being able to benefit from the enhanced protections against expulsion contained in the free movement directive and transposed into UK law through the EEA Regulations.

Additional minor amendments have been included in the EEA Regulations, including the provision of EEA family permits in electronic form and further details about when someone must be outside the UK to bring an EEA appeal.