Is the new Law on evidencing PR status lawful

New Regulation is coming into effect on the 12-11-2015, requiring EEA national and their family member to evidence the Right of PR by means of a document issued by the Secretary of State.

This Regulation seem on the face, to have been effected in total ignorance and in complete disregard to EU law, which is binding on the UK, and the UK has failed to undertake a proper impact assessment before enforcing it.

In fact no impact assessment was undertaken, as the government conveniently concluded that there will be no impact.

It is painful to see that the UK is essentially having disregard to the rule of law.

It is unclear aswell, whether this new regulation means that the 1 year without restriction on an applicant's stay in the UK, will commence from the date of issue of this PR document. That again will be a second Breach of EU law.

1. In Micheletti the court said the following.

10 Under international law, it is for each Member State, having due regard to Community law, to lay down the conditions for the acquisition and loss of nationality. However, it is not permissible for the legislation of a Member State to restrict the effects of the grant of the nationality of another Member State by imposing an additional condition for recognition of that nationality with a view to the exercise of the fundamental freedoms provided for in the Treaty.

2. Article 25 of Directive 2004/38EC states:

1. Possession of a registration certificate as referred to in Article 8, of a document certifying permanent residence, of a certificate attesting submission of an application for a family member residence card, of a residence card or of a permanent residence card, may under no circumstances be made a precondition for the exercise of a right or the completion of an administrative formality, as entitlement to rights may be attested by any other means of proof.

Below is what the regulation states :

“(1A) Where the applicant is relying upon a right of permanent residence in the United Kingdom by virtue of an enforceable EU right or any provision made under section 2(2) of the European Communities Act 1972 to satisfy the requirement in paragraph 3(c) of Schedule 1 to the Act(11), the information showing freedom from immigration restrictions mentioned in sub-paragraph (1) must be in the form of—

(a)

a permanent residence card,
.

(b)

a document certifying permanent residence,
.

(c)

a residence document issued under the Immigration (European Economic Area) Regulations 2000 which is endorsed under the immigration rules to show permission to remain in the United Kingdom indefinitely, or
.

(d)

a residence permit issued under the Immigration (European Economic Area) Regulations 2000 which is endorsed under the immigration rules to show permission to remain in the United Kingdom indefinitely.”.

Memberstate are free to set out their citizenship law, they can set character requirement, but they cannot legislate in breach or ignorance of EU law.

In this case, an EU national is been told that their PR status will not be recognised unless and until they have a document certifying the existence, when that document is issued under EU law, and its purposes to only confirm the existence and not confer a right.

This seems like an unlawful provision.

Obie wrote: This seems like an unlawful provision.

Not according to a solicitor.

"Of course under EU law the Home Office do have restrictions on their ability to tinker with the operation of the free movement provisions, but with respect to British citizenship they are not so constrained, and can really impose whatever conditions they like, within reason."


The UK already have this, where EEAs not married to a Brit have to wait another year to apply for British citizenship. They waitr 6 years instead of 5 years.

" in the case of an EEA national married to a British Citizen immediately apply for Citizenship, or in other cases wait for one year and then apply (the reason for this difference is linked to nationality law provisions)."

http://www.mcgillandco.co.uk/Blog/2015/ ... tizenship/



Not forgetting that those with ILR have to produce their ILR proof with their application for British Citizenship. They are not telling EEAs and their family members to do something that other immigrants don't have to do for citizenship of their country.

People are going to have to be really careful that they have been exercising free movement for a full 5 years as now the EEA Caseworking Team will be checking their claim of PR. No opportunity to get away with something now and hope they miss it.

It does not seem that properly appreciate the point I am seeking to make. So I will not take it very far.

I appreciate you have your view, which may not coincide with many people on the forum, but the point I made has not been properly comprehended by you.

I note your views nevertheless.

Obie wrote:It does not seem that properly appreciate the point I am seeking to make. So I will not take it very far.

I appreciate you have your view, which may not coincide with many people on the forum, but the point I made has not been properly comprehended by you.

I note your views nevertheless.

It wasn't my view, it was the view of a UK solicitor. That's why I put the link.

As I said Petaltop, whether your views or your solicitors, it is duly noted.

There are caselaw and actual laws, I am seeking a debate on this, and if this your solicitor is on the forum, I am happy to take him on any day.

As you are simply a messanger , it will be unfair for me to burden you with these legal jargon.

I am with you Obie. From the evidence you provided it seems that this new requirement is breach of EU law. However, I am not a lawyer so I would really like to hear what immigration lawyers have to say about this. What surprised me is that the Home Office did not give any prior notice like they did with the new English language requirements. NCS were told about this because when I had my appointment with them about a week ago they pointed this out to me. HO were very sneaky with this new requirement. I don't think there is an official announcement on gov.uk either. This is very odd and a lot of people will have serious problems, especially if they have scheduled their NCS appointment around the time that this new requirement will come into force. However, from what I have seen in other posts, it seems that NCS contacts applicants about this new requirement so moving their NCS appointment might be possible without having to pay the full fee again.

My main issue apart from the unfairness and the lack of transitional provision, is the fact that the provision runs contrary to Article 25 of the Directive .

The UK cannot insist, contrary to that provision, that PR can only be evidence by a document issued by the competent memberstate confirming the existence of that right.

The caselaw states that notwithstanding the fac t that memberstate are free to lay down their nationality rule, they must have regards to binding provision of EU law.

On this occasion it does appear that any regards was given to EU law, most especially Article 25 of Directive 2004/38EC, which provides that under no circumstance shall a Residence documents be made a pre condition for exercise of EU law right.

Obie wrote:As I said Petaltop, whether your views or your solicitors, it is duly noted.

There are caselaw and actual laws, I am seeking a debate on this, and if this your solicitor is on the forum, I am happy to take him on any day.

As you are simply a messanger , it will be unfair for me to burden you with these legal jargon.

As I said Obie

Petaltop wrote: It wasn't my view, it was the view of a UK solicitor. That's why I put the link.

You wanted a debate and I linked the opinion of a UK solicitor, which was different to your view.

I accept your comments and views and it is duly noted.

If it is any comfort, my views are not at variance with the ones you express.

Even the solicitor acknowledged what I say. That in legislating under their citizenship provisions, memberstate has huge margin of discretion, however they ma not legislate in a manner that fails to have regards to community law.

Yes I am not saying for example , that their character test is wrong, or they should apply public policy provision to citizenship. All I said is, by saying PR status can only be evidenced by a document certifying it's existence, that is in direct contravention of EU law.
The lawyer in question also expressed misgivings about the the new provision, and I believe on closer examination of the authority and case laws incited , he will appreciate the points I raised.

I understand and know your views on Immigration, it is no secret to me, we have met on several occasions.

I duly noted your concerns on Immigration and benefit.

The citizenship people under rigorous checks on supporting documents. This provision will not stop people who are entitled to apply , neither is it there to prevent fraud.

It was implemented simply to make money and cause undue delay on EEA national who have right to apply from applying.

My alternate viewpoint on the possible reasoning behind the regulations.

Obie, this is a question for my personal clarification. I hope that you respond in a positive spirit.

The British Nationality Act 1981 talks of "being free of immigration controls" as a prerequisite for citizenship. The Immigration Act 1971 defines it for non-EEA citizens. Which statute or regulations specifically states that PR is the equivalent of "free of immigration controls"? I could not find anything in the EEA Regulations 2006.

secret.simon wrote:
Obie, this is a question for my personal clarification. I hope that you respond in a positive spirit.

Why do you think I may respond in a negative spirit.

I always respond to everyone in a courteous and dignified, and if you point out cases where I had responded negatively, I will unreservedly apologise.

secret.simon wrote:The British Nationality Act 1981 talks of "being free of immigration controls" as a prerequisite for citizenship. The Immigration Act 1971 defines it for non-EEA citizens. Which statute or regulations specifically states that PR is the equivalent of "free of immigration controls"? I could not find anything in the EEA Regulations 2006.

SCHEDULE 2 > 2(1).

Well you bit me to it Vinny, was about to post that.

Was just concerned that Secret Simon felt I may not react positively.

It seems he was exhorting me to respond positively, and this caused a bit of scare to me.

Thanks Vinny. The devil is in the details. I read the Regulations, but did not bother to read the Schedules

Obie, I did not mean that your responses are negative. But the language and tone of your interventions and discussions on these forums are unnecessarily sharp, such as this intervention, this one & this one.

I understand that we come from different viewpoints. You are a lawyer and fight your case to win, whereas I argue the contrary case to ensure the debate/discussion is properly framed. Perhaps my behaviour offends you, but your responses on the forums appear to me to be too tart and unhelpful. It is not that I do not wish to be corrected. I would not be on an open forum if I was averse to that. But I have been corrected by other moderators and members without the language acquiring an aggressive tone.

Well I unreservedly apologise on open forum for any upset or distress my actions or posts may have caused you , and I can assure you it was not done to humiliate or embarrass you in any way. In hindsight I ought to have acted in a more courteous manner, but be rest assured it was not done with malicious intent.

I have learnt a lot more on this forum, than at any institution, and It is my views that this forum are more informed than judges.

I probably was having a bad day when those post were sent, but it does not justify it, if it caused you offense. I will seek to retract them, and I will implore you to confront me if you ever feel my post was unduly aggressive.

Thank you for the apology. It is accepted. I never imputed any malicious motive to your interventions, only a passion to win. But we are not a court, merely online friends trying to help each other out.

After this point of order, let us resume the debate.

With regards to the topic of this thread, I am inclined to agree with you that prima facie, the government's requirement of applying for a PR card before naturalisation is not in accordance with its own laws as they stand.

However, the government could easily modify Schedule 2 of the EEA Regulations, so that the definition of "free of immigration controls" means acquisition of a PR card rather than acquisition of PR. That is definitely within the powers of the UK government.

I would argue that Micheletti is not relevant to this discussion because that dealt with a Member State effectively stripping a dual EEA/non-EEA national of their EEA citizenship status.

Even were it to apply, the change that I suggested above would comply with the judgment because
a) It imposes a standard condition on all EEA citizens and does not single out any nationality.
b) It is no more onerous than the situation of non-EEA citizens i.e. EEA citizens are not being disadvantaged compared to non-EEA citizens.
c) The fundamental freedoms of free movement is not in any way being denied. The EEA citizen will still acquire PR under EU law. However, the benefits in domestic law that used to flow automatically from PR would now flow from acquisition of PR Card.

Of course, my arguments are that of a non-lawyer, who is interpreting the text of the judgment in the ordinary sense of the words and without regards to the context of other judgments.

Firstly, you are not my opponent , and I have no vested interest in winning against you. We are not in a Tribunal or a court of law, it is a forum were ideas and views are expressed and discussed in a open and cordial manner.

The ECJ, now the CJEU has long stated since the days of Royers, that the right under EU law for EU national to move and reside derives directly from the treaty, and not even secondary provision (Directive) , the courts have also stated that the Residence Documents serves to evidence rights and does not confer any rights other than those conferred by EU law.Even the case of MRAX reiterate this position in relation to Non EEA national.

The Regulations were drafted by Virtue of the European Communities Act 1972. They have to give effect to EU law, and they cannot make the residence document a pre-condition for the exercise of a right under EU law, as Article 25 that I cited above clearly stated.

I understand that memberstate has a wide margin of discretion in setting the basis for acquiring and loss of nationality, but the caselaw says, they need to have regards to EU law, and my issue is that, if they really had regards to EU law, and Article 25, of directive 2004/38EC, which states that under no circumstance should a residence document be made a precondition for evidencing of right or administrative practises, as these rights can be evidence by other means.

This legislation essentially tramples EU law.

The situation is, the Government acknowledges that people with EU law rights have right to apply for naturalisation.

It is open to them to say that a person with PR under EU law will need to wait for 2 years for naturalisation, but to say they will only recognise a PR if they person has a document certifying this, does not seem to comply with EU law.

I respect your views, and I welcome it, and you should never feel restricted to express them, notwithstanding the fact that it may not comply with mine.

Hi all gurus!
I probably should not interrupt as it is a serious academic discussion, which I do not know much about. But I'm a bit scared by the title so I went in check and just wanted to ask about how exactly this new law affects our EEA & EEA FM's future status or application process.

1. Does this mean under new law EEA nationals need to apply PR after 5 years of being qualified person in UK vs. automatically acquire PR after 5 years before new law?

2. To non EEA fm of EEA nationals, this seems to me does not really change PR application process we are currently dealing with?

Many thanks! To be educated.

Obie wrote:I understand that memberstate has a wide margin of discretion in setting the basis for acquiring and loss of nationality, but the caselaw says, they need to have regards to EU law, and my issue is that, if they really had regards to EU law, and Article 25, of directive 2004/38EC, which states that under no circumstance should a residence document be made a precondition for evidencing of right or administrative practises, as these rights can be evidence by other means.

This legislation essentially tramples EU law.

The situation is, the Government acknowledges that people with EU law rights have right to apply for naturalisation.

I will rephrase the last sentence as "the UK, through legislation enacted by its government, grants that people with EU law rights have right to apply for naturalisation."

Nothing in EU law states that EEA citizens in another EEA country have a right to citizenship of the country in which they are resident.

The rights that EEA citizens have under the treaties are pretty circumscribed. They have the right to exercise specified treaty rights and after a specified period of years, they have the right to reside permanently in another EEA country. They have a right to have their non-EEA family, which is also defined narrowly and specifically, accompany them and a right to have extended family members to be treated more preferentially than other non-EEA citizens resident in the country of residence. By analogy to the last provision, EEA citizens themselves should not be in a worse situation than non-EEA citizens in the country of residence. So far, so specific.

Let us now look at acquisition of UK citizenship. To acquire UK citizenship, the applicant must be "free of immigration controls". The duration depends on whether or not s/he is married to a British citizen, but it is an absolute requirement that is not subject to Home Office/SSHD discretion.

The definition of immigration controls is laid out in the Immigration Act 1971. But the UK government, by provisions of a statutory instrument, pointed out by Vinny earlier, also considers people who have attained PR to meet the requirement.

But it needn't. It is my contention that the UK government can, by either statutory instrument or by primary legislation if required, change the standard at which EEA citizens become "free of immigration controls", so long as it does not make them worse-off than non-EEA citizens making the same application. So, in theory, the UK government can even impose salary and/or employment requirements on EEA citizens applying for citizenship, provided that non-EEA citizens are required to meet the same or tougher conditions.

I will agree with Obie that requiring EEA citizens to have a PR card before citizenship is wrong so long as the provisions of the EEA Regulations, Schedule 2 are not changed before. So long as those provisions are modified first and then the proposed changes to the application form are made, I believe that it would be legal.

Well your last set of statement does not make much sense to me.

The directive provides that once PR has been acquired, no conditions can be imposed on EU citizens.

It will be strange if UK says they are subject to immigration restriction, when the Directive states that all conditions as to benefits and the requirement to be exercising treaty rights should be lifted.


Don't believe that will work .

Nina Roche wrote:Hi all gurus!
1. Does this mean under new law EEA nationals need to apply PR after 5 years of being qualified person in UK vs. automatically acquire PR after 5 years before new law?

PR is still automatically acquired under the EEA Regulations. But in order to progress from PR to citizenship, one will need to have a PR card. It is not immediately clear from the statutory instrument or the form whether the one year free of immigration controls needs to elapse from the automatic acquisition of PR or from the acquisition of the PR Card. As I have mentioned above, I believe that the government has erred in making the changes to the form before amending the EEA Regulations themselves.

Nina Roche wrote: 2. To non EEA fm of EEA nationals, this seems to me does not really change PR application process we are currently dealing with?

Correct. It changes the citizenship process, not the PR process.

But there may be implications for the benefits of PR or what PR means in UK law.

Nina Roche wrote: Many thanks! To be educated.

We had an extensive chat a while ago and it is a pleasure to chat again.

Obie wrote:The directive provides that once PR has been acquired, no conditions can be imposed on EU citizens.

As I read the directive, acquisition of permanent residence only means that the EEA citizen does not need to exercise treaty rights any more to be residing in the UK on a permanent basis. Their non-EEA family members acquire PR in their own right. But that is it.

Almost all other rights, it seems to me, derives from analogy that the rights of EEA citizens must not be worse off than non-EEA citizens. But they can be reduced to that level.

secret.simon wrote:

Obie wrote:I understand that memberstate has a wide margin of discretion in setting the basis for acquiring and loss of nationality, but the caselaw says, they need to have regards to EU law, and my issue is that, if they really had regards to EU law, and Article 25, of directive 2004/38EC, which states that under no circumstance should a residence document be made a precondition for evidencing of right or administrative practises, as these rights can be evidence by other means.

This legislation essentially tramples EU law.

The situation is, the Government acknowledges that people with EU law rights have right to apply for naturalisation.

I will rephrase the last sentence as "the UK, through legislation enacted by its government, grants that people with EU law rights have right to apply for naturalisation."

Nothing in EU law states that EEA citizens in another EEA country have a right to citizenship of the country in which they are resident.

The rights that EEA citizens have under the treaties are pretty circumscribed. They have the right to exercise specified treaty rights and after a specified period of years, they have the right to reside permanently in another EEA country. They have a right to have their non-EEA family, which is also defined narrowly and specifically, accompany them and a right to have extended family members to be treated more preferentially than other non-EEA citizens resident in the country of residence. By analogy to the last provision, EEA citizens themselves should not be in a worse situation than non-EEA citizens in the country of residence. So far, so specific.

Let us now look at acquisition of UK citizenship. To acquire UK citizenship, the applicant must be "free of immigration controls". The duration depends on whether or not s/he is married to a British citizen, but it is an absolute requirement that is not subject to Home Office/SSHD discretion.

The definition of immigration controls is laid out in the Immigration Act 1971. But the UK government, by provisions of a statutory instrument, pointed out by Vinny earlier, also considers people who have attained PR to meet the requirement.

But it needn't. It is my contention that the UK government can, by either statutory instrument or by primary legislation if required, change the standard at which EEA citizens become "free of immigration controls", so long as it does not make them worse-off than non-EEA citizens making the same application. So, in theory, the UK government can even impose salary and/or employment requirements on EEA citizens applying for citizenship, provided that non-EEA citizens are required to meet the same or tougher conditions.

I will agree with Obie that requiring EEA citizens to have a PR card before citizenship is wrong so long as the provisions of the EEA Regulations, Schedule 2 are not changed before. So long as those provisions are modified first and then the proposed changes to the application form are made, I believe that it would be legal.

Do you even think you comprehend article 25 enough to be relentlessly making a legal case for the government where prima facie of course their position is wrong.

I cannot stand debating with you, not because I could not, but simply because you have an immortal penchant to win any debate even when your position on the matter is precarious, it's like debating with a brick, you have contradicted your very own position. The is no legal loophole that may assist the government to circumvent the clearly unambiguous wordings of Article 25.

However, the government could easily modify Schedule 2 of the EEA Regulations, so that the definition of "free of immigration controls" means acquisition of a PR card rather than acquisition of PR. That is definitely within the powers of the UK government.

This is your statement which you believe will assist the government, again go and read Article 25 and try answering your own question.

It appears though that there is no point for me to engage you on this issue as you seem to know much more on the topic than everyone else, I applaud Obie who appears to not be intimidated by your seemingly often lengthy and erroneous logic, that he actually took it upon himself to reply to what I ascribe as otiose argument. I of course will bow to your superior knowledge and would not presume to pass further comment.

Whilst you appear generally clued as to the law sometimes, which I should commend, in future learn to pick your side of the argument, if you were a judge no one would win a case against your differing opinion.


PR is automatic, and SSHD cannot lawfully require the grant and evidence of it as prerequisite to citizenship.

@lurli,
You misunderstand me. I am not here making a case for the government because I believe they are right. I am here making a case because there is a pro-immigration anti-government consensus on these forums. I am very suspicious of consensus, especially when they stifle any alternate viewpoints from forming. To see the negative effects, just think back to the front-benches of the last parliament, where you could not put a cigarette paper between the position of most parties.

My intention is to provide an alternate viewpoint, if necessary even one that I do not support, so as to challenge the consensus. In a sense, I'm playing devil's advocate.

It may seem weird to you, but I can see fatal issues with the position I have outlined above. But they are not the flaws that Obie, whose knowledge of the law I respect deeply, or anybody else has pointed out in this thread.

lurli wrote:I cannot stand debating with you

But we never have, given that this is your first post, unless you have been on these forums with another alias.

lurli wrote:Do you even think you comprehend article 25 enough to be relentlessly making a legal case for the government where prima facie of course their position is wrong.

I presume that you are referring to Article 25 of the Directive. For easier reference, I'll quote it in full here;

Possession of a registration certificate as referred to in Article 8, of a document certifying permanent residence, of a certificate attesting submission of an application for a family member
residence card, of a residence card or of a permanent residence card, may under no circumstances
be made a precondition for the exercise of a right or the completion of an administrative formality, as entitlement to rights may be attested by any other means of proof.

As I read it, it refers to rights and administrative formalities arising from the directive and under EU law. By the fact that directive suggests that such a card may be issued in the first place, it suggests that the Directive foresees that such a card would be used for some purposes. Else, the Directive would have not mentioned issuance of a PR card at all.

lurli wrote:PR is automatic, and SSHD cannot lawfully require the grant and evidence of it as prerequisite to citizenship.

I agree with the first part of the sentence about the acquisition of PR.

The UK Parliament can make any laws, as it sees fit in its wisdom, to confer citizenship on people who are not citizens. It can alter the rights of residents of other nationalities, such as conferring the right to vote in parliamentary elections on Commonwealth citizens, but not EU citizens. And as any legislature in the world, it can delegate such powers or parts of it to a person or a group of persons.

lurli wrote:you have an immortal penchant to win any debate even when your position on the matter is precarious, it's like debating with a brick

I always fancied being Judge Jeffreys. Quite handy some times.

Secretsimon just want to clarify one thing.

Under the Directive, the position of an EU citizen is not compared to non-EEA national in the UK, but British Citizen.

I doubt there is a basis to argue that the position of EEA national and their family is comparable to non-EEA.

The UK will get into trouble, if it states that EU national who have acquired PR status are subject to immigration control. That will lead to catalogue of problems