NEW EEA Regulation that violates EU law coming into effect

Use this section for queries concerning applications on any of the EEA series of forms, and also for applications for EEA Family Permits.

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Re: NEW EEA Regulation that violates EU law coming into eff

Postby Dirk » Mon Nov 07, 2016 5:08 pm

In reality the caseworkers seem to have been working to these rules for a while now, they are finally spelling out what they have been doing (perhaps the Gina Miller High Court ruling did teach them something about the rule of law).

From the SS Facebook groups I have noticed that a lot of people who just copy the "SS for beginners" template ie move from the UK to Ireland and work for 91 days then apply for a FP (which isnt even needed) come back to Britain and get rejected for two reasons, COL and "circumventing national immigration rules" tucked into the Regulation 9 refusal. I repeatedly try to tell them that they should not appear to be simply following a guide from the internet but try to make a life for themselves in Ireland before a change of plans makes them move to the UK, tailor their applications to themselves and not be arrogant by using covering letters but it doesn't seem to sink in. Whether the HO is acting rightly or wrongly being blatantly obvious with them will decrease your chances and increase the chance of having to spend a grand and wait 2 years for a tribunal decision which will probably go their way but why waste all that money and time when you can get an RC in about 5 months by doing a more thorough application.

I often tell people that travelling from ROI to the UK does not need a FP, if you have trouble boarding a flight or ferry which you probably wont then go via Belfast. It seems the people who chose this route are more successful than those who apply for a FP. The HO also seems to know this which is why they are abolishing the lower tier tribunal effectively meaning you have to go straight to defacto Judicial Review and threatening the end of in country appeals to deter use of the Common Travel Area without an FP or Irish RC.

If someone's UK visa runs out and they go back to say Tunisia, apply for an Irish C visa (tourist, surely D settlement would be more convincing), then stay with their partner who does childminding for 3 months before going to the UK does not look Centre of Life was genuine and they can claim avoiding UK Immigration was the reason not a genuine desire to live in Ireland.

A couple moving from a non EEA state to one which is not so close to the UK, perhaps claiming family links or a community of people from the non EEA's home country, getting the RC, doing a language course then moving the UK at a natural point like the end of the fixed term employment countract is hard to refute even if it was all planned in advance for the purpose of avoiding the marriage visa.
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Re: NEW EEA Regulation that violates EU law coming into eff

Postby alphagear » Mon Nov 07, 2016 5:26 pm

When does the out of country appeal take effect for eea applications?
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Re: NEW EEA Regulation that violates EU law coming into eff

Postby Petaltop » Tue Nov 08, 2016 4:51 am

secret.simon wrote:e) Unusually, it seems to me that Paragraph 2 of the transitory provisions states that SS applications made before 25th November (when the new provisions come into effect), but not decided by that date, will be assessed according to the new provisions. I can imagine that that is going to run into deep legal waters. I am fairly certain that this will be the first provision to be questioned and thrown out by the courts.


Isn't this the same as they did when they ended the '14 year illegal for ILR'? It ended for all applications not granted before that date?
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Re: NEW EEA Regulation that violates EU law coming into eff

Postby secret.simon » Thu Nov 10, 2016 2:08 pm

Also see this post about a new requirement to use the prescribed Home Office forms for applying for EEA Route documentation.
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Re: NEW EEA Regulation that violates EU law coming into eff

Postby DFDS. » Thu Nov 10, 2016 8:48 pm

Obie wrote:The Home Office has decided to bring new laws from 25-11-2016.

Some of this laws like the Surinder Singh changes are designed to deliberately breach EU law.

It appears that the Court will be very busy.

The most immediate of the changes, is making it clear that Extended Family members have no appeal rights, that is from the 25-11-2016.

Surinder Singh changes also coming into place on the 25-11-2016.

New definition of marriage of convenience provision, which also violates EU law.

The court will simply have to set these provisions aside.


http://www.legislation.gov.uk/uksi/2016/1052/made
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Re: NEW EEA Regulation that violates EU law coming into eff

Postby manicminer » Mon Nov 14, 2016 9:07 am

Is it likely that the removal of appeal rights will be challenged any time in the near future before it has an impact on people's applications?

Judicial review is hardly a good or reliable option for families and non-EU direct family members in situations where they are given no rights of appeal.
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Re: NEW EEA Regulation that violates EU law coming into eff

Postby Casa » Mon Nov 14, 2016 9:18 am

manicminer wrote:Is it likely that the removal of appeal rights will be challenged any time in the near future before it has an impact on people's applications? No, as appeal rights haven't been removed. Appeals can still be made outside of the UK.

Judicial review is hardly a good or reliable option for families and non-EU direct family members in situations where they are given no rights of appeal.
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Re: NEW EEA Regulation that violates EU law coming into eff

Postby Obie » Mon Nov 14, 2016 11:32 am

The removal of in country appeal rights is something that is clearly open to challenge.
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Re: NEW EEA Regulation that violates EU law coming into eff

Postby manicminer » Sat Nov 19, 2016 10:55 am

Casa wrote:
manicminer wrote:Is it likely that the removal of appeal rights will be challenged any time in the near future before it has an impact on people's applications? No, as appeal rights haven't been removed. Appeals can still be made outside of the UK.

Judicial review is hardly a good or reliable option for families and non-EU direct family members in situations where they are given no rights of appeal.



Yes, I should have made it clearer that I was referring to the right of an in-country appeal being removed for direct family members unless they already hold a host RC or UK FP.

I guess it's all fine and well that we all air our opinions on here about the ramifications of the amendments to the the regulations, but from what I see on the ground, case workers are literally 'making up' baseless refusal reasons for UKFPs and UKRCs that range from inclusions of an unavoidable photocopied document in an application to an inaccuracy in a date or even a short gap in exercising Treaty rights.

It's very clear from the HOs resentment towards EU law that removal of in-country appeal rights or the extension of the groundless CoL test are all ways to obstruct the (barely) remaining free movement rights of UK citizens.

The principle seems to be to create barriers so complex and labyrinthine (just look at the EEA Regulations) that the average couple or family unit are unable to meet or are likely to fall foul of.
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Re: NEW EEA Regulation that violates EU law coming into eff

Postby vinny » Sat Nov 19, 2016 1:10 pm

Unfortunately, it appears to be part of the UKVI's hostile environment against a whole lot of people.
Please click on any given links for further information.

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Re: NEW EEA Regulation that violates EU law coming into eff

Postby ninmurai » Fri Nov 25, 2016 3:42 am

I have concerns with Regulation 9(2):

(2) The conditions are that—
(a)BC—
(i)is residing in an EEA State as a worker, self-employed person, self-sufficient person or a student, or so resided immediately before returning to the United Kingdom; or
(ii)has acquired the right of permanent residence in an EEA State;
(b)F and BC resided together in the EEA State; and
(c)F and BC’s residence in the EEA State was genuine.


As I understood Directive 2004/38/EC and SS, as long as you 'activated' your Treaty rights, they remain with you even if you don't live in an EEA country for a while? The bold part above appears to be a new barrier? Forgive me if I am totally mistaken, but do let me know if I am!

e.g. UK citizen living and working in Italy for 3 years with non-EU spouse (not long enough to get Permanent Residence), then moving to Asia for a couple of years. Under previous rules seeking residence in UK under SS rules would be permitted, but under the explicit wording of the new 2016 regulations would apparently be barred.
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Re: NEW EEA Regulation that violates EU law coming into eff

Postby noajthan » Fri Nov 25, 2016 10:42 am

Obie wrote:The Home Office has decided to bring new laws from 25-11-2016.

...


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Re: NEW EEA Regulation that violates EU law coming into eff

Postby MrSlyFox » Fri Nov 25, 2016 4:28 pm

New EEA Case Law and Appeals Information: Immigration Regulations 2016 Rule Changes

https://www.gov.uk/government/uploads/s ... Law-v3.pdf
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Re: NEW EEA Regulation that violates EU law coming into eff

Postby MrSlyFox » Fri Nov 25, 2016 4:45 pm

New Free movement rights: Direct Family Members of EEA Nationals

https://www.gov.uk/government/uploads/s ... als-v4.pdf
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Re: NEW EEA Regulation that violates EU law coming into eff

Postby Obie » Fri Nov 25, 2016 5:16 pm

For goodness sake, please stop doing this.

This thread Is about the legislative changes and analysis.

Can you please refrain from uploading guidance.
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Re: NEW EEA Regulation that violates EU law coming into eff

Postby alphagear » Fri Nov 25, 2016 8:47 pm

Looks like Eind case has been scrapped.
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Re: NEW EEA Regulation that violates EU law coming into eff

Postby mkhan2525 » Fri Nov 25, 2016 10:29 pm

The new separate guidance released on how Singh cases are to be assessed is very disburting and most of what is being asked or investigated is not even lawful.

https://www.gov.uk/government/uploads/s ... -_v1_0.pdf
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Re: NEW EEA Regulation that violates EU law coming into eff

Postby manicminer » Mon Nov 28, 2016 9:10 pm

Obie wrote:The removal of in country appeal rights is something that is clearly open to challenge.


Do you mean by way of judicial review?

I'm not particularly familiar with judicial review, but I get the impression that it would be a much less desirable pathway towards gaining a residence card than being able to appeal.

Are there any options outside of judicial review?
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Re: NEW EEA Regulation that violates EU law coming into eff

Postby Sunnyday123 » Mon Dec 05, 2016 5:48 pm

I had a read through the new changes. It was really hard to understand can someone tell me.

Does the BC need to have a Job or Private health insurance upon arrival to UK along with their non-eu spouse?
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Re: NEW EEA Regulation that violates EU law coming into eff

Postby MrSlyFox » Fri Jan 13, 2017 3:43 pm

There already seems to be an amendment to the new regulations already. It seems to mainly fix minor errors. However, there is a new section which seems to be covering the "McCarthy cases".
Persons already residing in the UK on 16 July 2012 as family members of dual EEA and
British citizens, on 16 October 2012 will continue to be treated as the family member of an EEA
national for as long as they continue to be the family member of that dual national.

http://www.legislation.gov.uk/uksi/2017 ... 001_en.pdf
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