Post
by el patron » Thu Nov 29, 2012 12:37 pm
Here is the UKBA position of the changes and the transitional provisions -
From: European Operational Policy Team
Subject: Revision to the Definition of EEA National
Date: 16 July 2012
Issue number: 09/2012
Purpose of notice
1. This notice replaces European Operational Policy Notice 07/11 and provides guidance to UK Border agency staff on:
a) how to consider applications following amendment on 16 July 2012 to the definition of EEA national in the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”) giving effect to the Court of Justice of the European Union („‟ECJ) judgment in the case of McCarthy (C434/09); and
b) the transitional arrangements in place for persons who are seeking a right of entry or residence on the basis of the previous definition of EEA national
Pre-McCarthy Position
2. Until 16 July 2012 persons who held British citizenship and who were also nationals of another EEA member state could rely on that other EEA nationality to benefit from the terms of the Directive. This was because Regulation 2 of the 2006 Regulations did not preclude such dual national British citizens from benefitting from free movement rights.
3. The definition of EEA national in Regulation 2 was amended on 16th July 2012 to preclude dual British citizens/EEA nationals from benefitting from the Directive and therefore also to preclude their family members from relying upon free movement rights.
4. In McCarthy the ECJ determined that a person who holds the nationality of the host Member State (so in our case British nationality) and has never exercised their right of free movement and residence does not benefit from the terms of the Free Movement Directive. This is regardless of whether or not they hold dual nationality with another EEA member state. This means that family members are also unable to derive a right of residence under the Directive on the basis of their relationship to such a national.
5. Amending Regulation 2 in this way in light of the case law ensures that British citizens can only acquire free movement rights in certain scenarios (see below) and so are in general are prevented from
circumventing the requirements of the UK Immigration Rules when sponsoring entry to the UK of family members.
Consideration
6. Where a person has applied on the basis that they are a dual British citizen/EEA national on or after 16th July 2012 then the application must be refused unless the person either:
a) Meets the provisions of regulation 9 (which gives effect to the ECJ case of Surinder Singh (C370/90)) or
b) Comes within the scope of the transitional arrangements as set out in paragraphs 8-14 of this notice.
Surinder Singh Cases
7. The judgment in the case of McCarthy does not affect the right for family members of dual British/EEA citizens to enter and reside in the UK under the terms of the Surinder Singh judgment. Where a person does meet the conditions in regulation 9 they will be issued a residence card (or registration certificate if they themselves are EEA nationals). See EOPN 06/12 for further information on Surinder Singh cases.
Transitional Arrangements
8. In order not to unfairly prejudice the position of persons who have acted in reliance on the previous definition of EEA national, transitional provisions have been made. Without transitional arrangements, such persons could be left entering or residing in the UK without any valid basis to remain and unable to switch into the Immigration Rules. These transitional arrangements are set out in paragraph 2 of Schedule 3 of the Immigration (European Economic Area) (Amendment) Regulations 2012.
9. Transitional arrangements have therefore been introduced to enable continued reliance on the previous definition of EEA national. These provisions apply where a person:
a) Has a right to permanent residence in the UK in reliance on the previous definition on the 16 July 2012 OR
b) Has a right to reside in the UK on 16 July 2012 AND on 16 October 2012 either:
i. Holds a valid registration certificate or residence card issued under the 2006 Regulations, or
ii. Has made an application under the 2006 Regulations for a registration certificate or residence card which has not yet been determined
iii. Has made an application under the 2006 Regulations for a registration certificate or residence card which has been refused and in relation to which an appeal under regulation 26 could be brought whilst the appellant is in the UK or is pending; OR
(c)Has, prior to 16 July 2012, applied for an EEA family permit as the family member of an EEA national; OR
(d) Has prior to 16 July 2012 applied for and been refused an EEA family permit provided that an appeal against that decision under regulation 26 could be brought or is pending.
10. These transitional arrangements apply until:
a) The six month validity period to enter the UK in reliance on a family permit has expired and the family member has not entered the UK.
b) Any appeal can no longer be brought
c) Any appeal is dismissed, withdrawn or abandoned
d) The person ceases to be the family member of the EEA national
e) Any right of permanent residence is lost as a result of absence from the UK
11. In practice this means that once a right is lost, appeal rights against a claimed right are exhausted or a family permit is not used, reliance can no longer be placed by that person on the previous definition of EEA national. Further detail on these events is provided in Annex A
Right to Permanent Residence
12. A person who qualifies under these transitional arrangements and who had not acquired permanent residence on or before 16 July 2012 may do so under regulation 15 of the 2006 Regulations provided that they meet the requirements for permanent residence under regulation 15 at the relevant future date.
13. A person who qualified under the transitional arrangements cannot, however, acquire a right to permanent residence as a person who has retained the right of residence in the UK. This is because they only benefit from the transitional arrangements so long as they are the family member of the relevant EEA national. At such time as the
relationship breaks down, for example following divorce, they will no longer meet that definition.
14. Unless an applicant falls within the scope of the transitional provisions, an application received after 16 October 2012 must be processed in accordance with the new definition of EEA national even if the applicant has been residing in the UK in reliance on the previous definition. Applicants should be advised that unless they meet the criteria for reliance on the transitional provisions there is no legal basis on which they can continue to rely on the previous definition of EEA national.
Enquiries
15. Any policy enquiries on this notice should be addressed to [REDACTED] or [REDACTED] to the European Operational Policy inbox: [REDACTED]
[REDACTED]
Head of European Operational Policy, Operational Policy and Rules Unit
16 July 2012
Annex A – Further Detail on the Extent of the Transitional Provisions
a)The date six months after an EEA family permit has been issued, if the family member has not travelled to the UK within that permit’s validity.
1. If a family member is issued with an EEA family permit in the circumstances contemplated by the transitional arrangements, then they must travel to the UK within the period of that permit‟s validity (6 months). If they do not, they cannot rely on the previous definition of EEA national after that period expires. Travel to the UK within the period of the permit‟s validity is sufficient as evidence of a person‟s reliance on the pre-McCarthy position. A person does not subsequently have to apply for a residence card or registration certificate and will automatically acquire PR following five years continuous residence in accordance with the Regulations. If they do leave the UK, without having obtained a residence card or registration certificate then they can still apply for another EEA family permit and as long as they remain the family member of a UK/EEA national then they can rely on this for entry purposes.
b)The date on which an appeal against a decision to refuse can no longer be brought
2. If the family member does not lodge an appeal against a refusal to issue an EEA family permit, residence card or registration certificate within the timeframe for doing so, then they will be unable to rely on the pre-McCarthy position. This means that they can no longer claim a right to reside in the UK on the basis of their relationship to a dual UK/EEA national.
3. An appeal that is lodged out of time will not be acceptable for the purposes of the McCarthy transitional arrangements, regardless as to whether permission to appeal by the AIT is granted.
c)The date on which any appeal against a decision to refuse is finally determined, abandoned or withdrawn
4. Where an appeal against a refusal to issue an EEA family permit, residence card or registration certificate is lodged and it is subsequently withdrawn, abandoned or dismissed then a person will not be able to rely on the pre-McCarthy position and so cannot remain in the UK as the family member of a UK/EEA national. If the appeal is allowed and documentation is issued on this basis, then the family member will be regarded as if they have been issued a document in accordance with the transitional arrangements and so can continue to reside in the UK on that basis.
d)The date on which the family member ceases to be the family member of an EEA national
5. A person who relies on these transitional arrangements for a right to reside under the 2006 Regulations and who has not yet acquired permanent residence will cease to qualify under the transitional arrangements if they cease to be the family member of an EEA national. This means that if the marriage or partnership is legally terminated, or the UK/EEA national ceases to remain a qualified person, then the family member will cease to have a right to reside.
f)The date on which a right of permanent residence under regulation 15 of the 2006 Regulations is lost
6. Where a person has acquired permanent residence on the basis of the previous definition of EEA national then this will be lost following absence from the UK for a period exceeding two consecutive years.
