Is the new Law on evidencing PR status lawful

[secret.simon]

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.

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.

Many thanks! To be educated.

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

[secret.simon]

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.

[lurli]

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.

[secret.simon]

@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.

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.

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.

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.

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.

[Obie]

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

[secret.simon]

It depends on what the definition of "free of immigration controls" is.

At a border crossing into the UK, EEA citizens without PR, EEA citizens with PR and British citizens are all treated alike, whereas non-EEA citizens with ILR are treated differently, inspite of being "free of immigration control". So it patently is not their status at the border that distinguishes who is and who isn't free from immigration control.

"Free of Immigration Control" is essentially a status granted by domestic law, on its own terms. Domestic law also requires it as a precursor to an application for citizenship. Whether PR is considered to be the equivalent of "free from immigration control" would therefore be a part of domestic law, not EU law.

[Obie]

Well in UK , according to law, EU national are not subject to immigration control, as they have right to free movement and do not require leave.

This is why EEA national in the UK are free to obtain benefits, as they are considered to be free of immigration control.

The only question is when do they become settled and have no restriction on the length of time they can spend in the UK. This is where PR comes in.

Coz when an EEA national obtain PR status , there is no longer a restriction on their lawful basis of stay in the UK.

Before that period, there is a restriction, as their right to stay for an extended period under Regulation 14 is subject to them being a qualified person.

But as you see in Regulation 15, once PR is acquired, the only circumstance where is can be lost are on serious grounds of public policy or an absence of 2 years from the host member state.

Where as an extended right of residence is lost if an EEA national cease from being a qualified person within the meaning of Regulation 6.

It is quite a complex stuff, but I will try and be as patient as I can, and hopefully you may understand, even if you don't appreciate the point I am seeking to make.

[secret.simon]

It is quite a complex stuff

That is something we both can agree on.

Well in UK , according to law, EU national are not subject to immigration control, as they have right to free movement and do not require leave.

This is why EEA national in the UK are free to obtain benefits, as they are considered to be free of immigration control.

Agreed. That is why the "free from immigration control" language of UK legislation leaves much to be desired.

The only question is when do they become settled and have no restriction on the length of time they can spend in the UK.

This is the nub of our disagreements.

Your argument, as I understand it, is that as PR removes the restriction on length of time they can spend in the UK, that confers "settled" status. My argument is that "settled" status is what the UK Parliament, and in practice HMG, want it to mean. I know it sounds like it is out of Alice-in-Wonderland, but the definition of "settled status" can be changed by the UK government without reference to the restriction on length of stay. It can say that a person is "settled" in the eyes of UK law if they have a PR card. Even if they do not have a PR card but PR status, they would have the right to reside permanently in the UK, but they would not have the benefits of "settled status", such as applying for citizenship.

PR undeniably is acquired automatically and undeniably gives the person the right to reside in the UK permanently . But the definition of "settled status" is up to the government.

Furthermore, it is undeniably within the competence of the UK Parliament to grant citizenship and to prescribe conditions on which to grant it. If tomorrow it were to legislate that prospective citizens must have earned £40000 for each of the past five years or must have biological children of their own (these are hypothetical situations, people, not going to happen so please do not get your knickers into a twist), that would be political dynamite but would undeniably be the law. That would not impact the PR of EEA citizens or their family in the UK, but it would impact their citizenship applications.

[Obie]

I think you are missing the point slightly.

My contention is not with anything in the Nationality act 1981.

I simply said, the Government is wrong to say PR status can only be evidence by a document confirming PR status.

It also has the implication of making PR document the source of Right, when it is only designed to evidence right.

In legislating in this way, the UK government acted in
breach of Article 25 of Directive 2004/38 EC and acted in breach of transitional provision, by failing to make provision for people who had applied before this rule came into effect, and also against section 2 (2) of The European Communities act 1972 , which provides that all EU instruments have direct effect and are enforceable in the courts.

[secret.simon]

I simply said, the Government is wrong to say PR status can only be evidence by a document confirming PR status.

It also has the implication of making PR document the source of Right, when it is only designed to evidence right.

I agree with this limited statement.

The government cannot alter the way PR is evidenced as that is explicitly prohibited by Article 25. And PR status is something that is entirely regulated by EU law.

But it can alter Schedule 2 of the EEA Regulations to make holding a PR card the equivalent of settled status in UK law, rather than hold PR status itself. That they have not done so surprises me.

[Wanderer]

Anybody fancy a pint?

[Casa]

Anybody fancy a pint?

I hope you've been taking notes....

[Obie]

I agree with this limited statement.

The government cannot alter the way PR is evidenced as that is explicitly prohibited by Article 25. And PR status is something that is entirely regulated by EU law.

But it can alter Schedule 2 of the EEA Regulations to make holding a PR card the equivalent of settled status in UK law, rather than hold PR status itself. That they have not done so surprises me.

They could amend the regulations, but if that means UK gives less rights to people with Enforceable EU law rights, then UK will be in breach of EU law , as EU national are to have rights on per with a British national or people with settles status.

[secret.simon]

They could amend the regulations, but if that means UK gives less rights to people with Enforceable EU law rights, then UK will be in breach of EU law , as EU national are to have rights on per with a British national or people with settles status.

I believe that settled status impacts mainly citizenship applications. So redefining settled status for EEA citizens would not have any negative consequences for EEA citizens, apart from impacting citizenship applications for themselves and their families.

[Nina Roche]

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

Thanks a lot for explanation! It's certainly my pleasure as I'm the one who benefits from the education.

I found this forum is quite generous, nice and given.
Take this opportunity to thank all of you guys!

[demiane]

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.

Is it possible to make a complaint to the relevant EU authorities about this new regulation which seems to be in breach of Article 25 of Directive 2004/38 EC? If yes, which EU authority could someone talk to?

[physicskate]

They could amend the regulations, but if that means UK gives less rights to people with Enforceable EU law rights, then UK will be in breach of EU law , as EU national are to have rights on per with a British national or people with settles status.

I believe that settled status impacts mainly citizenship applications. So redefining settled status for EEA citizens would not have any negative consequences for EEA citizens, apart from impacting citizenship applications for themselves and their families.

So is Citizenship a right or a privilege? Can the UK not impose pre-conditions on naturalisation and acquisition of UK Citizenship of EU citizens, and in so doing make Citizenship a privilege and not a right?

[secret.simon]

So is Citizenship a right or a privilege?

I am sure that people on all sides of this debate are agreed that naturalisation is a privilege and not as of right (citizenship can be as of right if you are born in the UK and certain conditions are fulfilled).

Can the UK not impose pre-conditions on naturalisation and acquisition of UK Citizenship of EU citizens

Yes, it can. But the way HMG has gone about doing it in this instance was incorrect.

The discussion on this thread was regarding the legality or otherwise of HMG requiring PR to be proven by a PR card rather than accepting alternative proof. That is almost certainly foul of EU law.

My argument is that the UK Parliament (and HMG in practice) can redefine the requirements for citizenship, which unfortunately-and in my opinion, idiotically- they have not done.

[secret.simon]

Is it possible to make a complaint to the relevant EU authorities about this new regulation which seems to be in breach of Article 25 of Directive 2004/38 EC? If yes, which EU authority could someone talk to?

You could start by contacting Solvit UK.

Alternatively, somebody who is negatively impacted by this SI (i.e. somebody whose application after 12th November 2015 is refused for not having a PR card in spite of having PR) can sue HMG in court and the court likely will give a straightforward judgment in favour of the plaintiff or could refer the case to the CJEU/ECJ.

[Obie]

There is one more problem for the British Government , and I believe it will be facing court actions for damages.

Many EEA nationals apply for British passport for their children, without having a PR card.

When the UK government started the fee for EU application, it said a PR is the equivalent of a British passport. Therefore they are entitled to charge that fee.

However British nationals are not requires to have British passport before they can apply for a passport for their offspring, but EEA national will.

There is another legal problem.

If only PR document can act as a proof of PR, then children born in the UK, who are essentially citizens, will be forced to register, because they were born before their parent obtained PR certificate .

You will have the bizarre situation of some older children born in a family having citizenship and others told to register as the parents obtained pr document after they were born.

The UK government has not really thought of the impact of this. They were just wrong to conclude that there will be no impact.

A documents which serves a declaratory purpose has overnight become a document that confers rights.

[Obie]

An affected person is entitled to apply to the high court to declare incompatibility .

Where a national provision is incompatible with community law, courts are required to allow community law to reign supreme.

If passport office start refusing Passport to British citizens because their parents did not have PR documents on the day they were born, this will be a constitutional mess.

A complete charade, dressed up as a means of preventing fraud.

Then again they provided no reason.

It goes against UK policy that has existed for nearly a decade, that the Residence document is merely declaratory in nature and not a right conferring document.

[secret.simon]

If only PR document can act as a proof of PR, then children born in the UK, who are essentially citizens, will be forced to register, because they were born before their parent obtained PR certificate .

That would be the impact if holding a PR card is defined as "settled status", rather than having PR status itself. But that would not violate EU law, as I have argued above.

You will have the bizarre situation of some older children born in a family having citizenship and others told to register as the parents obtained pr document after they were born.

There have been cases on these forums where a sibling born before 1983 has British citizenship by birth in the UK, but one born in the UK after 1984 doesn't. But that is entirely possible given that citizenship rules change regularly. I object to the arbitrary and sudden nature of these changes being brought in by statutory instrument, but I do not question the right of the UK Parliament, either acting on its own or though a delegate, to make such rules.

The UK government has not really thought of the impact of this.

I concur. They have the right to do what they propose, but they have gone about doing it the wrong way.

A documents which serves a declaratory purpose has overnight become a document that confers rights.

The same document can have different roles in different systems.

It goes against UK policy that has existed for nearly a decade, that the Residence document is merely declaratory in nature and not a right conferring document.

Not UK policy, but EU policy. We may be required to comply, but we are not required to be happy bout it.

[Obie]

Please to see that freemovement concur with my views on the new law.

https://www.freemovement.org.uk/are-the ... -citizens/

[Wise]

Most Member State doesn't respect EU law anyway so am not surprise with the new rule. It is a way of making money and to frustrate people .

OBEI, SECRET SIMON, VINNY, PETALTOP.

WHERE IS THE WAY FORWARD ? CAN YOU GUYS NOT ABLE TO FORWARD A KIND OF LETTER TO THE EUROPEAN COUNCIL REGARDING THIS AND SEE HOW THEY CAN FIGHT FOR MANY IMMIGRANT OVER THE ISSUE AS YOU GUYS UNDERSTAND THE LEGAL SIDE OF IT. THANKS.

[secret.simon]

As Obie has mentioned

An affected person is entitled to apply to the high court to declare incompatibility .

Where a national provision is incompatible with community law, courts are required to allow community law to reign supreme.

So, a person who is adversely affected by this new provision can take it to the High Court to have it declared incompatible.

You can also submit a complaint to Solvit.

The appropriate institution at the European level to take this forward is the European Commission, not the European Council, the Council of Europe or the Council of the European Union (oh what joy the people naming these institutions must have had).

But given that the European institutions and the UK are attempting to re-negotiate the terms of the UK's membership in the EU by February, with a referendum likely by summer next year, I doubt that the query raised by you will be on top of the priority list.