Immigrationboards.com

Of course the effect of the amendment on Surinder Singh cases has already been discussed. I am however at least as alarmed at the attempt to restrict the initial 3 month right of residence, the Home Office seem to want to remove the clock resetting that flows from the directive. I have highlighted in bold below 21B. (1)(a) of the new amendment which could be seen as giving 'carte blanche' to a decision maker to refuse initial right of residence on 'suspicion' only as I see it. It would not take too much further to see this used at juxtaposed border controls as a pretext for refusing entry! -

New regulation 21B (abuse of rights or fraud)
18. After regulation 21A, insert—
The Immigration (European Economic Area) (Amendment) (No. 2) Regulations 2013

“Abuse of rights or fraud
21B. (1) The abuse of a right to reside includes—

(a)engaging in conduct which appears to be intended to circumvent the requirement to be a qualified person; .
(b)attempting to enter the United Kingdom within 12 months of being removed pursuant to regulation 19(3)(a), where the person attempting to do so is unable to provide evidence that, upon re-entry to the United Kingdom, the conditions for any right to reside, other than the initial right of residence under regulation 13, will be met; .
(c)entering, attempting to enter or assisting another person to enter or attempt to enter, a marriage or civil partnership of convenience; or .
(d)fraudulently obtaining or attempting to obtain, or assisting another to obtain or attempt to obtain, a right to reside.

The Expalanory note to the amendement refers-

Paragraph 18 of the Schedule inserts a new regulation 21B in to the 2006 Regulations. This gives effect to Article 35 of Directive 2004/38/EC which provides that member States may adopt the necessary measures to refuse, terminate or withdraw any right conferred by that Directive in the case of abuse of rights or fraud. The new regulation prevents people from evading the requirements for an extended right of residence under the 2006 Regulations, for example by attempting repeatedly to re-enter the United Kingdom in order to engage regulation 13 (initial right of residence). Where a person has been removed from the UK on one previous occasion in a 12 month period for not having a right to reside, the new regulation 21B allows that person to be refused admission if they cannot demonstrate that, upon re-entry, they will have a right to reside other than that provided by regulation 13. Where a person is involved in a marriage or civil partnership of convenience or other fraudulent activity, measures to terminate or refuse a right to reside may also be taken.

I agree that getting a 1a may be more difficult at port unless and untill this change is sucsessfully challenged its a very short time ago that UKBA,s own website was saying it made "no difference if the only reason for exersizing rights was to come under european rules"

Member states may not apply as restrictive judgement of the court of justice, it appears to be the position the UKBA is hesitantly pursuing, no so long before this comes before the judiciary.

The difficulty i am having is this idea of a 1 year ban, for people who will otherwise have this right.

Article 35 does not require UKBA to ban people who have these rights, but permit them to impose measures to prevent these abuse noticeably marriage of convenience.

The UK is seeking to use it as a means of punishing people who would otherwise have these rights or who have these right of residence.

Notwithstanding the fact that i dont support those conducts, it will be wrong for the UKBA to refuse a guy who is genuinely married to a qualified person, the right to remain, on the grounds that he arranged a sham marriage for example.

If he has done something wrong, take him through the courts, if found guilty, impose prison sentence, but to interfere with the right to free movement, is something the UK is not permitted to do, except it complies with article 27 of the directive.

Cases such as Metock, has been explicit in stating that the memberstates can impose proportionate measures like fines or even imprisionment, but an expulsion, which by its very nature, interferes with a union citizens right free movement is not permissible by article 35.

See 95-97 of Metock , and par 77 of MRAX.

These sanctions, even though the UK said it will not be adopted systematically, will clearly be disproportionate and illegal if they don't comply with article 27. Article 35 alone is not sufficient to get the UK off the loop, they cannot use it as a justification.

Article 35 does not provide derogation from free movement, it empowers memberstates to impose measures to prevent abuse.