New regulations coming into effect

[doratheexplorer]

Although on the UK border agency website it says that all the changes to the EEA regulations came into effect July 16. In a lot of other places it shows that the specific amendment concerning British nationals not being considered EEA nationals anymore would come into effect 16 october 2012.
Does anyone has any information about this?

It's been quite a disappointment to learn of these new regulations right 2 weeks before me and my husband were going to apply for the EEA family permit. So fingers crossed that October 16 is true!


Links that mention the later date:
http://asadakhan.wordpress.com/2012/07/ ... s-amended/
http://www.penningtons.co.uk/Global/PA% ... aspx?th=BS
http://www.lawfirmuk.net/arhive_news_e.html?id=203

[Jambo]

There is a transitional period. See here and the link to schedule 3 there.

[doratheexplorer]

Thanks dearest Jambo.
Me and my husband got married last october (2011), but have been living apart since then (for work reasons). So you think it is people like us that the transitional period covers?

[Jambo]

Depends what "living apart" means - Glasgow and London is fine. New York and London is not.

If you were living in the UK already, you are covered. If you have made an application before 16th July, you are covered.

I suggest you read schedule 3.

[Obie]

Depends what "living apart" means - Glasgow and London is fine. New York and London is not.

If you were living in the UK already, you are covered. If you have made an application before 16th July, you are covered.

I suggest you read schedule 3.

I believe OP is correct. She will be fine until October. Have a look at paragraph 1D of Schedule 1

If you look at commencement Paragraph 2(2) immediately after citation, it does state that aspect of the regulation will not come into effect until 16/10/2012

[Jambo]

[
I believe OP is correct. She will be fine until October. Have a look at paragraph 1D of Schedule 1

If you look at commencement Paragraph 2(2) immediately after citation, it does state that aspect of the regulation will not come into effect until 16/10/2012

You are right and this is true if you are already living in the UK under the regulations but I'm not sure this is the case if you need to apply for a EEA Family Permit.

See

(4) The criteria in this subparagraph are met where F-

(a)had, prior to the 16th July 2012, applied for an EEA family permit pursuant to regulation 12 of the 2006 Regulations; or
(b)has applied for and been refused an EEA family permit and where, on the 16th July 2012, an appeal under regulation 26 against that decision could be brought (excluding the possibility of an appeal out of time with permission) or was pending (within the meaning of section 104 of the 2002 Act).

[doratheexplorer]

No we haven't applied for the permit before, and we are living apart meaning I have always lived in my mother country, a non-EEA country, and he has lived in the UK. So I was never living in the UK. So I guess it's not going to work out for us this way

[Jambo]

No we haven't applied for the permit before, and we are living apart meaning I have always lived in my mother country, a non-EEA country, and he has lived in the UK. So I was never living in the UK. So I guess it's not going to work out for us this way

I could be wrong here but this is my understanding of the new regulations.
Better to wait and get other members view.

[doratheexplorer]

Thanks Jambo for all your help, and I believe you're right. but I sure do hope you're not hehe

[doratheexplorer]

Sorry for posting again on this topic, but after reading schedule 3 about the transitional period a major question popped into my head.
What do people who have applied for an EEA family permit prior to July 16th need to gain from this period until October? Is it to give enough time for their applications to process? or does it mean that in October dual Irish/British citizens who have been settled with their non-EEA spouse in the UK will lose this right and must apply for a UK spouse visa? or does it mean something else that I am totally missing?
I'm not sure if I'm expressing myself well enough, I just don't understand how these 3 months are relevant to people who have already applied prior to the changes.

Thank you and sorry again! I am a confused soul :s

[Jambo]

As far as I understand the transitional arrangement:

1) If you already live in the UK and want to make use of the EEA regulations, you need to apply before October.

2) If you are not in the UK and have applied for EEA Family Permit before July, then you can enjoy from the EEA regulations if you make use of the EEA Family Permit within 6 months (see 5(a)).

Basically, the transitional arrangements mean that if you are already under the EEA regulations, then you can continue to enjoy from them. If you haven't been under the regulations in July, you can't enjoy from them.

Again, this is my understanding.

[Obie]

On closer reading, it appears the EEA national with British Nationality will be considered as such until 16-10-2012. For his/her family member to be treated as an family member of an EEA national after 16-07-2012, they will need to meet the requirement of the transitional provision in Schedule 3.

I cant see much practical purpose in these people being considered as EEA national without the rights attached to such status for their family members. It seems very odd indeed.

This can only help EEA nationals who have qualification in another country and want to have those qualifications recognised in the UK.

Due to the ECJ judgement, the British Lawmakers feel they could do what the like, even if it lacks logic.

They have still not made any attempt whatsoever to implement Zambrano which was released considerably longer before McCarthy.

I conclude that Jambo is correct. For the benefit of non EEA family members, a dual national will not be recognised as an EEA national aftet 16-07-2012, but the dual national will for all other purpose,even for the issue of Registration Certificate be considered as such until 16-10-2012

[doratheexplorer]

I just got a reply from the European Operational Policy team from the UK border agency that clears all this up, here goes:

Schedule 3 of the Immigration (European Economic Area) (Amendment) Regulations 2012 (“the amending regulations”) sets out the transitional arrangements for persons affected by the amendment to the definition of EEA national in regulation 2(1) of the Immigration (European Economic Area) Regulations 2006.



The transitional arrangements allow for persons who are already residing in the United Kingdom on the basis that they are the family member of an EEA national who is also a UK national to continue to do so where they apply for a document confirming a right of residence before the transitional period ends on 16 October 2012.



Where a person was not already residing in the UK on 16 July 2012, they will only be eligible to benefit from the transitional arrangements set out in Schedule 3 where they had applied for an EEA family permit before 16 July 2012, and where they subsequently travel to the UK within the 6 month validity period of any EEA family permit issued as a result of that application.



Following the amendment to the definition of EEA national in regulation 2(1) of the Regulations, there is no provision to issue an EEA family permit to a family member of an EEA national who is also a UK national where such an application is submitted on or after 16 July 2012.



Please see Schedule 3 of the amending regulations for full details of the transitional arrangements for family members of EEA nationals who are also UK nationals.



I trust that this information answers your query satisfactorily.



Yours sincerely,



European Operational Policy Team

UK Border Agency.

[Naija]

Hi everyone.
Can someone,please confirm to me that these new changes to eea regulation of 2006 concern only dual eea and british citizens as well as non eea primary carers and parents of eea children?I read 2006 regulation upside down and wrote letter citing come stuff from it for my non eea husband's eea family permit as he is just about to apply for one from Italy ,so can i continue using 2006 regulation only,without adding amendments of 2012 as i am naturalised irish citizen living in dublin and my non eea husband is in italy,as these new amendments don't seem to concern our case and they are so confusing.I have no clue where to put which paragraph and subparagraph.
Thanks..

[Jambo]

only dual eea and british citizens as well as non eea primary carers and parents of eea children?

Correct.

If you are not British, then the chances don't affect you.

[Naija]

only dual eea and british citizens as well as non eea primary carers and parents of eea children?

Correct.

If you are not British, then the chances don't affect you.

Thanks for the answer.Much appreciated.Then i can use only 2006 eea regulations for my citations.

[Directive/2004/38/EC]

doratheexplorer

How did you ask and in what form did you get your reply from the "European Operational Policy Team"?

[doratheexplorer]

I got this reply by email from the European Operational Policy Enquiries
EuropeanOperational@homeoffice.gsi.gov.uk
I just asked for a clarification about the new regulations concerning dual UK/Irish citizens living in Northern Ireland.

[mastermind72]

In our case:

- Me (EEA Greek National exercising treaty rights, married to non-EEA wife)
- Applied for and given Residence Card one year ago for my wife (on an A4 sheet, as her passport was expired at that time)
- Concerned about the situation in Greece, I applied and I naturalized as a British Citizen (July 2012).

Two valid questions:

1. In order for the paper Residence Card to be "transferred" into my wife's passport, we want to reapply, providing all necessary documents. We cannot do this prior to 16 October. If we do so, will we now be considered as a brand new application and therefore not be able to go down the EEA route (as I now hold the British Nationality)?

2. After the 5 years elapse, and when my wife applies for her PR, will UKBA now say you cant use the EEA route as you have been a British National since 2012?

(Needless to say that I am not using the British Nationality at work or in any formal capacity).

Please advise.

T._

[Jambo]

In our case:

- Me (EEA Greek National exercising treaty rights, married to non-EEA wife)
- Applied for and given Residence Card one year ago for my wife (on an A4 sheet, as her passport was expired at that time)
- Concerned about the situation in Greece, I applied and I naturalized as a British Citizen (July 2012).

Two valid questions:

1. In order for the paper Residence Card to be "transferred" into my wife's passport, we want to reapply, providing all necessary documents. We cannot do this prior to 16 October. If we do so, will we now be considered as a brand new application and therefore not be able to go down the EEA route (as I now hold the British Nationality)?

2. After the 5 years elapse, and when my wife applies for her PR, will UKBA now say you cant use the EEA route as you have been a British National since 2012?

(Needless to say that I am not using the British Nationality at work or in any formal capacity).

Please advise.

T._

Two questions, one answer.


As you are already under the "old" rules, you will stay under the old rules.

A new application for RC would be considered a new application (so upto 6 moths wait) but under the old rules. Same applies to a PR Confirmation application.

[Directive/2004/38/EC]

In our case:

- Me (EEA Greek National exercising treaty rights, married to non-EEA wife)
- Applied for and given Residence Card one year ago for my wife (on an A4 sheet, as her passport was expired at that time)
- Concerned about the situation in Greece, I applied and I naturalized as a British Citizen (July 2012).

Two valid questions:

1. In order for the paper Residence Card to be "transferred" into my wife's passport, we want to reapply, providing all necessary documents. We cannot do this prior to 16 October. If we do so, will we now be considered as a brand new application and therefore not be able to go down the EEA route (as I now hold the British Nationality)?

2. After the 5 years elapse, and when my wife applies for her PR, will UKBA now say you cant use the EEA route as you have been a British National since 2012?

(Needless to say that I am not using the British Nationality at work or in any formal capacity).

Please advise.

T._

I don't think the new EEA rules will stand if challenged legally by somebody in a classic situation like yours. You are an EU citizen who has clearly exercised their treaty rights. Ms. McCarthy, in case C-434/09, was (1) not working or otherwise exercising any treaty rights and (2) had not previously asserted her Irish citizenship in a practical way, e.g. by holding an Irish passport.

See http://eumovement.wordpress.com/2012/07 ... y-british/ for a more extended discussion.

Just because somebody wrote it down as an amendment to a regulation does not mean it is legal!

[mastermind72]

Thank you.

Trying to be the devil's advocate here:

If you take into account the McCarthy case and decision and sticking to the pure definition on nationality (by birth) vs citizenship (acquired via naturalisation), could one argue that this change does not apply to EEA nationals, who still exercise treaty rights in Britain and have also naturalised as British Citizens, having completed 5 years in the uk?

T._

[Jambo]

Thank you.

Trying to be the devil's advocate here:

If you take into account the McCarthy case and decision and sticking to the pure definition on nationality (by birth) vs citizenship (acquired via naturalisation), could one argue that this change does not apply to EEA nationals, who still exercise treaty rights in Britain and have also naturalised as British Citizens, having completed 5 years in the uk?

T._

I don't think the UKBA will dispute that. If you have been living under the regulations before the change, you can still enjoy them.

The issue would be if a naturalised British (+ EEA national) would like to bring a new family member under the regulations. In that case, I suspect the UKBA view would be that a new application under the EEA regulations can't be made.

[Directive/2004/38/EC]

The issue would be if a naturalised British (+ EEA national) would like to bring a new family member under the regulations. In that case, I suspect the UKBA view would be that a new application under the EEA regulations can't be made.

I am sure that is the hope. But people will make the application, have it refused, they will appeal, and the appeal will likely be successful. I can not see this regulation standing when confronted with a good challenge.

[Directive/2004/38/EC]

Trying to be the devil's advocate here:

If you take into account the McCarthy case and decision and sticking to the pure definition on nationality (by birth) vs citizenship (acquired via naturalisation), could one argue that this change does not apply to EEA nationals, who still exercise treaty rights in Britain and have also naturalised as British Citizens, having completed 5 years in the uk?

I am not sure if I understand your argument.