Significant portion of Regulation 9 ruled unlawful

[manicminer]

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.

[Casa]

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.

[Obie]

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

[manicminer]

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.

[vinny]

Unfortunately, it appears to be part of the UKVI's hostile environment against a whole lot of people.

[ninmurai]

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.

[noajthan]

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

...

Black Friday.

[MrSlyFox]

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

https://www.gov.uk/government/uploads/s ... Law-v3.pdf

[MrSlyFox]

New Free movement rights: Direct Family Members of EEA Nationals

https://www.gov.uk/government/uploads/s ... als-v4.pdf

[Obie]

For goodness sake, please stop doing this.

This thread Is about the legislative changes and analysis.

Can you please refrain from uploading guidance.

[alphagear]

Looks like Eind case has been scrapped.

[mkhan2525]

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

[manicminer]

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?

[Sunnyday123]

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?

[MrSlyFox]

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

[noajthan]

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

This topic is about legislation - not guidance notes.

[vinny]

The Guidance instructs caseworkers on the UKVI's interpretation of the EEA regulations.

The EEA regulations are based on UKVI's interpretation of Directive 2004/38/EC and caselaws.

[noajthan]

They are indeed.
And yet moderator Obie has evidently created the topic to focus on the legislation (rather than guidance which has no binding effect).

[vinny]

Of course, if the UKVI misinterprets Directive 2004/38/EC and caselaws, then the EEA regulations and their subsequent instructions for caseworkers will be inconsistent with the courts' interpretation.

The latest European regulations are consolidating—they are wonderful from that point of view—but we have seen provisions in them that, on their face, we simply think are unlawful. There are provisions on the abuse of rights that run directly contrary to the judgment of the Court of Justice in Akrich. We simply anticipate that the sums have been done that we will not get to the Court of Justice to challenge those provisions before we have left the EU. That is a worrying tendency and exaggerates an existing trend.

[Obie]

Of course, if the UKVI misinterprets Directive 2004/38/EC and caselaws, then the EEA regulations and their subsequent instructions for caseworkers will be inconsistent with the courts' interpretation.

The latest European regulations are consolidating—they are wonderful from that point of view—but we have seen provisions in them that, on their face, we simply think are unlawful. There are provisions on the abuse of rights that run directly contrary to the judgment of the Court of Justice in Akrich. We simply anticipate that the sums have been done that we will not get to the Court of Justice to challenge those provisions before we have left the EU. That is a worrying tendency and exaggerates an existing trend.

That is precisely my view.

I am sure my dear friend Noajthan, was not seeking to throw any aspersion on my views, in regard to the interplay between the regulation, guidance and EU legislative provision and the CJEU caselaws, even though it may have appeared so on a partial reading of his post.

[noajthan]

For goodness sake, please stop doing this.

This thread Is about the legislative changes and analysis.

Can you please refrain from uploading guidance.

It should be clear my contribution was to support a co-moderator's wish to focus on legislation in this topic.

[mkhan2525]

For goodness sake, please stop doing this.

This thread Is about the legislative changes and analysis.

Can you please refrain from uploading guidance.

It should be clear my contribution was to support a co-moderator's wish to focus on legislation in this topic.

Perhaps the title of this thread should be changed to allow wider discussion on the new changes.

Whether the legislation is lawful or unlawful is highly irrelevent to a HO caseworker who is instructed to follow the guidance when determining such cases as the guidance sets out HO policy even if it is unlawful.

It is for the courts to interpret legistlation and apply the law correctly should an incorrect decision be appealed.

[Obie]

For goodness sake, please stop doing this.

This thread Is about the legislative changes and analysis.

Can you please refrain from uploading guidance.

It should be clear my contribution was to support a co-moderator's wish to focus on legislation in this topic.

Agreed. The title of this post will not be changed. If anyone wishes to deal with other issue they must open their own thread.

[secret.simon]

Would application of the new EEA Regulations (in the abstract and not in specific cases) be in scope of the discussion of this thread or should that occur in a separate thread?

[manicminer]

Would application of the new EEA Regulations (in the abstract and not in specific cases) be in scope of the discussion of this thread or should that occur in a separate thread?

You could speculate, abstractly, about how the Regulations would be applied, but what purpose would it serve?

It seems to me that this thread is essentially about a discussion of their legality in the light of EU case law and serves as useful discussion for anyone dealing with appeals issues.

Specific cases, specifically, example refusal letters, highlight more effectively the reality of the application of the new Regs as well as the application of the new guidelines - I guess that would be off-topic and deserves a thread of its own - it would be of far more relevance to readers at the application stage.