Is new The Immigration Regulations 2016 retrospective?

[tmonaghan]

Is new The Immigration Regulations 2016 retrospective?

Also Antonissen C-292/89
21 In the absence of a Community provision prescribing the period during which Community nationals seeking employment in a Member State may stay there, a period of six months, such as that as laid down in the national legislation at issue in the main proceedings, does not appear in principle to be insufficient to enable the persons concerned to apprise themselves, in the host Member State, of offers of employment corresponding to their occupational qualifications and to take, where appropriate, the necessary steps in order to be engaged and, therefore, does not jeopardize the effectiveness of the principle of free movement. However, if after the expiry of that period the person concerned provides evidence that he is continuing to seek employment and that he has genuine chances of being engaged, he cannot be required to leave the territory of the host Member State.

I mean events that happened back in 2015 when they were in compliance with the Immigration Regulations 2006. Now Immigration Regulations 2016 changes the whole process because Directive 2004/38/EC - Article 6 gave me the right to move with almost unqualified rights and for any purpose for up to three months. Including for example the right to accompany my now British Citizen Husband; as a EU Citizen, in the knowledge that I will not be left behind in Lisbon until he established himself first with a place to live and a job in London.

If “Article 6” did not give the EU national the right of residence on the territory of another Member State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport; such rights could be inhibited or effectively denied. So from arrival in the UK the EU citizen exercises a right of residence for the first three months whether he or she is working or not. There are no conditions on this residence for the first three months.

Now The Immigration Regulations 2016 includes the three months provided by Article 6 for job seeking and then allow jobseekers to register with the jobcentre Plus from the fourth month to claim jobseeker's allowance for three months.

Is this not twisting the rules?

Thank you,

Trevor

[secret.simon]

See the Home Office interpretation of Antonissen on Page 10.

[tmonaghan]

Thanks secret.simon

I read that publication before and it make sense in line with The Immigration Regulations 2006 and this was published for Home Office staff on 25 November 2016.

The Immigration Regulations 2016 has come into force since the 1st of February 2017 so what the HO does to work around the Antonissen C-292/89 case is the following:

European Economic Area nationals: qualified persons Version 4.0
Jobseekers; page 9
Relevant period
For jobseekers, the relevant period is 91 days (3 months) minus the total of any days during which the person concerned previously enjoyed a right to reside as a jobseeker, unless that previous period was prior to a continuous absence from the UK of more than 12 months.

An EEA national who enters the UK to look for work will have the initial 3 month, unconditional period of residence, conferred by regulation 13 and then the period of 91 days as a jobseeker, providing they are actively seeking work and have a genuine chance of being engaged.

In other words an EEA national who enters the UK to look for work will usually have a 3 month initial right of residence, followed by 91 days (3 months) as a jobseeker, provided the criteria are met. A jobseeker may have access to benefits for this 91 day period of residence as a jobseeker.

At the end of the 91 day period as a jobseeker the person will be required to provide compelling evidence, that they are actively seeking work and have a genuine chance of being engaged. If the person cannot satisfy this requirement then they cease to have a right of residence as a jobseeker and consequently cease to have access to benefits.

An EEA national who has not entered the UK as a jobseeker but who is already resident in the UK and becomes a jobseeker immediately after enjoying a right to reside in another capacity (for example a student who ends their course of study and looks for work) will have a right of residence as a jobseeker for 91 days (3 months.)

This is providing they are actively seeking work and have a genuine chance of being engaged. If an EEA national has previously had a right of residence in the UK as a jobseeker, that previous period of residence should be deducted from the relevant period, unless it was prior to a continuous absence from the UK for more than 12 months.

Basically it is a direct challenge to the ECJ interpretation of Antonissen C-292/89

Thanks,

Trevor

[rooibos]

I asked a similar question some time ago:

http://www.immigrationboards.com/eea-ro ... l#p1246797

[tmonaghan]

Thanks Rooibos....

However Supported Case Law Antonissen C-292/89 –
THE DECISIONS OF THE CJEU TAKE PRECEDENCE OVER NATIONAL JUDGMENTS AND MUST BE FOLLOWED IN SO FAR AS THE MATTER IS ONE WITHIN THE SCOPE OF EU LAW. THE NATIONAL COURTS ARE THEREFORE BOUND BY THE INTERPRETATION OF THE COURT. THE SAME IS TRUE FOR OTHER PUBLIC AUTHORITIES.

“1. The free movement of workers enshrined in “Article 48” of the Treaty entails the right for nationals of Member States to move freely within the territory of the other Member States and to stay there for the purposes of seeking employment. The period of time for which the person seeking employment may stay may be limited, but, in order for the effectiveness of “Article 48” to be secured, persons concerned must be given a reasonable time in which to apprise themselves, in the territory of the Member State concerned, of offers of employment corresponding to their occupational qualifications and to take, where appropriate, the necessary steps in order to be engaged.”

In the absence of a Community provision prescribing the amount of time, it is not contrary to Community law for the legislation of a Member State to provide that a national of another Member State who entered the first State in order to seek employment may be required to leave the territory of that State (subject to appeal) if he has not found employment there after six months, unless the person concerned provides evidence that he is continuing to seek employment and that he has genuine chances of being engaged..”

21 In the absence of a Community provision prescribing the period during which Community nationals seeking employment in a Member State may stay there, a period of six months, such as that as laid down in the national legislation at issue in the main proceedings, does not appear in principle to be insufficient to enable the persons concerned to apprise themselves, in the host Member State, of offers of employment corresponding to their occupational qualifications and to take, where appropriate, the necessary steps in order to be engaged and, therefore, does not jeopardize the effectiveness of the principle of free movement. However, if after the expiry of that period the person concerned provides evidence that he is continuing to seek employment and that he has genuine chances of being engaged, he cannot be required to leave the territory of the host Member State.

22 It must therefore be stated in reply to the questions submitted by the national court that it is not contrary to the provisions of Community law governing the free movement of workers for the legislation of a Member State to provide that a national of another Member State who entered the first State in order to seek employment may be required to leave the territory of that State (subject to appeal) if he has not found employment there after six months, unless the person concerned provides evidence that he is continuing to seek employment and that he has genuine chances of being engaged.

The CJEU decision in Antonissen is relevant in this context since the Court held that where an EU national has a reasonable chance of finding employment he or she is entitled to reside on the territory of the Member State. 1 This reasonable chance cannot be limited to three or even six months but must be assessed in light of the relevant circumstances. Directive 2004/38 has codified this aspect of the Court’s case law in article 14(4)(d).