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Amendments to EEA regulations on rights of residence


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Amendments to the Immigration (European Economic Area) Regulations 2006 (commonly known as the EEA regs) have been laid and will mainly come into force on 16 July 2012. The amendments are at SI 2012/1547.

Firstly, there is no sign of any attempt to tackle Zambrano yet.

The main change is the very belated (eight years is a new record, surely) incorporation of Chen [2004] EUECJ C-200/02 into the EEA regs. However, the bad news is that a new category of residence called ‘derivative residence’ has been created with its very own new ‘derivative residence card’. This type of residence will never qualify the person for permanent residence. This is of highly questionable legality and challenges are likely.

Similarly, Ibrahim [2010] EUECJ C-310/08 and Teixeira [2010] EUECJ C-480/08 are also incorporated.

The effect of the judgments in Lassal [2010] EUECJ C-162/09Dias [2011] EUECJ C-325/09 and Ziolkowski and Szeja v Germany [2011] EUECJ C-424/10 have also been amended in: residence under or in accordance with previous regulations will now count towards permanent residence.

The bizarre attempt to impose normal immigration rule requirements on obtaining a family permit to allow entry to the UK has been abandoned. The original rule actually remains at 12(1) but a new rule has been added at 12(1A) that renders the original otiose.

The retained rights of residence rules have been amended to include references not only to qualified persons but also to EEA nationals with a right of permanent residence.

The definition of ‘EEA national’ has been amended to eliminate dual nationals who are British citizens. Some transitional arrangements are put in place for those who relied on the previous understanding of the law, though.

Lastly, various tweaks are also made to appeal rights, but I cannot immediately see any major significance to these.

If you spot anything else of any significance, do leave a comment below.

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.


14 Responses

  1. Will read it and compare articles present and future when I get around to it.

    Implementing McCarthy is hardly suprising and normal in many EEA states.

    Acceptance of RCs issued by other member states when the couple travel together, as warned by the Commission, is still missing.

    Many potential or actual illegalities, eg. excluding a spouse when a “duarable partner” is present in the UK.

    The invention of a “derivative residence card” is a flagrant violatuion of the directive which exclusively lists residence documentation.
    Placing the parent under the EEA rules, it logically leads to permanent residence. either way, member states are not free to rule on the matter, rather courts and the EU.

    And of course no word on Zambrano.

    For what it’s worth appeal rights are determined and set out in the directive, member states may not contradict them.

    1. Re: For what it’s worth appeal rights are determined and set out in the directive:
      the Directive actually does not mention the right of appeal at all – which is extremely frustrating for those who fall outside the right of appeal under the Regulations. Please correct me if I am wrong.

  2. “Firstly, there is no sign of any attempt to tackle Zambrano yet.”

    The regulations are the UK’s implementation of the directive. Zambrano rights are not derived from the directive so it doesn’t surprise me that it is not included.

    That does not excuse the failure to implement it in some other way (SI or similar order)

    1. Ah ha, but see latest post and s.109 2002 Act, which gives the power to make regulations about any right under the Treaties: https://freemovement.org.uk/2012/06/27/appealing-a-zambrano-decision/. It makes sense to incorporate into the EEA regs. Also, in correspondence with ILPA UKBA has confirmed its intention to include Zambrano in the regulations – but they still haven’t worked out what to do. That last bit is paraphrased.

  3. Does anyone have any ideas if Derivative Right of Residence will encompass the right to work? Until now Chen parents were issued with a residence permit with condition precluding employment or recourse to public funds and not leading to entitlement to settle other than on long residence basis. The latter explicitly remains in force, what about the right to work?

  4. I’m no expert but haven’t heard that the HO intends to allow the right to work, indeed that might be the reason for the invention of a different document without legal basis.

    Whether Chen leads to PR is something which the courts will almost certainly one day rule on, perhaps the ECJ too.

  5. Before these latest UK amendments to the EEA regulations came about, my solicitor had informed me that we were indeed allowed to work and she could get me written confirmation to that effect when I needed it. So I would think we can work, but I couldnt find explicit or indeed implicit reference to it in the amendments.

  6. “Hard to see how this can be sustained.”


    Your article contains some possibilities without reference to relevant law.
    “It is not even totally clear that these Dutch children could now legally enter the UK using their Dutch passport.”

    This is a matter of ROA (evidenced by passport or ROA stamp) for British Citizens and rules on entry for non-British citizens, see Immigration and Nationality Act 1971 and immigration rules. It doesn’t depend on the EEA Regs.

    Many countries require dual citizens to enter with that country’s passport anyway, eg. United States, South Africa and in the EU Germany and Poland, so such a rule would not be unusual and has not, at EU level, been challenged at the ECJ. (In practice a dual British/German citizen would be able to enter Germany with a British passport if the German citizenship goes unnoticed but it is against the law not to possess a German passport/ID card and McCarthy confirms that this applies despite the British passport, as 2004/38 doesn’t apply to the person in their country of citizenship.)

    “Parliament could legislate that all citizens of other EU member states are now also British citizens.”
    No, grants of citizenship to persons not present on the nation’s territory are a matter of international law and convention and require a basis (spouse, previous residence, descent, public service), see on that issue Hague Conference on PIL 1932 and ICJ Nottebohm 1955 (Liechtenstein vs Guatemala). Any deviation by the British Gov’t would require attention to these issues and objections by other govt’s could easily be upheld at the ICJ. This is also why the rules on issue of travel documents to migrants without passports are strict and similar everywhere.

    Also worth referring to is the international “Master Nationality Rule” about which you can also find info in Vol 2 of the HO nationality instructions.

    The ECJ ruled on it once, against Spain, from memory a couple of decades ago, saying that for dual EU/non-EU nationals the EU nationality is the master nationality inside the EU, overriding any contravening sections of member state private international law. There have been no rulings on the possession of two EU nationalities though.

    (The need for such has been greatly reduced anyway by Brussel II on family law, where forum shopping based on nationality may previously have been a bigger issue. Also the ECJ has ruled on personal status law, ie. when EU states are to allow their citizens changes based on changes in other EU states. So not much is or could be new here.)

    There is also the European Convention on Nationality, a convention of the Council of Europe binding on signatories and nothing to do with the EU Regs. It provides methods and parameters according to which signatories regulate acquisition and loss of citizenship, conforming to the existing international law.

    1. P.S. I believe spouses in genuine marriages should receive leave to remain based on that alone. That would be the ideal solution and is managed in a couple of countries. Or do as Belgium and Portugal and voluntarily apply the EU Regs (or similar) to family members of their own nationals even though they don’t have to, to eliminatre reverse discrimination.

      However unfortunately, there seems no avenue other than Singh and Carpenter for dual British/other-EU national to have their family members come under the EU rules.

      I wouldn’t be surprised if there are in future a lot more Carpenter-based applications and appeals. This has nothing to do with dual citizenship of course, but opens potential for Britons in the UK who provide services in the EU.

  7. “EEA national” means a national of an EEA State who is not also a United Kingdom national”

    so Irish Citizens, who only hold Irish passports, and only see themselves
    as Irish and who are born in Northern Ireland now become British only

    Oh this will not end well…… what a stupid thing to write into UK Law,
    nullifying and voiding the GFA

    Good Friday Agreement
    (vi) recognise the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they may so choose, and accordingly confirm that their right to hold both British and Irish citizenship is accepted by both Governments and would not be affected by any future change in the status of Northern Ireland.

  8. How does the GFA have anything at all to do with people who are neither Irish nor British (ie. non-EEA family members of residents of Northern Ireland)? It contains no provision on nationality family members, or nationality of any other migrants, who are neither British nor Irish. Nobody is questioning the right of people in Northern Ireland (or anywhere else in the world where such dual citizens may be) to hold Irish and British citizenship.