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New guidance issued for EU free movement and Surinder Singh cases


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Several new guidance documents on EU law free movement cases have been published by the Home Office over the last few days. They are:

EEA family permits: guidance for entry clearance officers. This is an entirely new document aimed at Entry Clearance Officers abroad on how to assess and decide applications for EEA family permits. It includes a significant section on family members of British citizens which is probably the main point of the new guidance. It rather focuses on when not to issue family permits rather than when they should be issued and how quickly.

Free movement rights: direct family members of EEA nationals. This is an update to an existing document. The accompanying notes say that the material on British citizens exercising Treaty rights have been moved to a separate document (see below) and otherwise it has been reformatted and “minor changes” made.

Free movement rights: family members of British citizens. This is a new document. It gives guidance to officials on how to decide applications for a residence card made by family members of British citizens, i.e. Surinder Singh applications. It applies the new regulations which took effect on 25 November 2016 which morphed the “centre of life” test into one of “genuine residence” and added a new “purpose of residence” test as well. Read these sections if you are planning on making an application. I will be updating my post on Surinder Singh applications and the ebook as soon as I can.

EEA case law and appeals. This is 62 pages of “modernised” (i.e. virtually unreadable and unusable) guidance. The rather opaque notes unhelpful suggest it has been updated with reference to the non existent “Immigration Regulations 2016 changes”. Looking through, the Saint Prix case on maternity leave is now included, if it was not before. As previously, the write ups of O and B v Netherlands (C-456/12 and C-457/12) and McCarthy (C-434/09) are surprisingly accurate given how obviously inconsistent the regulations are. The tribunal case of Barnett on whether a family member needs to include the passport of the EEA national is included, which is good, but so is the case of Seye on self sufficiency, which has been superseded by important later CJEU cases which do not get a mention, namely Kuldip Singh (C-218/14) and NA (C-115/15).

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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.