A raft of new Home Office policies and forms for EU and EEA nationals was released in early February, along with significant changes to the online application process. These changes accompany the Immigration (European Economic Area) Regulations 2016, which took effect for all applications from 1 February 2017.

I have been holding off writing up these changes to await expected new versions of the EEA(PR) and EEA(FM) forms but at the time of writing there was still no sign of these.

Hardening position on EU spouses and others

The hardening of position by the Home Office is over the status of EU nationals who live in the UK but do not have an EU right of residence or permanent residence. This includes many EU national spouses of British citizens. Why the Home Office is choosing now of all times to make such people unwelcome and even criminalize them is a complete mystery. It is cruel, unnecessary and almost certainly unlawful.

The latest version of the internal guidance to Home Office officials, European Economic Area (EEA) and Swiss nationals: free movement rights, published on 1 February 2017, says that such people are resident in breach of immigration laws:

Colette, a Belgian citizen, came to the UK for a holiday in August 2003 but then remained without permission or entitlement under community law. Any residence in the UK after her entitlement under community law came to an end was residence in breach of the immigration laws.

The position seems to be that an EU national has no right to be in the UK after three months of entry unless the EU national becomes a “qualified person” by working, being self employed or being self sufficient or a student in possession of comprehensive sickness insurance. Such as many spouses of British citizen who have not worked or been self employed for a continuous period of five years.

According to the new hardline Home Office guidance, such a person will be barred from naturalisation as a British citizen on good character grounds and logically would also be committing a criminal offence and be liable to up to 6 months in prison.

I suspect that the tougher approach is aimed at A8 and A2 nationals who are thought to be street homeless. There has been a dramatic increase in detentions and removals of this group, and some reports of others being caught up in the same scheme.

I really do not think the Home Office has thought through the logic and effect of its position on this, though. A very wide net has been cast and there is considerable bycatch. It seems unlikely that this approach would in fact be adopted against the spouse of a British citizen, but that just goes to show how legally weak and discriminatory the Home Office position really is.

Articles 20 and 21 of the Treaty on the Functioning of the European Union provide that “Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States…” Article 5 of Directive 2004/38/EC provides for an explicit right of admission in EU law. The “right of residence” is an additional right to acquire permanent residence, claim benefits and be accompanied by family members. Unless there are public interest reasons for excluding a person, such as because they claim benefits or commit crimes, an EU national can obviously be lawfully present in the territory of another Member State even without a formal right of residence.

If that isn’t an enforceable EU law right then I don’t know what is.

However, the Home Office hardening of position is evident elsewhere as well. In the latest regulations, the Immigration (European Economic Area) Regulations 2016, the Home Office has adopted a new power to curtail the right of entry and physical presence in the UK of EU nationals. Accompanying new guidance on misuse of rights and verification of EEA rights of residence includes a whole section on EEA nationals “who may be engaging in conduct intended to circumvent the requirement to be a qualified person.”

Updated guidance

The full list of updated guidance as at 22 February 2017 was as follows:

• EEA, Swiss nationals and EC association agreements (modernised guidance) (2 February 2017)
• EEA and Swiss nationals: free movement rights (2 February 2017)
• EEA decisions taken on grounds of public policy (2 February 2017)
• Certification guidance for non-suspensive appeals: EEA deportation (2 February 2017)
• Misuse of rights and verification of EEA rights of residence (1 February 2017)
• Removals and revocations of EEA nationals (1 February 2017)
• Free movement rights: retained rights of residence (7 February 2017)
• Processes and procedures for EEA documentation applications (14 February 2017)

The new guidance on process and procedure confirms that EU law applications made on or after 1 February 2017 must now be made on the long and complex forms provided by the Home Office or by using the online application process.

You can see the emphasis here in these updates on removals, deportation, misuse and verification. Meanwhile, virtually nothing has been done to make the process simpler, easier or clearer or to clarify ambiguities in a way that helps anyone. Indeed, the Home Office recently confirmed to the author in a Freedom of Information request that there is no additional guidance on what does or does not count as “comprehensive” sickness insurance.

Updated forms

The updated forms are as follows:

• Apply for a registration certificate or residence card for an extended family member: form EEA (EFM) (6 February 2017)
• Application for blue or yellow certificate for Croatian: form CR(1) (6 February 2017)
• Application for residence card (non-EEA family of Croatian): form CR(4) (6 February 2017)
• Application for purple certificate for Croatian: form CR(3) (6 February 2017)
• Application for derivative residence card in UK: form DRF1 (6 February 2017)
• Application for an accession residence card (non-EEA family of Croatian): form CR(5) (6 February 2017)
• Application for blue certificate for Croatian: form CR(2) (6 February 2017)
• Application to extend stay in UK: form ECAA1 Turkish working person (6 February 2017)
• Application to extend stay in UK: form ECAA2 Turkish businessperson (6 February 2017)
• Apply to extend stay in the UK as family of a Turkish national: form ECAA3 (6 February 2017)

At the time of writing there was still no update to the main forms, the EEA(PR) and the EEA (QP), although the online application process for these application types had been noticeably improved (see below).

Updated online process

The online application process for a residence or permanent residence document has been updated in two important ways:

1. Family members can now be included in the online process for applying for residence and permanent residence documents

2. A full list of all absences from the UK does not now have to be included in the online application process.

3. Periods of employment can be proven with just P60s and these will be treated as proving the continuous residence requirement as well, reducing the need to submit reams and reams of paperwork.

Instead of asking for every single trip abroad the equivalent question is now:

Time outside the UK

Have you spent more than 6 months outside the UK in total in any one year since you arrived in the UK?

Yes / No

To calculate time out of the UK, do not include the day you left the UK or returned to the UK. For example, if you were absent from the UK between 1 January 2014 and 31 January 2014, this means you were out of the UK for 29 days (2 January to 30 January inclusive).

Include single trips lasting over 6 months and multiple trips if these added up to more than 6 months in any one year

If relying on a period of employment, the process now asks, after details for the employer and salary have been entered:

Evidence of employment with a UK employer

If the employment details that you have provided cover your continuous 5-year qualifying period, can you provide P60 tax certificates from your UK employer(s) for this whole period?

Yes / No / Not applicable

Your ‘qualifying period’ can be any continuous five-year period where you’ve been in the UK and exercising your Treaty rights (in this case, working). If you can provide P60 tax certificates, this will save you from having to provide other evidence of living in the UK, such as utility bills or bank statements.

These changes to the application process are welcome developments, particularly for those relying on periods of employment. Items 3 and 4 in my list of eight improvements the Home Office can and should make right now to the process have been implemented, at least online. It is to be hoped that the simplification will also be extended to a new paper version of the EEA(PR).