The UK Government has announced changes to the Immigration (European Economic Area) Regulations 2006 which will come into force from the 16th July 2012.
The Regulations have been amended to give effect to the judgments of the Court of Justice of the European Union (ECJ). The Court establishes new rights to enter and reside in the UK and restricts the terms on which free movement rights can be exercised.
Rights to reside in the UK on the basis of ECJ judgments are referred to as ‘derivative rights’ because they do not stem directly from Directive 2004/38/EC. This means that the recognition of this right by the UK is not equal to rights under the directive.
This also means that those who acquire derivative rights will not qualify for permanent residence in the UK, or to sponsor family members to live in the UK once they have acquired a right to reside
A full statement detailing these changes can be viewed here. We have summarised the new rules on Rights of Residence and Free Movement as follows.
We will explain other key changes in a separate news item.
1) New Rights of Residence
New Regulation 15A sets out the conditions which must be satisfied before a person qualifies for a derivative right of residence on the basis of the ECJ judgments in Chen (C-200/02), Ibrahim (C-310/08) and Teixeira (C-480/08).
The following categories of people are provided for in regulation 15A:
- primary carers of self-sufficient EEA national children
- children of EEA national workers or former workers where the child is in education in the UK
- primary carers of children of EEA national workers or former workers where that child is in education in the UK, and
- dependent children under the age of 18 of the primary carers in each of the categories listed above
Those who satisfy the conditions of new regulation 15A may qualify for a derivative residence card if applying within the UK under new regulation 18A, an EEA family permit if overseas under amended regulation 12 or may assert a right to enter at the UK border under amended regulation 11(4).
Guidance on the application process can be viewed here.
2) Restrictions on Free Movement Rights
Following the ECJ judgment in McCarthy (C-434/09), the definition of “EEA national” has now been amended. This case confirmed that the provisions of the Directive are not applicable to an EEA national who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State.
An EEA national will now be defined in amended regulation 2(1) as “a national of an EEA State who is not also a United Kingdom national”.
The Regulations have also been amended to give effect to the judgment in Lassal (C-162/09), as further revised by the judgment in Dias (C-325/09). The amended Regulations now allow for EEA nationals to rely upon continuous periods of residence of 5 years spent in accordance with earlier instruments of European Law when assessing the requirements for permanent residence under the 2006 Regulations. However, such residence may only be relied upon where the conditions governing a right of residence have been satisfied throughout the relevant period but subject to certain conditions relating to absences leading to loss of the right of residence.