Union Law and Kafka under the EEA Regulations

The Immigration (European Economic Area) (Amendment) Regulations 2015 (“the 2015 Regulations”), which enter into force on 6 April 2015, further amend the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”). Among other things, the 2015 Regulations aim to amend the transposition of Directive 2004/38/EC (“the Citizens’ Directive”) and implement the decision in Case C-202/13 McCarthy and Others ECLI:EU:C:2014:2450; they also aim to synchronise the 2006 Regulations with the new system of appeals produced by the Immigration Act 2014 (“the 2014 Act”) that will apply to all appeals from next month. Part 5 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”), which contains the appeals’ infrastructure in relation to immigration decisions, intersects with the appeals system established by the 2006 Regulations. With the arrival of the 2014 Act, and the reformulation of appeals’ framework, several provisions of the 2002 Act have been recast in a different form (see here). The 2015 Regulations were instantaneously denounced for shirking the responsibility of implementing other recent case law of the Court of Justice of the European Union (“CJEU”).

The overhaul of the appeals system under the 2014 Act stipulates that an appeal to the tribunal can be made in three instances: against the refusal of a human rights claim and a protection claim; and against the revocation of refugee or humanitarian protection status. Regulation 4 (amendments to the 2006 regulations) and schedule 1 paragraph 15 of the 2015 Regulations amend schedule 1 – relating to appeals to the tribunal – of the 2006 Regulations with the result that the amended appeals regime becomes applicable to EEA decisions:

as though the sole permitted ground of appeal were that the decision breaches the appellant’s rights under the EU Treaties in respect of entry to or residence in the UK (“an EU ground of appeal”).

Schedule 1 paragraph 16 of the 2015 Regulations amends schedule 2 paragraph 4 of the 2006 Regulations and sheds light on the mode in which a notice given pursuant to section 120 (requirement to state additional grounds for application) of the 2002 Act applies to an appeal under the 2006 Regulations. Notice may be served under section 120 where an EEA decision has been, or may be, made. A notified person must provide reasons and grounds for entry to, remaining in, or not to be removed from the UK and the grounds advanced may include one of the three grounds of appeal in the 2002 Act (as amended by the 2014 Act).

Schedule 1 paragraph 16 also inserts sub-paragraph (10) into schedule 2 paragraph 4 of the 2006 Regulations and allows an EU ground of appeal to be raised in reply to a section 120 notice or, with the Home Office’s agreement, as “a new matter” for the purposes of section 85(6) of the 2002 Act.

Schedule 1 paragraph 12 amends the 2006 Regulations to clarify that a person who enjoys a right of appeal under the 2006 Regulations is not prevented from pursuing a separate appeal to the Tribunal under the amended 2002 Act, provided the criteria for doing so contained in that Act are met.

Regulation 6 of the 2015 Regulations contains a transitional provision which specifies that the amendments to the 2006 Regulations made by paragraphs 11, 12, 13(c)(ii) and (iii) and (d), 15 and 16 of schedule 1 – relating respectively to interpretation of Part 6 of the 2006 Regulations, appeal rights, out of country appeals, appeals to the First-tier Tribunal and effect on other legislation – do not apply to an appeal against an EEA decision which was made before the implementation date of 6 April 2015.

Enforcement powers in 2006 Regulations are amended and schedule 1 paragraph 9 inserts a new regulation 23A (revocation of admission) which makes schedule 2 paragraph 6(2) of the Immigration Act 1971 (“the 1971 Act”) applicable to a decision to admit a person to the UK under the 2006 Regulations. The provision in schedule 2 paragraph 6(2) empowers immigration officials to cancel a notice giving leave to enter the UK within 24 hours of that notice being given. The application of paragraph 6(2) to EEA decisions by the 2006 Regulations allows a decision to admit a person to the UK to be revoked within 24 hours of that person’s admission, provided the conditions for refusing admission to the UK are met.

By amending regulation 24(4) of the 2006 Regulations, schedule 1 paragraph 10 of the 2015 Regulations allows immigration officials to treat as an illegal entrant, for the purposes of schedule 2 of the 1971 Act, certain persons who enter the UK without entitlement for admission (for example, covert/clandestine entry by a person excluded from admission under regulation 19(1) of the 2006 Regulations). Moreover, the powers under schedule 2 paragraph 6(2) as applied by the 2015 Regulations are exercisable by the Home Secretary and may apply to a person resident in the UK.

In order to implement the judgment of the CJEU in Case C-202/13 McCarthy and Others ECLI:EU:C:2014:2450 (see here), the definition of “qualifying EEA State residence card” is expanded by schedule 1 paragraph 1(b) of the 2015 Regulations to cover valid residence cards issued, not just by “Germany and Estonia”, but by “any EEA State, except Switzerland”.

In McCarthy, the CJEU held that neither article 35 of the Citizens’ Directive nor article of 1 Protocol No 20 (on the application of certain aspects of article 26 of the Treaty on the Functioning of the European Union to the UK and to Ireland) permit the UK, in pursuit of an objective of general prevention, to impose an European Economic Area (EEA) family permit on a third-country national family member of a Union citizen who possesses a valid residence card issued under article 10 of the directive by the authorities of another member state. In other words, the CJEU held that a third-country national family member of a Union citizen holding a residence card issued by a member state does not need to obtain a visa prior to entering another member state.

As regards interpretation of the Citizens’ Directive, the CJEU reiterated at paras 30–31 that in light of C-456/12 O. and B., EU:C:2014:135 and related case law, that the directive aims not only to facilitate the exercise of the primary and individual right – conferred directly on Union citizens by article 21(1), TFEU – to move and reside freely within the territory of the member states but that it also aims to strengthen that right. For the court, the scheme of the prevention of abuse is such that refusal, termination or withdrawal of a right given by the directive “must be based on an individual examination of the particular case” and in the absence of “an individual examination of the particular case” it was impermissible for member states to refuse entry to third-country family members of a Union citizen holding a valid residence card.

Before that Advocate General Szpunar said that the UK was unilaterally suspending freedom of movement. He reasoned that the numbers did not support a systemic abuse of rights and fraud case as made out by the UK. In particular, the Advocate General discerned that “the United Kingdom rejected, based on concerns about the authenticity of marriages, 176 applications for EEA family permits (out of 256 cases where abuse was suspected and which represent approximately 2% of the applications received in that period).”

Thus, the UK was hugely exaggerating the extent of fraud. It has also dragged its feet in implementing the McCarthy judgment by many months. The directive itself mentions nothing about an EEA family permit which, as manufactured by the UK, is a condition for entry which is additional to the conditions for entry provided for in article 5 of the directive. As Professor Peers explains:

On the other hand, the new Regulations do not implement other recent CJEU case law (discussed here) on what is known in the UK as the ‘Surinder Singh’ route. This is based on CJEU rulings which state that an EU citizen who moves to another Member State with non-EU family members can then return to his or her home Member State and invoke EU free movement law to ensure that this State admits his or her family members. The purpose of doing this is to avoid very restrictive rules on the admission of family members of British citizens into the UK, which are much more stringent than the EU free movement rules (Danish and Dutch citizens also use these rules).

The 2013 amendments to the Regulations state that this route can only be used where the ‘centre of life’ of the family concerned has shifted to another Member State. This is inconsistent with last year’s CJEU ruling, which requires only a three-month move to another Member State to trigger the rules. In practice, this test is then applied before an ‘EEA family permit’ is issued to the family member concerned, which allows that family member to reside in the UK with the UK citizen.

Since these parts of the Regulations have not been amended, and there is still provision for an ‘EEA family permit’ in the Regulations, presumably the intention is to continue to apply these rules to regulate the longer-term stay of UK citizens’ family members using the Surinder Singh route.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Appeals, Cases, Citizens Directive, CJEU, European Union and tagged , , , . Bookmark the permalink.

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