The Immigration EEA Regulations 2018 (European Economic Area) (Amendment) will come into force on 24 July 2018. These amendments are mainly based on a number of cases decided by the European Court of Justice.
Surinder Singh
In 2014, in the case of case of O and B V Netherlands, ECJ allowed non-EU family members of British citizens to rely on already existing “Surrender Singh” route, on coming to join their loved one in the UK where:
- the British citizen was exercising treaty rights in another EEA country or acquired the right to permanent residence there
- the applicant and the British citizen resided together in that other EEA country
- their residence in the EEA country was genuine
- The Regulations are amended such that, in addition to the above, an applicant relying on this route must show that “genuine family life was created or strengthened during their joint residence in another EU member state”.
Dual nationals
In the case of Lounes, it was decided by the ECJ that EU citizens who move to the UK and later obtain British citizenship will retain their free movement rights under EU law. This is against the SSHD’s position since 2012 after the case of McCarthy that British citizens who also hold the nationality of another EU country cannot rely on the EEA Regulations when sponsoring their family members and instead, have to rely upon Appendix FM of the immigration rules.
The Regulations are now amended to reflect the judgment in Lounes. The statement of intent of 21 June 2018 also confirms the same therefore this change will also be applicable after Brexit.
Retaining self-employed status
In ECJ’s decision on Gusa, has now brought self-employed status are in line with the conditions under which an EEA citizen can retain worker status. The advantage of this change would be
- that the person is considered to be “exercising treaty rights”
- and continue to live lawfully in the UK
- have access to certain benefits
- able to have family members join them in the UK
- and can count time towards the five years’ residence needed to acquire permanent residence.
Self-employed EEA citizens can now retain that status where they are temporarily unable to work as the result of an illness or accident or they are in involuntary unemployment after having been self-employed persons, provided that they:
- registered as jobseekers
- entered the UK as self-employed or to seek self-employed work, or were in the UK seeking employment or self-employment immediately after having enjoyed a right to reside as self-employed, self-sufficient or student
- provide evidence of seeking employment or self-employment and having a genuine chance of being engaged
In addition, they are involuntarily no longer self-employed and are doing vocational training or voluntarily stopped being self-employed in order to do vocational training related to their previous occupation
Primary carers of EEA nationals
The EU regulations have always provided a route to obtain the right of residence for certain primary carers of EEA nationals. Under 2016 regulations primary carer was always considered to be the sole carer or someone who shared equal responsibility with someone who did not have a right to reside under the EEA Regulations, the right of abode or indefinite leave to remain in the UK (commonly known as an “exempt” person).
Following the case of Chavez-Vilchez and others, the definition of a primary carer is widened. It now includes those who share responsibility equally with someone else even if that person is an “exempt” person,
There are some changes in exclusion and deportations orders and some other minor changes which are not discussed here.
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