Applying the new changes on the EU Reg 2006

Applying the new changes on the EU Reg 2006 – Non-EEA national family members of dual EEA and British citizens

EEA nationals who are also British citizens are not considered to be ‘EEA nationals’ for the purposes of the Immigration (European Economic Area) Regulations 2006 (‘the Regulations’). This applies whether or not the British citizen has always resided in the UK. A family member of a dual EEA national and British citizen does not have a right of residence under the regulations on the basis of their relationship to the dual national.

If they do not have a right of residence on any other basis under the regulations, they will need leave to enter or remain in the UK under the Immigration Rules.

Transitional arrangements

Transitional arrangements were put in place following amendments to the regulations in July 2012, which allowed family members of dual EEA and British citizens who had already relied upon a right of residence as the family member of that dual national to continue to enjoy a right of residence where the conditions set out below were met. Persons residing in the UK on 16 July 2012 Persons already residing in the UK on 16 July 2012 as family members of dual EEA and British citizens, and who held a valid registration certificate or residence card confirming this right on 16 October 2012 will continue to be treated as the family member of an EEA national for as long as they continue to be the family member of that dual national. This arrangement also applies where a person had a right of residence on this basis on 16 July 2012 and had submitted an application for a document confirming this right on or before 16 October 2012. Such persons will continue to have a right where a document is subsequently issued on the basis of this application.

Application on the changes in line with the McCarthy Changes

Article 5(2) of the Directive directs Member States to exempt non-EEA family members from visa requirements otherwise applicable under national law if they hold an EU valid “residence card” issued in accordance with Article 10 of the Directive. The UK has refused to do so because of concerns as to abuse of rights and fraud and the lack of uniform or minimum standards for “residence cards” issued by other Member States.

Under current UK law, all non-EEA family members, including those with “residence cards” issued in other Member States, are required to obtain an EEA “family permit” from the UK Border Agency prior to entering the UK. The “family permit“, which is granted for a period of six months, confirms entry clearance to the UK for the purposes of exercising the rights granted by the Directive. Non-EEA family members may also be admitted if they can otherwise establish their entitlement to enter the UK, to accompany or join their EU citizen family member.

Secretary of Stat’s legal arguments

The Secretary of State contends that the approach adopted by the UK is lawful on two bases:

(1) First, Protocol 20 to the Treaty on the Functioning of the European Union (“the Frontiers Protocol”) allows the UK to maintain at its frontiers with other Member States such controls as it may consider necessary for the purpose, inter alia, of verifying the right of citizens of Member States and of their family members to enter the UK; and

(2) Second, Article 35 of the Directive (“Article 35”) permits Member States to adopt the necessary measures to refuse, terminate or withdraw any right conferred by the Directive in the case of abuse of rights or fraud.

Acte clair

Secretary of State contend that the matter is acte clair in their favour and the Court should make the declarations sought. The Secretary of State contends that the matter is acte clair in her favour (at least on the basis of the Frontiers Protocol) and the Court should dismiss the application.

The Secretary of State also contends, in the alternative, that this case raises novel and important points of EU law of potentially wide application, which relate to some extent to the actions of other Member States, and which are the subject of parallel infringement proceedings being pursued by the European Commission.

In these circumstances, and to avoid a divergence of approach across the EU, the Court should refer to the Court of Justice of the European Union (“CJEU”) the question of whether the UK’s approach to non-EEA family members holding “residence cards” issued by other Member States is lawful, having regard to the matters set out in the Secretary of State’s evidence and the terms of the Frontiers Protocol and Article 35 of the Directive.

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