Everything You Need To Know About The New Immigration (European Economic Area) Regulations 2016 bannerEverything You Need To Know About The New Immigration (European Economic Area) Regulations 2016 banner


Everything You Need To Know About The New Immigration (European Economic Area) Regulations 2016

  • Posted on

By Oshin Shahiean of OTS Solicitors

On 1st February 2017 the new Immigration (European Economic Area) Regulations 2016 come into force, having being passed into law in November 2016.

The new regulations will bring in a number of changes that EEA migrants and their family members should be aware of. If you believe you will be affected by any of these developments, you should contact an Immigration solicitor to ensure you receive the best legal advice.

Tightening of the Surinder Singh Route (note – these changes affect all applications made after 25th November 2016)

For years the UK government has been desperate to clamp down on the ‘loophole’ which facilitates UK citizens and their foreign spouse to legally bypass UK Immigration laws, specifically in cases where a non-EEA national spouse does not meet the criteria set out by the Home Office.

The “Surinder Singh” route applies when a UK citizen resides temporarily and exercises their EU Treaty Rights in another EU country with their foreign partner, most commonly Ireland. When they return to the UK, the non-EEA national partner can apply for an EEA family Permit to reside under EU Law. The couple must have resided in another EU country for at least three months, but more often six to twelve months.

In 2014, the Immigration (European Economic Area) (Amendment) (No. 2) Regulations 2013 came into force, amending Regulation 9 of the Immigration (EEA) Regulations 2006, inserting a clause which stipulates that a British Citizen who is seeking to return to the UK with his spouse must not only have been economically active in another EU country whilst residing there with their spouse, but also have transferred the “centre of their life” to that EU state.

The case of O v The Netherlands (Case – C456/12) deemed that the “centre of life” clause was unlawful under EU law.

Under the new regulations, two new key requirements must be met for a spouse of an EEA national to legally enter the UK via the Surinder Singh route.

They are:

  1. The relocation to the EU country must be ‘genuine’. Factors such as the length of the couples stay and how much they integrated into their community will be taken into account by officials when assessing genuineness; and
  1. That your relocation to the EU country must not be a means of circumventing the national laws that your spouse/family member (non-EU national) would ordinarily be subject to.

Because these requirements breach the EU law, they are ripe for a legal challenge. It is likely that the Government however is relying on the fact the European Court of Justice will be so busy with Brexit related cases, this flagrancy will slip through.

Extended family members will lose their to appeal

Extended family members; siblings, uncles and aunts etc. and unmarried partners will have no right of appeal against a Home Office decision. This codifies the decision in Sala (EFMs: Right of Appeal : Albania) [2016] UKUT 411 (IAC).

This means any applicants who are refused an EU Family Permit or EU permanent residence Card will only have two options available to them; reapply if they have fresh evidence or challenge the decision by judicial review.

Applications for EU documents must be made on the prescribed Home Office forms

Applications for EU documents such as an EU permanent residence Card now must be made on the prescribed Home Office form and are required to be fully complete. The latter stipulation is likely to add more stress on EU nationals, many of whom are struggling to provide the documents required to support their assertion that they have been exercising EU Treaty rights in the UK for five years.

Many EU nationals living in the UK are turning to Immigration lawyers to manage their applications and provide them with the best chance of having their application accepted. With permanent residence Cards now taking around six months or more to issue, a refusal based on an incorrectly filled out form can lead to an even longer, frustrating delay.

Final words on the changes

It seems that now the British government has made it clear that Brexit is inevitable, it is not so concerned with keeping its new regulations in line with EU laws. Many of the changes go against not only EU directives, but also EU case law. However, the sad fact is, by the time a challenge reaches the European Court of Justice, Britain will be out of the EU and no longer subject to its jurisdiction.

OTS Solicitors is one of the most respected Immigration law firms in London. By making an appointment with one of our Immigration solicitors, you can be assured of receiving some of the best legal advice available in the UK today.

If you wish to discuss any of the points raised in this blog, please phone our London office on 0203 959 9123.

    Get in touch

    Please fill in the form and we’ll get back to you as soon as we can.

    This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.