On 8 November 2012, UKBA published an announcement about the Changes to the Immigration (EEA) Regulations 2006, which come into effect today, 8 November 2012. The official announcement, which can be read here, has been copied below for your convenience.
The changes won’t affect the majority of the readers of our blog because the vast majority is resident overseas; the Changes to the EEA Regulations coming into effect on 8 November do not (not) affect applicants for EEA Family Permits overseas. This is with the exception of the durable partners of EEA Nationals, who have to ensure that, in order to be able to benefit from full appeal rights should their case be refused, they submit sufficient evidence of their relationship with the EEA National with their application (see below) and Extended Familymembers wishing to apply for EEA Family Permits, who, as a result of the amendment, no longer need to have resided in the same country as their sponsoring EEA National.
The main amendments to the EEA Regulations 2006 are:
- The requirement in Regulation 8.2.a that an Extended Family Member needs to have resided in the same country as their sponsoring EEA national to gain entry to the UK has been deleted. As a result, Extended Family Members no longer need to have lived in the same country as their sponsoring EEA national to gain entry to the UK. This amendment is based on the ECJ ruling in the case of Rahman (C83/11). You can read ECJ ruling C83/11 here.
- Primary and sole carers of British citizens now have rights to enter and reside in the UK. This amendment is based on the ECJ ruling in the case of Ruiz Zambrano (C34/09). In summary, in the Zambrano case, the ECJ ruled that Article 20 TFEU (=The Charter of Fundamental Rights of the European Union) is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen. A practical example would be the parents of children who would otherwise be displaced and lose out on their education, now qualify for leave to remain. You can read the full ECJ ruling on Zambrano here.
- Changes to the definition of ‘primary carer’ in relation to the derivative rights of residence given by the Ruiz Zambrano case. This means that whilst carers can stay in the UK with their dependants they cannot get permanent residence or sponsor family members. They are present in the the UK to look after their dependants only.
- Partners that are in a durable relationship (=a relationship that is akin to marriage, which has existed for a minimum period of two years) with an EEA National only get the full right of appeal against an EEA refusal if they have submitted sufficient evidence of their relationship with the EEA national with their application.
- Allowing the Secretary of State to accept alternative forms of identification where a person is prevented from providing this evidence due to circumstances beyond their control.
Does the Zambrano judgement affect visa applicants whose circumstances are similar to those described in the judgement but who currently reside outside the UK?
No, it doesn’t. There is no current provision for someone to apply for a visa to come to the UK solely on the basis of the Ruiz Zambrano judgement. Currently an applicant will need to qualify for a visa in another category of the Immigration Rules if they wish to come to the UK.
On 8 November 2012, the Immigration (European Economic Area) Regulations 2006 will change.
The amended regulations will set out the rights of EEA nationals and their family members to enter and reside in the UK and will also confirm the criteria for rights to permanent residence.
The key changes to the regulations include:
- removal of the requirement in regulation 8(2(a) that an extended family member must have resided in a country in which the EEA national also resides. This gives effect to the Court of Justice of the European Union (ECJ) judgment in the case of Rahman (C83/11)
- amendments to confer rights of entry and residence on the primary carer of a British citizen. This gives effect to the ECJ judgment in the case of Ruiz Zambrano (C34/09)
- amendments to who is to be regarded as a primary carer for derivative rights
- amendments to regulation 26 so that a person claiming to be the durable partner of an EEA national may only appeal where they have provided sufficient evidence of the relationship with that EEA national
- amendments to enable the Secretary of State to accept alternative evidence of identification and nationality where a person is unable to provide a valid ID card or passport due to circumstances beyond their control.
A right to reside in the UK on the basis of ECJ judgment in Ruiz Zambrano does not stem directly from Directive 2004/38/EC and is therefore referred to as a ‘derivative right’. 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 are not eligible to acquire permanent residence in the UK, or to sponsor family members in to the UK once they have acquired a right to reside.
A new application form for persons applying on the basis of Ruiz Zambrano will be available on our website shortly. Until this form is published, applicants must complete form EEA2 (see right side of this page) and include a covering letter explaining the reason for their application. Applicants should post the form and letter to this address:
UK Border Agency
PO Box 306
Guidance for applicants will be available on our website soon. This will be published in the European nationals section.