Immigration (European Economic Area)(Amendment)(No.2) Regulations 2013

A guide to the amendments to the EEA regulations

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Overview

The Immigration (European Economic Area)(Amendment)(No.2) Regulations 2013 comes into force on 01 January 2014 and introduces changes to the following areas:

• Jobseekers and the retention of worker status• Surinder Singh applications• Verification of a right to reside• Abuse of rights and fraud

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Jobseekers

Previous position:

• Regulation 6(2) was only interpreted to apply ‘on-entry’.

• A person would only be treated as a jobseeker after they first entered the UK seeking work, but before they were first employed.

• Those who voluntarily left work to seek alternative employment were not treated as jobseekers.

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Jobseekers

Revised position:

• Someone who voluntarily leaves employment, without retaining worker status, can revert to being a jobseeker without needing to leave and re-enter the UK, provided that they are genuinely seeking employment and have a real chance of being engaged.

• This position has been included in the amendment as a result of the Upper Tier Tribunal case of Shabani (EEA – jobseekers; nursery education) [2013] UKUT 00315 (IAC).

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Jobseekers

Revised position:

The definition of ‘jobseeker’ in regulation 6(4) has been amended in line with Shabani. A jobseeker is now a person who:

• entered the UK in order to seek employmentor

• is in the UK seeking employment immediately after being a qualified person under regulation 6(1)(b)-(e); and• can provide evidence to demonstrate that they are seeking work and have a genuine chance of being engaged.

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Retention of Worker Status

Revised position:

Under the revised regulation 6(2)(b), a person may only retain worker status if he satisfies one of the two following sets of criteria:

If the EEA national has been in employment for at least one year:

• the EEA national must have registered as a jobseeker with the relevant employment office; and• the EEA national entered the UK in order to seek employment; or• the EEA national is in the UK seeking employment immediately after being a qualified person under regulation 6(1)(b)-(e); and• there is a genuine chance of the EEA national being engaged.

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Retention of Worker Status

If the EEA national has been in employment for less than one year:

• the EEA national must have registered as a jobseeker with the relevant employment office; and• the EEA national entered the UK in order to seek employment; or• the EEA national is in the UK seeking employment immediately after being a qualified person under regulation 6(1)(b)-(e); and• there is a genuine chance of the EEA national being engaged.

The difference with the above being that regulation 6(2A) states that worker status can be retained for a maximum of six months.

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Surinder Singh

Previous position

• A British citizen could exercise Treaty rights as a worker or self-employed person in another EEA member state and a non-EEA national family member could qualify under European law on this basis

• The British citizen was not subject to any minima or maxima on how long the exercise of Treaty rights took place in that EEA member state.

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Surinder Singh

Revised position

The normal consideration process will not change, so the British citizen must still have been exercising Treaty rights, as either an employed or self-employed person, in another EEA member state.

However, the amendment to the EEA regulations includes regulation 9(2)(c), which imposes a duty on the British citizen to prove that they had transferred the centre of their life to the EEA member state in which they were exercising Treaty rights.

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Surinder Singh

Transferral of the centre of life

Regulation 9(2)(c) imposes a duty on the British citizen to prove that they had transferred the centre of their life to another EEA member state.

Regulation 9(3) provides a list of factors that must be taken into account when considering whether the British citizen had transferred the centre of their life. This list includes:

• the period of residence in the EEA state as a worker or self-employed person• the location of the British citizen’s principal residence• the degree of integration of the British citizen in the EEA state

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Surinder Singh

Transferral of the centre of life

Period of residence in the EEA state as a worker or self-employed person

Generally, the longer the British citizen has been exercising Treaty rights in another EEA member state, the more likely it is that they will have transferred the centre of their lives.

There is still no minimum time period that must be spent in the host member state and all cases must be assessed on their own merits.

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Surinder Singh

Transferral of the centre of life

Principal residence

The principal residence is the place and country where the British citizen’s life is primarily based.

‘Primarily’ does not mean ‘solely’ – e.g. you cannot refuse if the British citizen returns to the UK regularly, so long as their principal residence is in another EEA member state.

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Surinder Singh

Transferral of the centre of life

The degree of integration of the British citizen in the EEA member state

There are many factors that may indicate the degree of integration, examples may include:

• Does the British citizen have any children born in the host member state? If so, are the children attending schools in the host member state?• Does the British citizen have any other family members resident in the host member state? • Has the British citizen immersed themselves into the life and culture of the host member state? For example, have they bought property there? Do they speak the language? Are they involved with the local community?

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Surinder Singh

Transferral of the centre of life

Consideration

The more factors there are present from the previous three slides, the more likely it will be that the British citizen has transferred the centre of their life to the host EEA member state.

If you are not satisfied that this criterion is met, the application can be refused under regulation 9(2)(c). Applications refused under this regulation will attract an in-country right of appeal under regulation 26.

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Verification of a right to reside

New provision

The EEA regulations were amended to include a provision for the Secretary of State to refuse, revoke or, where appropriate, remove a person where they either fail to provide evidence to substantiate their claim, or attend an interview when invited to do so.

This provision can be found at regulation 20B.

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Verification of a right to reside

Application

Regulation 20B applies where the Secretary of State:

• has reasonable doubt as to whether a person (“Person A’’) has a right to reside as a qualified EEA national or as the family member of an EEA national who is a qualified person or has permanent residence (regulation 20B(1)(a)); or

• wants to verify the eligibility of a person (also referred to as “Person A”) to apply for any EEA residence documentation (regulation 20B(1)(b)).

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Verification of a right to reside

Regulation 20B(1)(a)

Regulation 20B(1)(a) applies where the Secretary of State has reasonable doubt as to whether a person has a right to reside under regulation 14(1) or (2)). This power may be engaged at any point, even where there is no application for documentation, providing there are “reasonable grounds” to doubt a person’s right to reside under the Regulations.

For example, whilst no application for documentation has been made, as a result of intelligence reports there are reasonable grounds to suspect an EEA national is not in fact working as claimed. In these circumstances the EEA national may be asked to either provide evidence of their work (such as payslips or an employment contract) or attend an interview to help verify their claim.

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Verification of a right to reside

Regulation 20B(1)(b)

In contrast, regulation 20B(1)(b) is only engaged where an application for documentation is made. Whilst there should be some basis on which to ask for additional information there is no requirement for the case worker to have reasonable doubt.

For example, an EEA national has applied for permanent residence. He has submitted 4 years evidence of self-employment but has failed to submit the final year’s business accounts. You decide to write to the applicant asking them to supply this information in order to verify their right to PR.

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Verification of a right to reside

Powers under 20B(1)

Under either 20B(1)(a) or (b) the Secretary of State may invite ‘Person A’ to:

• provide evidence to support the existence of a right to reside, or to support an application for documentation; or• attend an interview with the Secretary of State.

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Verification of a right to reside

Where the right to reside is on the basis of a relationship with another person

In addition, if ‘Person A’s’ claim to have a right to reside is on the basis of a relationship with another person ( “Person B’’), the Secretary of State may invite ‘Person B’ to:

• provide information about their relationship with ‘Person A’; or• attend an interview with the Secretary of State.

For example, a person is applying for a residence card based on their marriage to an EEA national. The Secretary of State may invite the EEA national spouse to an interview to establish the relationship and verify the claim.

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Verification of a right to reside

Failure to comply

In line with regulation 20B(4), the Secretary of State may draw any factual inferences about ‘Person A’s’ entitlement to a right to reside if, without good reason, a person fails to:

• provide the additional information requested; or • attend an interview on at least two occasions, if so invited

This means that if there is other evidence to suggest that the person does not have a right to reside, then combined with the failure by that person to provide evidence to substantiate their claim, it can be considered on the balance of probabilities, that the person does not have, or ceased to have, a right to reside under the Regulations.

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Verification of a right to reside

Caveat

It is important to note that the Secretary of State must not decide that a person does not have, or ceased to have, a right to reside on the sole basis that the person failed to comply with this regulation. There must be additional grounds to suggest there is no right to reside; in practice these will be usually be the grounds which prompted the request for additional information or attendance at interview.

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