The Citizens Directive is transposed into domestic law via The Immigration (European Economic Area) Regulations 2016 (the “2016 Regs”). You can find the 2016 Regs in an updated form online. It is generally more effective, at least at Tribunal level, to cite the 2016 Regs unless your argument depends on the difference between the Citizens Directive and the attempt to implement it in UK law.
The Explanatory Note that accompanies the 2016 Regs states that their intention is to consolidate their 2006 predecessor Regulations with certain judgments of the Court of Justice and address issues concerning the practical application of Directive 2004/38/EC within the United Kingdom. So although they may at times seem rather radical, it might be thought they are not intended to have any extreme consequences.
They generally entered force on 1 February 2017, although some provisions took effect sooner: the Home Office were so excited with their new provisions addressing so-called Surinder Singh cases (where a British citizen aims to rely on EEA residence rights having spent some time exercising Treaty Rights in another EEA Member State) that they introduced them on 25 November 2016.
The 2016 Regs are divided up into sections, each Part addressing a particular theme:
– General definitions, including those of the various class of persons who enjoy residence rights because of the exercise of free movement rights (Part 1)
– The various rights of residence that are owed people, depending on their circumstances (Part 2)
– The documentation process (Part 3)
– Refusal of admission and removal (Part 4)
– Procedures in relation to receiving decisions, including revocation of admission and the procedures regarding non-suspensive appeals (Part 5)
– Appeals (Part 6)
– Transitional and saving provisions (Part 7)
– Schedules addressing particular themes (such as transitional provisions, the early introduction of the new genuineness test for Surinder Singh cases, the provisions confirming that EEA permanent residence is akin to indefinite leave to remain for the purposes of a nationality application, and the powers of judges on appeal)
Notable features of the 2016 Regs are that:
– There is a clear statement that residence documents are effective only for so long as the underlying right prevails
– The provisions for expulsion of EEA nationals for public interest reasons have received significant amendment via the 2016 Regs. The 2016 Regs and supporting guidance also include various provisions on the cancellation, misuse and abuse of the right to reside
– The Surinder Singh route by which British citizens can obtain residence rights for family members via EEA law rather than the domestic Immigration Rules is subjected to a test of whether the Treaty Right exercise (ie work etc abroad in another EEA Member State) is considered genuine
– EEA nationals are expressly placed into the general regime for immigration control where they are not exercising Treaty Rights: there are now clear powers for their administrative removal and pre-removal detention, for example, under the Immigration and Asylum Act 1999 and Immigration Act 1971
– The theme of addressing perceived abuse runs throughout the Regs: eg there is now such a thing as a “durable partnership of convenience” defined (Reg 2), aiming to make it easier to target bogus claims to be in a durable relationship between unmarried partners
In general decision making that begun under the 2006 Regs is carried over to the 2016 Regs, via provisions mainly located in Schedule 6:
– For temporary admission to make submissions at an appeal against expulsion on public policy grounds (Sch 6 para 1)
– Effect is given to existing family permits and residence documents (Sch 6 para 2)
– For invitations to interview or to provide further information regarding the right to reside (Sch 6 para 3)
– For outstanding applications for all kinds of EEA document (Sch 6 para 4)
– For deportation and exclusion orders (Sch 6 para 5)
– For certification of appeals against expulsion on public policy grounds (Sch 6 para 6)
– Residence prior to the 2016 Regs should be taken into account (eg in permanent residence decision-making), both under the 2000 and 2006 Regs, and for prior periods of lawful leave where a person’s Member State of origin was not then a member of the EEA (Sch 6 para 8)
– Appeals begun under the 2006 Regs continue under the provisions of the 2006 Regs, both where there was an appeal pending on 31 January 2017 and where there was a right of appeal available to them under the 2006 Regs as at that date (ie where they had already received a decision that was appealable) (Sch 2 para 3: this piece of housekeeping was forgotten and had to be added by the 2017 amendment Regs)