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)

As already indicated, this course does not aim to explain the whole basis of EEA free movement law. So for now we will just give a brief explanation of how the 2016 Regs treat the key characters in EEA law: qualified persons (from whom EEA rights tend to flow), their family members, and those with retained or derivative residence rights based on links with people who were formerly qualified persons but have now died or left the UK, or a divorce has left the former family member with custody of a child.

Some of the propositions underlying the 2016 Regs are contestable – ie they may not accurately reflect European Union law. However we generally leave discussion of such issues to our more advanced courses on EEA law. We would recommend always reading the Home Office guidance that runs alongside the forms for making EEA applications.

Qualified persons and their family members

Qualified persons are (Reg 6)

– Jobseekers (who may only retain this status for 91 days: thereafter they need to show “compelling” evidence of their chances of finding work, though the UT in MB [2016] UKUT 372 AAC explained that the ultimate question was always whether there was a genuine chance of being engaged)

– Workers

– The self-employed

– The self-sufficient

– defined under Reg 4(1)(c) read with Reg 4(3) as those not at risk of requiring public funds during their stay either for themselves or for any family member whose UK residence is dependent upon them – they are to be regarded as self-sufficient if they possess such funds as would prevent a British citizen being eligible for social assistance or if the decision maker in any event thinks they have enough to live on (Reg 4(4))

– they must additionally possess comprehensive sickness insurance cover (CSIC) for themselves and any relevant family members (Reg 4(1)(c)(ii) and Reg 4(3))

– Students defined under Reg 4(1)(d)

– as those enrolled at publicly funded or otherwise recognised establishments,

– with comprehensive sickness insurance cover (Reg 4(1)(d)(ii)) for themselves and relevant family members (Reg 4(3))

– who have assured the Home Office that they have sufficient resources not to be at need of public funds during their studies: sufficiency being defined as for the self-sufficient (Reg 4(4))

The self-employed will enjoy that status only so long as they are offering services.

Retention of worker status

However workers enjoy special protections (Reg 6(2)) whereby they do not lose that status during periods of

– Temporary unemployment due to illness/accident

– Duly recorded involuntary unemployment having worked here and having registered as a jobseeker, so long as they entered the UK to seek employment or are seeking employment having previously been another kind of qualified person (but not a jobseeker)

– so long as they provide evidence of seeking employment and have a genuine chance of being engaged, and after six jobless months, they must provide “compelling” evidence of having a chance of finding work;

– and if they have worked in the UK for less than a year, they can only retain “worker” status for six months (Reg 6(3))

– Involuntary unemployment where they have begun vocational training;

– Voluntary unemployment where they left work to pursue vocation training related to their previous employment.

Example                                                                                                

Rouven is from Belgium and has been working in the UK for 1 1/2  years, full time, as a runner for media companies in the West End. He is paid very low wages and manages this by sharing a rented room with two other people. Back home he had been a camera man on a small local TV news channel and following his work in London he knows that post-production is where his future lies. He lets his fixed-term contract expire after he is accepted onto an NVQ in media post-production with a view to an apprenticeship in the field.  

Under Reg 6(2)(e) Rouven retains worker status despite having ceased working voluntarily, because he has embarked on vocational training. Should he need to prove his right to reside he could do this by applying for a registration certificate on form EEA(QP) by paper, online or in person by making an appointment at a ‘premium service centre’ (formerly called public enquiry office) . EEA nationals pay only the £65 fee for this service although appointments may not be available soon. The evidence Rouven would need to show is

• – A letter from his former employer confirming the nature of the former employment and that this has ceased
• – A letter from his training provider confirming the type of training enrolled on and Rouven’s actual attendance
• – Any information, in addition to the above, to show that the training is related to the former employment

The main benefit of retaining worker status, aside from continuing to live ‘in accordance with the Regulations’ for permanent residence purposes later, is that Rouven will not be barred from supplementing his income with benefits from time to time while he is studying, if no bursaries are available.  However, if he is voluntarily unemployed, he cannot claim JSA and if he studies full time he will not be entitled to any benefits at all. Someone in Rouven’s situation would theoretically, be better off retaining his worker status under Reg 6(2)(d) instead, by embarking on vocational training after becoming involuntarily unemployed, and to study part time while working part time. His retention of worker status would allow

Family members are, generally (Reg 7)

– Spouse/civil partner

– Direct descendants of both the qualified person and their spouse/civil partner (ie children and maybe grandchildren) under the age of 21 or dependent

– Dependent direct relatives in the ascending line (parents/grandparents) of the qualified person and their spouse/civil partner

These family members are sometimes referred to as “close” family members to distinguish them from the extended family members recognised in Reg 8.

However the family members who may reside with students (after the initial right of residence has passed) are more limited: just their

– Spouse/civil partner, and

– Dependent child (Reg 7(2)).

Extended family members

Extended family members are (Reg 8)

– Relatives of an EEA national who have been, or are, dependent on the EEA national or a member of their household (Reg 8(2))

– A relative of an EEA national whose care they strictly require on serious health grounds (Reg 8(3))

– A relative of an EEA national who would meet requirements elsewhere in the Immigration Rules (mainly adult dependent relatives who have to scale the heights of the requirements of the Immigration Rules at Appendix FM Section EC-DR, which requires proof of long-term personal care needs which are simply not available or affordable abroad) but lack entry clearance: ie a waiver of the need to obtain entry clearance in advance (Reg 8(4))

– Partner in a durable relationship (Reg 8(5))

However, simply showing that one meets the definition of “extended family member” only takes the applicant so far. Both family permits and residence cards will be issued only if the decision maker thinks that it is “in all the circumstances … appropriate” to do so (see Regs 12(4) and 17(5): so there will be need for a fact-based enquiry into all the circumstances, particularly the extent of the dependency between the various family members and the extent to which the EEA national’s exercise of Treaty Rights might be discouraged if a residence card was not issued (which essentially comes down to whether they would face a quandary as to whether to leave the UK and live elsewhere were the applicant not granted residence rights).

Once an extended family member is accepted as such by the Home Office, they are in future treated as if they were a (core) family member (Reg 7(3)).

The 2016 Regs define extended family members more narrowly than did the 2006 Regs, which included relatives not only of the EEA national but also of their spouse/civil partner (contrast Reg 8(2)(a) in the two sets of Regs). However, anyone who received residence documents based on the broader relationship before 1 February 2017 and has been continuously resident in the UK thereafter can still qualify.

Example                                                                                                

Gerhard is an Austrian national who works and resides in the UK with his Brazilian wife Patricia, who works as an editor from home. The couple have been sending regular financial support to Patricia’s parents in Brazil to support them generally as their pensions are too meagre to cover their basic needs, and extra sums to assist them in looking after Patricia’s sister Laura who is disabled.

Patricia however wants to lend more practical support to her ailing parents and in February 2016, she assists her parents and her sister to apply for family permits to join Gerhard and her in the UK. The application necessarily includes a lot of evidence and takes some time to be processed, but the family permits were issued with 6 months’ validity in September 2016 and Patricia’s parents and her sister Laura travel to the UK in October 2016. 

In February 2017, all three apply for residence cards as family members.  Under Reg 7(1)(c) of the 2006- as well as the 2016 Regulations, Patricia’s parents were and remain direct family members in that they are dependent relatives in the ascending line of an EEA national or his spouse.

However, the new Reg 8 which commenced 1 February 2017 excludes extended family members of the EEA national’s spouse (i.e. Laura) from that date. Reg 8(7) exempts from this those issued with residence documentation before 1 February 2017 and continuously resident since issue of these. Laura fits within this provision as on 1 February 2017 she held a valid family permit.

The residence card applications are supported by up to date evidence of Gerhard’s employment as well as evidence of all family relationships and dependency, and residence cards are issued to all three.

Especially Laura’s rights of residence in the UK are precarious and if advising this family, it would be vital to impress upon them the importance of

• – Gerhard’s continued exercise of treaty rights
• – an application for confirmation of Gerhard’s permanent right of residence as soon as these accrue (to simplify future applications for Patricia and her family members)
• – Gerhard seeking legal advice regarding the effect on residence rights of Patricia and her family members before contemplating naturalisation
• – an application for further documentation, in particular for Laura before her document expires, because valid documentation is now a vital link keeping Laura within the ‘family members’ category in Reg 7(3)(b)