Administrative Removal of EEA nationals and family members
On 29 March 2016, a new Instruction for Home Office staff was published:‘European Economic Area administrative removal: consideration and decision’. The guidance explains the operational process for assessing whether to administratively remove a European Economic Area (EEA) national (or a family member of an EEA national).
The guidance explains the criteria for the removal of an EEA national or their family member under section 10(1)(a) of the Immigration and Asylum Act 1999 under regulation 19(3)(a) or (c) of the Immigration (EEA) Regulations 2006. Reg 19(3)(a) applies where an individual either never had the right to reside (e.g. through sham marriage) or has no right to reside. In order to meet the reg 19(3)(b), ‘abuse of rights’ provision, the individual must have either: engaged in conduct intended to circumvent the requirement to be a qualified person; entered into, attempted to enter into, or assisted another person to (attempt to) enter into a marriage of convenience; have fraudulently obtained, attempted to obtain or assisted the (attempted) fraudulent acquisition of a right to reside under the EEA regulations; or have attempted to enter the UK within 12 months of being removed under reg 19(3)(a), and are unable to provide evidence upon re-entry, that the conditions for any right to reside, other than the initial right of residence, are met.
Taking all reasonable steps to ascertain whether the individual fits the EEA administrative removal criteria is likely to involve an investigation of each case on its own merits to determine the suitability of such a removal. Reasonable checks to be made by the caseworker of available sources of information to establish whether the person has a right to reside- such as checking the existence of an employer with Companies House. Adverse factual inferences about the entitlement of the EEA national or their family members to reside, are only to be drawn from failure on at least 2 occasions to attend a ‘minded to remove’ (MTR) interview or to provide sufficient information by the date set. The removal decision must not be based on the sole basis of the failure to comply. The guidance provides that only in clear cases on an initial encounter with an individual, will it be appropriate to dispense with a minded to remove letter and proceed straight to service of notice of liability to removal (IS 151A (EEA)) and notification of decision to remove (IS 151B(EEA)). In these cases the verbal statement or other evidence must be recorded in the officer’s notebook, reviewed and initialled by both the officer and the individual as part of the interview record.
The guidance makes clear that even where an individual fits the criteria for administrative removal, consideration must be given to: (a) the level of fraud or abuse (willing participant or acting under duress), (b) personal circumstances (age, health, family ties, length of residence, integration, economic situation), and (c) the type of decision being taken (the greater the effect the greater the emphasis on proportionality); so as to ensure that proportionality is maintained when taking a decision to administratively remove an EEA national or their family member.
Under reg 24(6), one calendar month (30 days) from date of notification of decision to remove by form IS 151B (EEA) must be given to an EEA national or their family member to leave the UK voluntarily. That period runs concurrently with the 14 day notification period to bring an in-country right of appeal against a decision to administratively remove and removal cannot take place while any in-country appeals are ongoing. A notice under section 120 of the Immigration, Asylum and Nationality Act 2002, as applied by the 2006 Regulations by The Immigration (European Economic Area) (Amendment) Regulations 2015, may be served where an EEA decision has been or may be taken in respect of that person, so as to require that person to provide a Statement to the Secretary of State of their reasons and grounds for being permitted to enter, remain in, or not to be removed from, the United Kingdom. Such grounds may include one of the tripartite grounds of appeal introduced to the 2002 Act by the 2014 Act: refusal of a human rights claim, a protection claim (humanitarian protection and asylum) and revocation of refugee or humanitarian protection status. A person who enjoys a right of appeal under the 2006 Regulations is not prevented from pursuing a separate appeal to the Tribunal under the amended 2002 Act, provided the criteria for doing so contained in that Act are met.
For expert advice in relation to challenging a decision to remove an EEA national or their family member, contact our direct access immigration barristers on 0203 617 9173 or via our online enquiry form.