Personal Immigration

Immigration (European Economic Area) Regulations 2016 - Commencement and General Interpretation

The new Immigration (EEA) Regulations 2016 were laid before Parliament on 3 November 2016. They consolidate many of the previous changes, but also make important changes, including in relation to the Surinder Singh route, which will be addressed in separate posts.

Regulation 1 sets out the commencement – the Regulations take effect from 25 November 2016 for Regulation 44 and Schedule 5, and from 1 February 2017 for the remainder.

Regulation 2(1) on General Interpretation removes reference to the Immigration Act 2014, and the Accession Regulations of 2004.

Many amendments were made, some designed to take into account the Sala decision of the Upper Tribunal to remove the right of appeal for extended family members, and others to address relationships of convenience. Some new definitions were added, which may give some indication of how the Home Office will approach permanent residence and long residence applications.

The following amendments were made:

Relationships of convenience

  • Civil partnership of convenience:

“civil partnership of convenience” includes a civil partnership entered into for the purpose of using these Regulations, or any other right conferred by the EU Treaties, as a means to circumvent—

a) immigration rules applying to non-EEA nationals (such as any applicable requirement under the 1971 Act to have leave to enter or remain in the United Kingdom); or

b) any other criteria that the party to the civil partnership of convenience would otherwise have to meet in order to enjoy a right to reside under these Regulations or the EU Treaties;

  • Durable partnership of convenience:

“durable partnership of convenience” includes a durable partnership entered into for the purpose of using these Regulations, or any other right conferred by the EU Treaties, as a means to circumvent—

a) immigration rules applying to non-EEA nationals (such as any applicable requirement under the 1971 Act to have leave to enter or remain in the United Kingdom); or

b) Any other criteria that the party to the durable partnership of convenience would otherwise have to meet in order to enjoy a right to reside under these Regulations or the EU Treaties;

  • Marriage of convenience:

“marriage of convenience” includes a marriage entered into for the purpose of using these Regulations, or any other right conferred by the EU Treaties, as a means to circumvent—

a) immigration rules applying to non-EEA nationals (such as any applicable requirement under the 1971 Act to have leave to enter or remain in the United Kingdom); or

b) any other criteria that the party to the marriage of convenience would otherwise have to meet in order to enjoy a right to reside under these Regulations or the EU Treaties;

Documents – Residence Cards and Registration certificates

  • Derivative Residence Cards are issued under the new Regulation 20 rather than Regulation 18A;
  • Permanent Residence Cards are issued under the new Regulation 19(2) rather than Regulation 18;
  • Registration Certificates are issued under the new Regulation 17 rather than Regulation 16;
  • Residence Cards are issued under Regulation 18 rather than Regulation 17;
  • Documents certifying permanent residence are issued under Regulation 19(1) rather than Regulation 18.

Definitions – amendments

  • The definition of “EEA decision” is now a decision under these Regulations that concerns—

a) A person’s entitlement to be admitted to the United Kingdom;

b) a person’s entitlement to be issued with or have renewed, or not to have revoked, a registration certificate, residence card, derivative residence card, document certifying permanent residence or permanent residence card (but does not include a decision that an application for the above documentation is invalid);

c) a person’s removal from the United Kingdom; or

d) the cancellation, under regulation 25, of a person’s right to reside in the United Kingdom, but does not include a decision to refuse to issue a document under regulation 12(4) (issue of an EEA family permit to an extended family member), 17(5) (issue of a registration certificate to an extended family member) or 18(4) (issue of a residence card to an extended family member), a decision to reject an application under regulation 26(4) (misuse of a right to reside: material change of circumstances), or any decisions under regulation 33 (human rights considerations and interim orders to suspend removal) or 41 (temporary admission to submit case in person);

  • “exclusion order” means an order made under regulation 23(5) rather than Regulation 19(1B)
  • “qualifying EEA State residence card” means a valid document called a “Residence card of a family member of a Union Citizen” issued under Article 10 of Council Directive 2004/38/EC(8) (as applied, where relevant, by the EEA agreement) by any EEA State (except Switzerland) to a non-EEA family member of an EEA national as proof of the holder’s right of residence in that State;

The following definitions were introduced:

  • “derivative right to reside” means a right to reside under regulation 16;
  • “Common Travel Area” has the meaning given in section 1(3) of the 1971 Act;
  • “indefinite leave”, “immigration laws” and “immigration rules” have the meanings given in section 33(1) of the 1971 Act;
  • “right to reside” means a right to reside in the United Kingdom under these Regulations (or where so specified, a right to reside under a particular regulation).

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