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Which EEA Regulations Apply Post-Brexit?

Following the end of the transition period on 31 December 2020, EU law ceased to apply in the UK. However, aspects of the EEA Regulations continue to apply to certain individuals beyond the 31 December 2020 through a number of Statutory Instruments. Our previous blog post addressed the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 (‘the Temporary Protection Regulations’) and the question of who they would apply to. This blog post will address some of the provisions which will apply to those people, and additionally which parts of the EEA Regulations have been saved by The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 (‘the Savings Regulations’).

The Citizens’ Rights Regulations preserve the following provisions of the EEA Regulations:

Regulation 11 – right of admission to the United Kingdom

The right of admission to the United Kingdom for EEA nationals and their family members has been saved for those who meet the definition of a ‘relevant person’. However, paragraph 2(a), which provided that a family member of an EEA national could produce a valid passport and qualifying EEA State residence card on arrival in the United Kingdom, provided they were accompanying or joining an EEA national with a right to reside, no longer applies. A family member who meets the definition of relevant person therefore only has a right of admission if they meet the requirements of paragraph 2(b), which requires them to hold a valid passport and a valid EEA family permit, residence card, derivative residence card or permanent residence card issued by the UK. 

Paragraph 4 has also been omitted. This paragraph required an immigration officer to provide a person without one of the documents outlined above the opportunity to prove that they have a right of admission. This means, for example, that a family member of an EEA national may no longer prove their right to accompany or join the EEA national at the border. They will need to have applied for and obtained the relevant document in advance. 

Regulation 12 – issue of an EEA Family Permit

The provision for the issue of an EEA Family Permit has been saved, but with amendment that means, in the case of extended family members, the provisions will only apply to durable partners. This means that other extended family members, such as dependent relatives, can no longer apply for an EEA family permit. As with all of these provisions, only those who meet the definition of a relevant person can apply for an EEA Family Permit. In other cases, individuals should consider their eligibility for an EUSS Family Permit.

Rights of residence

The initial right of residence, right of permanent residence, extended right of residence and derivative right to reside have been saved, but as with all of these provisions, only for relevant persons, as defined in our previous blog post.

All of these rights to reside are subject to the possibility of refusal on grounds that a decision is conducive to the public good. As outlined below, this stems from the addition of Regulation 27A, and provides a lower threshold for refusal on character grounds than those previously in force. 

Refusal of admission and removal

Regulation 27 (decisions taken on the grounds of public policy, public security and public health) has been amended to include paragraph 27A, which states that an EEA decision may be taken on the ground that the decision is conducive to the public good, if a decision is taken in respect of conduct after 31 December 2020. This is a lower threshold than previously applied and has been added to the relevant regulations relating to exclusion and removal from the United Kingdom, refusal to issue or renew and revocation of residence documentation, cancellation of a right of residence and misuse of a right to reside.

There are additional savings provisions, including in relation to appeal rights and the procedures in relation to EEA decisions, that will continue to apply to the relevant individuals for the grace period. However, a practical question that will be arising for many will be what will happen to applications and appeals which were submitted under the EEA Regulations which were not decided prior to the UK’s departure from the EU. The answer to this question can be found in another statutory instrument – The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 (‘The Savings Regulations’).

Pending applications

Paragraph 3 of Schedule 3 the ‘Savings Regulations’ provides that pending applications for EEA Family Permits, registration certificates, residence cards, documents certifying permanent residence or derivative residence cards will continue to be considered and granted of appropriate so long as the application was made prior to 31 December 2020 (the ‘date of commencement’). This is notable given that the power to issue these documents does not appear in the saved provisions of the Temporary Protection Regulations.

Equally, an application made for one of these documents after 31 December 2020, where the provisions have been preserved by the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020, will be considered. In practice, the only document covered by the Temporary Protection Regulations is the EEA Family Permit, as outlined above. Specified provisions will also continue to apply for the purposes of the consideration of applications submitted prior to 31 December 2020.

Existing appeal rights and appeals

Paragraph 5 of Schedule 3 provides that specified provisions will continue to apply to an appeal which has been brought under the Immigration (European Economic Area) Regulations 2006 or the EEA Regulations 2016 and has not been finally determined before commencement day. The provisions will also apply to the rights of appeal against an EEA decision which was made before 31 December 2020, or an EEA decision by virtue of the Temporary Protection Regulations which may have taken place after that date.

Deportation and exclusion orders

These Regulations also address the position for those who are subject to a deportation or exclusion order made under the EEA Regulations. Paragraph 2 of Schedule 3 provides that a deportation order or exclusion order made or treated as having been made by virtue of the EEA Regulations 2016 continues to apply for the period specified by the order or until it is revoked. A new deportation order or exclusion order that has been made by virtue of the EEA Regulations 2016 as they continue to have effect by the Temporary Protection Regulations will also apply for the period specified or until revoked. 

The provisions contained in Regulations 34(3) to (6) in regard to the revocation of deportation and exclusion orders also continue to apply. These provisions, as they existed in the EEA Regulations 2016, stated that a person who was subject to a deportation or exclusion order may only  apply to the Secretary of State to have it revoked on the basis that there has been a material change in circumstances that justified making the order and it may only be made whilst that person is outside the UK.

However, the Savings Regulations add that, where a deportation or exclusion order has been made on conducive grounds under Regulation 27A (and therefore in respect of conduct committed after 31 December 2020), then the application for revocation will be considered in accordance with the immigration rules that apply in relation to an application for revocation of a deportation order made by virtue of section 3 of the Immigration Act 1971.

Conclusion

The saved provisions of the EEA Regulations are contained across a number of Statutory Instruments, including but not limited to those outlined above, and their application requires careful consideration of an individual’s circumstances. However, as is clear from the above, certain parts of the EEA Regulations do continue to live on in domestic law, albeit often in amended form and for a limited period of time.

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