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CJEU Cases and Changes to the EEA Regulations 2016

Written by Asad Ali Khan, 06 July 2018

The Immigration (European Economic Area)(Amendment) Regulations 2018 amend the Immigration (European Economic Area) Regulations 2016 in order to implement the effects of a string of judgments given by the CJEU. The new regulations come into forceon 24 July 2018. First of all, in line with the ruling in Gusa (C-442/16, EU:C:2017:1004), regulation 6 of the 2016 Regulations has been amended to provide that EEA nationals who are no longer working in a self-employed capacity retain their status as a self-employed person. In Gusa the CJEU held that article 7(3)(b) of the Citizens'Directive (2004/38/EC) must be interpreted as meaning that an EU citizen retains the status of a self-employed person for the purposes of article 7(1)(a) where, after having lawfully resided in and worked as a self-employed person in another member state for approximately four years, he has ceased that activity, because of a duly recorded absence of work owing to reasons beyond his control, and has registered as a jobseeker with the relevant employment office of the latter member state. Second, and very importantly, amendments have been made to the 2016 Regulations in order to give effect to the ruling in Lounes (C-165/16, EU:C:2017:862, see here and here) that under article 21 TFEU a non-EU national is able to benefit from a right of residence in the member state where his EU citizen family member resided before acquiring its nationality in addition to her original nationality.

The conditions governing the grant of the right of residence must not be stricter than those set out in the Directive. Overall, in Lounes, in November 2017, the CJEU embraced AG Bot's opinion that EU law does not take away with one hand that which it has given with the other. It has taken almost eight months for these changes to trickle down and become incorporated into the domestic UK immigration system. Somewhat ironically, with the UK set to leave the EU on 29 March 2019, the impact of these changes will be ephemeral because the EU Settlement Scheme (see here) will replace the present system by granting settled status and pre-settled status to EU citizens and their non-EU family members. InLounes the CJEU found that the rights article 21(1) TFEU confers on an EU citizen, including the derived rights enjoyed by her family members, do indeed intend to promote the gradual integration of the EU citizen concerned in the host member state's society. For article 21(1) TFEU rights – especially EU citizens' right to lead a normal family life with their family members in the host member state – to be effective they must provide coverage to citizens who had exercised their freedom of movement when leaving their home member state to move to the host member state whose nationality they acquired after becoming permanently resident there, and were the Directive's "beneficiary" until such acquisition.

The CJEU found that a person fitting the above description "must be able to continue to enjoy, in the host member state, the rights arising under that provision, after they have acquired the nationality of that member state in addition to their nationality of origin and, in particular, must be able to build a family life with their third-country-national spouse, by means of the grant of a derived right of residence to that spouse."

Therefore, the 2018 regulations achieve the changes resulting from Lounes by amending the definition of "EEA national" in regulation 2(1) of the 2016 Regulations and inserting a new regulation 9A to provide that a national of an EEA State who is also a British citizen, where British citizenship was acquired after the EEA citizenship and after Treaty rights had been exercised in the UK, may continue to be treated as an EEA national, subject to the requirements of new regulation 9A(2) to (4). The change can be extracted as:

New regulation 9A (Dual national: national of an EEA State who acquires British citizenship)

4. After regulation 9 insert–

9A. Dual national: national of an EEA State who acquires British citizenship

(1) In this regulation "DN" means a person within paragraph (b) of the definition of "EEA national" in regulation 2(1).

(2) DN who comes within the definition of "qualified person" in regulation 6(1) is only a qualified person for the purpose of these Regulations if DN–

(a) came within the definition of "qualified person" at the time of acquisition of British citizenship; and

(b) has not at any time subsequent to the acquisition of British citizenship lost the status of qualified person.

(3) Regulation 15 only applies to DN, or to the family member of DN who is not an EEA national, if DN satisfies the condition in paragraph (4).

(4) The condition in this paragraph is that at the time of acquisition of British citizenship DN either—

(a) was a qualified person; or

(b) had acquired a right of permanent residence in accordance with these Regulations..

There is a related transitional provision in regulation 3 of the 2018 Regulations.

Interestingly, under the approaching EU Settlement Scheme, which will become fully operational by 30 March 2019, it is still an open question whether persons possessing derivative rights of residence will be granted permanent status (indefinite leave to remain).

Third, the amending regulations also give effect to the judgment in O and B (C-456/12, EU:C:2014:135) by amending regulation 9 of the 2016 Regulations to provide that, in order to acquire a derived right of residence, a person must have had the status of "family member" within the meaning of article 2(2) of the Directive for at least part of their residence in a non-UK EEA member state with a British citizen exercising Treaty rights. O and B involved the question of the extent of stay in a host member state to acquire returnee status.

In O and B, it was held that article 21(1) TFEU must be interpreted as meaning that where an EU citizen has created or strengthened a family life with a third-country national during genuine residence, pursuant to and in conformity with the conditions set out in article 7(1) and (2) and article 16(1) and (2) of the Directive in a member state other than his own, the provisions of the Directive apply by analogy where the EU citizen returns, with the family member in question, to his member state of origin. Therefore, the conditions for granting a derived right of residence to non-EU family member in the EU citizen's home state, should not, in principle, be stricter than those provided for the grant of a derived right of residence to a non-EU family member of an EU citizen who has exercised his right of freedom of movement by becoming established in a member state other than the member state of origin.

Fourth, the new regulations also give effect to the judgment in Chavez-Vilchez and Others(C-133/15, EU:C:2017:354, see here) where it was held that a non-EU parent of a minor EU citizen child may rely on a derived right of residence. The reference involved several third country national mothers living in difficult circumstances in the Netherlands and in each instance applications for social assistance and child benefit were rejected for the reason that without a right of residence, the mothers did not have any right to receive such assistance and benefits under national legislation. The refusal of social assistance and child benefit were premised on a restrictive interpretation of the judgments in Ruiz Zambrano (C-34/09, EU:C:2011:124) and Dereci and Others (C-256/11, EU:C:2011:734).

In Chavez-Vilchez, the Netherlands contended that the mere fact that a non-EU parent provides daily care to the EU citizen child and that the child is legally, financially or emotionally dependent on the non-EU parent does not lead to the automatic conclusion that the EU citizen child would be compelled to leave EU territory if a right of residence were refused to her parent. However, the CJEU held otherwise and found that while the other EU parent's ability to assume sole responsibility for the child's care is a relevant consideration, it cannot on its own justify refusing a residence permit to the non-EU parent. The extent of the child's dependence on the non-EU parent must not be such as to compel the child to leave the EU upon the latter's exit from EU territory. The changes to UK law are achieved by amending regulation 16(8)(b) of the 2016 Regulations to allow a person to be recognised as a "primary carer" if they are the sole carer or if they share equally the care with another person, regardless of whether that person is an "exempt person" within the meaning of regulation 16(7)(c).

In Vomero (C-424/16, EU:C:2018:256, see here and here) the CJEU decided that permanent residence is a mandatory prerequisite of eligibility for enhanced protection. Moreover the 10 years' residence requirement, which is also mandatory for enhanced protection, may be satisfied where an overall assessment of the EU citizen's situation leads to the conclusion that despite any detention the integrative links between the citizen and the host member state have not been broken. Therefore, fifthly, the 2018 Regulations amend regulation 27(4)(a) of the 2016 Regulations, which provides that where an EEA national has been resident in the UK for a continuous period of 10 years they cannot be deported except on imperative grounds of public security. Consistent with the Vomerojudgment the amendment provides that enhanced protection only applies to a person who, as well as satisfying the qualifying period of residence, has a permanent right of residence in the UK.

The new regulations also make amendments to regulations 11, 13, 14 and 15 of the 2016 Regulations in order to clarify that a person does not have a right of admission to the UK or an initial right of residence, an extended right of residence or a permanent right of residence in the UK if they are subject to an exclusion order or a deportation order.

Moreover, regulation 21 of the 2016 Regulations has been amended to provide that an application for an EEA family permit or residence documentation is invalid if it is submitted when the applicant is subject to an exclusion order or a deportation order. It is also the case that regulation 12 of the 2016 Regulations has been amended to allow EEA family permits to be issued in an electronic format. Notably, amendments to regulation 21 of the 2016 Regulations mean that where a family member applies for an EEA family permit or residence documentation, the relevant EEA national's identity card or passport must accompany the application.

Furthermore, regulation 37 of the 2016 Regulations has been amended to clarify the circumstances in which a person must be outside the UK in order to bring an appeal against an EEA decision. There is a related saving provision in regulation 4 of the 2018 Regulations whereby despite the amendment to regulation 37 of the 2016 Regulations (out of country appeals), regulation 37 as in force immediately before the coming into force of the new regulations continues to apply to an appeal that is pending (within the meaning of regulation 35 of the 2016 Regulations, interpretation of Part 6).

About the author: Asad Ali Khan is BA, MSc, MA, LLB (Hons), BVC, LLM, Barrister-at-Law (Middle Temple), Advocate High Courts Pakistan. In addition to immigration, he works as international counsel in an English law firm and acts as a court expert in UK family law proceedings involving removal of children from the jurisdiction to Pakistan. He also writes frequently for The Company Lawyer on corporate conduct and governance related issues.

This blog post originally appeared on Asad Ali Khan's United Kingdom Immigration Law Blog and is reproduced here with permission and thanks.

Any views expressed are those of the author and do not necessarily represent the views of EIN