Government unveils plans for EEA nationals after Brexit

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26 June 2017

Brexit may mean Brexit, but permanent doesn’t seem to mean permanent.

In proposals about the status of EEA nationals after Brexit that were published today, the government has said that everyone – even those who already have documentation confirming that they have acquired the right of permanent residence in the UK – will have to apply for a new status – either a ‘settled status’ or a ‘temporary status’.

Whether this will remain the government position, or will change during the course of the negotiations, remains to be seen, but it is unlikely that the EEA leaders will agree to the proposals in their current form.

 

EEA appeals restricted to EEA law

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22 May 2017

The Court of Appeal has confirmed that when an EEA application is refused the appeal can only be about whether or not the decision was correct under EEA law.

Human rights issues cannot be raised at the appeal, unless a separate human rights application has been made under UK law, or if the Home Office issue a ‘section 120 statement’, requiring the applicant to state any other reasons they might have for wanting to stay in the UK.

 

Changes to the Immigration Rules and new EEA Regulations

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07 November 2016

This week has seen the announcement of changes to both the Immigration Rules and the EEA Regulations.

Immigration Rules

The most important changes are:

  • The removal of the 28 day ‘grace period’ – at the moment, an application that is submitted up to 28 days after a person’s leave expires isn’t rejected solely because it is late, but from 24 November 2016 this grace period will be removed.  After that date any out of time application will be rejected on that basis alone, unless it is submitted within 14 days of the person’s leave expiring, and is for ‘reasons outside their control’.
  • This has been on the cards for a long time – a second English test, at a slightly higher level (A2 CEFR), will be required for anyone applying for an extension of their leave as a partner or parent of a settled person if their current leave expires on or after 01 May 2017.
  • The minimum salary requirement under Tier 2 is to increase.

EEA Regulations

EEA law in the UK is set out in the Immigration (EEA) Regulations, which have been in force since 2006, and which have been changed a number of times.  These will be replaced, on 01 February 2017, by new regulations – the Immigration (EEA) Regulations 2016.

While the new regulations are, for the most part, very similar to the old regulations, and merely consolidate them, there are some important changes:

  • EEA applications must be made in a ‘prescribed manner’ – presumably this means that the application forms will now be mandatory
  • The ‘Surinder Singh’ route for the families of British citizens will be more difficult, as the Home Office can refuse applications if the main purpose of the move overseas was to circumvent UK immigration law
  • Only blood relatives of an EEA national will be able to apply as an ‘extended family member’ – until now, it has been the blood relatives of an EEA national or of his or her spouse

No right of appeal for extended family members

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30 September 2016

It isn’t often that the lawyers representing an appellant and the lawyers representing the Home Office find themselves on the same side, but this was one of those times.

The lawyers on both sides argued that “extended family members” – the unmarried partners and relatives of EEA nationals – should have a right of appeal if their applications were refused.  The Tribunal, however, disagreed.

The reason for the Tribunal’s decision is the wording of the EEA Regulations, which say that an “EEA decision” is one that concerns an entitlement to enter the UK, or to be issued with documentation confirming a right to live in the UK under EEA law.  As extended family members don’t have an entitlement under EEA law, but are granted at the discretion of the Home Office, the Tribunal has held that there is no right of appeal if the application is refused.

The Home Office could have chosen to amend the wording of the EEA Regulations, but instead their policy guidance has been updated to reflect the removal of the right of appeal. This means that all appeals currently in the Tribunal will be rejected as invalid, even though they were lodged when there was a right of appeal.

Brexit – what now?

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27 June 2016

Brexit – the vote to leave the European Union has, naturally, led to a lot of uncertainty.  There has been a lot of speculation and worry as to what will happen to EU citizens living in the UK and to UK citizens living in Europe.  This is a brief outline of the position:

Immediate changes

There won’t be any.  The UK is still a part of the EU, and will be for at least the next two years.

The process of leaving the EU is set out in Article 50 of the Treaty of the European Union.  It has never been used before so no one is quite sure how it will work, but the process doesn’t begin until the UK government makes a formal statement / application to start the leaving process.

On the UK side, there is no hurry to do this – the Prime Minister has said that this is a matter for his successor, and Boris Johnson, who was a leading campaigner for Brexit, has also said that there is no hurry to begin.  EU ministers, on the other hand, say that there should be no delay, and the UK should start proceedings this week.

Whenever the process begins, for two years from that date the UK will continue to be a part of the EU, and nothing will change in terms of the rights of free movement.

EU citizens already in the UK

Until the UK leaves the EU, there is no change in status.  It is not clear what will happen after that, but it is most likely that some sort of transitional arrangements will be put in place for people to be granted leave under the UK Immigration Rules once the UK leaves the UK.

The details of how this will work is still unknown, and it could be that different applications will need to be made depending upon whether someone already has permanent residence under EU law, was here before the vote, or comes to the UK between the vote and the time that the UK actually leaves.  This is, however, just speculation at this point of time.

EU citizens coming to the UK after Brexit

Until Brexit actually happens – that is, until the UK actually leaves the EU – there is no change in the status of EU nationals coming to the UK. What happens after that is just speculation, but probably, people will need to apply for permission under the Immigration Rules if they want to live and work or study in the UK.  It is very likely that people coming on holiday or short visits will still be able to travel freely.

The present Immigration Rules regarding students and workers are likely to be changed, but the government will have more immediate priorities at the moment.

UK citizens living in Europe

Until the UK actually leaves the EU, there will be no change in their status.  After that it will depend upon what deals the UK negotiates with the EU, but it is very unlikely that they will not get some sort of status in their adopted countries.

Further information

Please call us on 0800 061 4128 and speak to one of our lawyers if you would like to discuss your personal circumstances.  Alternately, you might want to read more on our EEA law page.

Speculations on Brexit

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19 March 2016

We’re getting a lot of calls these days from people asking what will happen if the referendum on 23 June throws up a vote to leave the EEA.  European nationals and their families already in the UK are naturally concerned, and so too are British citizens, wondering how this will affect their ability to travel, work and live freely.

The short answer is  – we don’t know.  I don’t think anyone does, even the government!

It is difficult to see how anyone already here exercising Treaty rights, or their family members, could be asked to leave, and presumably some sort of status would be granted in such cases.  Equally, presumably anyone with an application pending with the Home Office would be considered under rights of free movement as they are now, rather than as they would be in the event of Brexit, but it is a question of watch this space- and meanwhile, put in an application if you possibly can.

 

Workers and sham marriages

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eu-flag-800x450Once upon a time EEA law gave EEA citizens living in the UK and their families considerably more rights than the families of British and settled persons, because EEA law, which applies to EEA nationals and their families, is far more ‘family friendly’ than UK domestic law, which applies to British and settled people and their families.

This, though, is changing rapidly.   In a crackdown that began last October, the way in which EEA law is interpreted in the UK is becoming increasingly rigid.  Whether this is lawful or not is something that needs to be tested in the courts, but the first indications from two cases decided recently are that the courts are in agreement with the Home Office

 The first case dealt with the rights of free movement, and whether someone who is in the UK as a jobseeker would continue to be a ‘qualified person’ – that is, an EEA national exercising Treaty rights of free movement in the UK – if he or she failed to find a job.  The Tribunal has held that if that is the only basis on which you are exercising rights of free movement then the answer is no – failure to get a job means that you are no longer a qualified person.

The other case was about another contentious issue, that of ‘sham marriages’ – marriages of convenience, entered into to give one party rights under EEA law.  Until now, if your application is refused because the Home Office don’t believe that your marriage is genuine, you have had the right to remain in the UK whilst appealing the decision.  The Tribunal has held, however, that there is no reason why you cannot be removed from the UK and exercise your right of appeal from overseas.

These decisions may well be challenged in the higher courts, but until they are, this is the law as it stands at the moment.

Minister admits spouse migration rules are ‘unfair’ to British citizens

By | EEA, financial requirements, marriage | No Comments

eu-flag-800x450An interesting ‘news’ story from the BBC earlier this week:

When Keith Vaz, the chair of the Home Affairs Committee, pointed out that British citizens have to earn £18,600 per year before they can bring their spouses in, while EEA nationals have no such requirement to show minimum earnings, James Brokenshire, Minister of State for Immigration at the Home Office, acknowledged the unfairness of this, announcing it to be ‘unacceptable’ and needing ‘to be addressed’.

If you are one of the thousands of people who has been kept apart from their loved ones because of the new financial requirements, however, don’t get your hopes up that this signifies a softening in the government’s position  – Mr. Brokenshire appears to regard this as a ‘loophole’ that European nationals are taking advantage of and which he means to close, presumably meaning that everyone, British or European, would have to meet the minimum earnings requirement.

He is quoted as saying that he ‘plans to raise it with Britain’s EU partners’, thereby giving the impression of talking tough while in reality he must surely know that there is no chance at all that any minimum earnings requirement would be accepted by the European Commission, as this would be a clear breach of the right of free movement.

The BBC story is here.

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