UK Finally Changes Immigration (European Economic Area) Regulations 2006

Back in July of 2008 the European Court of Justice issued its ruling in Metock v Minister for Justice, Equality and Law Reform (Ireland) Case C – 127/08, [2009] QB 318. The content and effect of the ruling will be familiar already – but essentially it said that the Irish government's domestic legislation covering the rights of family members of citizens of the countries comprising the European Union (EU) who were living and working in Ireland, did not correctly transpose the rights provided to their family members by the relevant European Council Directive, which is known as the Citizens' Directive.

In common with similar provisions included in the UK's equivalent legislation – the Immigration (European Economic Area) Regulations 2006 at their Regulation 12 (1) (b) - the Irish legislation required anyone who was not a citizen of a member state of the EU who wished to join his or her EU national family member living and working in Ireland to be lawfully residing in another EU state. Anyone applying from any other state would be refused, unless they showed that they met the usual immigration criteria applicable to anyone seeking to join a family member in Ireland.

In the years since the Metock ruling there have been many cases following it in the UK and in Europe. As an example, back in April of 2009 we reported the case of R (on the application of YawOwusu) v Secretary of State for the Home Department [2009] EWHC 593 (Admin) in which Mr Justice Blake pointed out that:

"The problem in this case is that regulation 12(1)(b) that was relied upon both by the entry clearance officer and the immigration judge is unlawful. It is a failure to transpose the requirements of the Directive 2004/58/EC of 29th April 2004 lawfully into domestic law."

It's surprising that it has taken until last Thursday (June 2 2011) - nearly three years after the Metock ruling - for the law in the UK to be altered to reflect the requirements of the Citizens' Directive, although the amending legislation, the Immigration (European Economic Area) (Amendment) Regulations 2011, points out in its explanatory notes that:

"The UK Border Agency has been operationally compliant with this judgment [Metock] since November 2008. "

The change itself is fairly straightforward. Until June 2 2011 Regulation 12 (Issue of family permit) provided:

(1) An entry clearance officer must issue an EEA family permit to a person who applies for one if the person is a family member of an EEA national and—

(a) the EEA national—

(i) is residing in the UK in accordance with these Regulations; or

(ii) will be travelling to the United Kingdom within six months of the date of the application and will be an EEA national residing in the United Kingdom in accordance with these Regulations on arrival in the United Kingdom; and

(b) the family member will be accompanying the EEA national to the United Kingdom or joining him there and—

(i) is lawfully resident in an EEA State; or

(ii) would meet the requirements in the immigration rules (other than those relating to entry clearance) for leave to enter the United Kingdom as the family member of the EEA national or, in the case of direct descendants or dependent direct relatives in the ascending line of his spouse or his civil partner, as the family member of his spouse or his civil partner, were the EEA national or the spouse or civil partner a person present and settled in the United Kingdom.

Now the whole of sub regulation (b) is replaced by:

(b) the family member will be accompanying the EEA national to the United Kingdom or joining the EEA national there. "

The amendment regulations also include the meaning of "sufficient resources" in the Regulations themselves. This is relevant to people who apply under the Immigration (European Economic Area) Regulations 2006 for appropriate documents to show that they are entitled to live in the UK as "self sufficient persons" or as students or as the family members of such people.

This is done by the following change to Regulation 4:

"(4) For the purposes of paragraphs (1)(c) and (d) and paragraphs (2) and (3), the resources of the person concerned and, where applicable, any family members, are to be regarded as sufficient if —

(a) they exceed the maximum level of resources which a United Kingdom national and his family members may possess if he is to become eligible for social assistance under the United Kingdom benefit system; or

(b) paragraph (a) does not apply but, taking into account the personal situation of the person concerned and, where applicable, any family members, it appears to the decision maker that the resources of the person or persons concerned should be regarded as sufficient. "

So to have sufficient resources you have to show that you have as much funds as you and your family would be entitled to receive if you were in receipt of income support and other related benefits. This requirement is not however mandatory, and the Secretary of State retains a discretion to permit people to stay where she or he thinks that the resources concerned are adequate even if they don't meet this test.

Anyone to whom the complex provisions of the Immigration (European Economic Area) Regulations 2006 may apply is strongly advised to obtain professional legal advice prior to making any application to the United Kingdom Border Agency or to its overseas posts.

For professional legal advice on immigration or work permit in the UK, contact the Gherson team.