The UK government recently amended the Immigration (European Economic Area) Regulations 2006 (the ‘Regulations’) by adopting the Immigration (European Economic Area) (Amendment) (No. 2) Regulations 2013 (the ‘Amendment’). Some of the changes are as follows:
Surinder Singh route
Currently, the Surinder Singh route is a method for British citizens to be reunited with their non-EEA national family members without the need to meet the requirements of the UK Immigration Rules, but rather those of the Regulations. This route involves the British citizen living and exercising a Treaty right as either a worker or self-employed person in an EEA country (not the UK), and then engaging EEA free movement rights to return to the UK whilst under the Regulations.
From 1 January 2014, any application made under the Surinder Singh route (reg 9 of the Regulations), will be subject to a genuineness test.
Once the new requirements are in place, the British citizen will have to have “transferred the centre of his or her life” to another Member State in order to acquire a right of residence in the UK for his or her non-EEA family member seeking a right to reside in the UK upon their return.
Factors relevant to whether the centre of life has transferred to another EEA State will include:
- the period of residence in the EEA State as a worker or self-employed person;
- the location of the British citizen’s principal residence;
- the degree of the British citizen’s integration into the EEA State.
Those that have applications pending under the Surinder Singh route or have been considering making an application using this route should contact a member of the immigration team.
Retention of worker status
Generally speaking, in order for an EEA national to legally reside in the UK, he or she must be a ‘qualified person’, ie he or she must exercise a Treaty right as a:
- self-employed person;
- a self-sufficient person; or
- a student.
Where an EEA national, who is living in the UK, does not exercise one of the aforementioned treaty rights, potential issues with his or her right to remain in the UK can arise.
An amendment (to reg 6 of the Regulations) is being made to restrict the extent to which a person who is involuntarily unemployed may retain the status of ‘worker’.
Where a person worked for more than 12 months before becoming involuntarily unemployed, worker status may be retained for up to six months while the person is seeking work and has genuine prospects of employment, and for longer if the person can provide compelling evidence that he or she continues to seek work and has a genuine chance of being engaged. If a person has worked for less than 12 months, he or she may only retain worker status for a maximum of six months.
Changes will also be made to the definition of ‘jobseeker’ in order to clarify that a person may be a jobseeker both upon entering the UK, and where they have previously enjoyed a right to reside as a ‘qualified person’ in another capacity. A person may only retain jobseeker status for more than six months if they are able to provide compelling evidence of seeking work and having a genuine chance of being engaged.
This amendment comes into force on 1 January 2014.
Accession state nationals
Accession state nationals are nationals of Bulgaria and Romania, who reside and work in the UK following the accession of those states to the EU on 1 January 2007.
From 1 January 2014, a new regulation (7B) will provide for how residence by an accession State national previously subject to worker authorisation should be treated for the purposes of calculating periods of residence.
Qualifying EEA state residence cards
An amendment (to reg 11 of the Regulations) will affect any non-EEA national who presents a ‘qualifying EEA state residence card’, ie one which has been issued by an EEA member state other than the UK, in order to be admitted to the UK as the non-EEA family member of an EEA national.
From 7 April 2014, the UK will consider a ‘qualifying EEA state residence card’ to be only one which is issued by either Germany or Estonia.
Authority of the Secretary of State
From 1 January 2014, a new regulation (20B) will apply where the Secretary of State has reasonable doubt about a person’s right to reside in the UK under the Regulations or wants to verify the identity of a person to apply for a UK residence or permanent residence card.
In such cases, the person, or anyone connected to the person’s right to reside in the UK (eg an EEA family member) can be invited to an interview by the Secretary of State. If a person fails to attend an interview without good reason, the Secretary of State may decide that he or she is not entitled to a right to reside under the Regulations.