New Immigration (European Economic Area) Regulations 2016 laid

New Immigration (European Economic Area) Regulations 2016 were laid today, coming into force mainly from 1 February 2017. The new version is mainly a consolidating exercise — the 2006 regulations has been amended and reamended over and over again — but there are also some significant changes slipped in. These changes include:

Major changes to the Surinder Singh route (coming into effect on 25 November 2016) which on the one hand soften the test to whether residence abroad was “genuine” but on the other hand sanctions refusal “where the purpose of the residence in the EEA State was as a means for circumventing any immigration laws applying to non-EEA nationals to which [the family member] would otherwise be subject”.
New power to require EEA applications to be made in a prescribed manner.
Confirmed abolition of right of appeal for extended family members.
Introduction of potential for out of country appeals to all EEA appeals where the person is judged to have no right of residence (see reg. 32(3) read with Bilal Ahmed).
The NA Pakistan judgment is implemented, at least in part, so that a child does not need to have been in education at the time the EEA national parent left the UK.
A new “verification” process for the Home Office to check whether an EEA national or family member really qualifies for residence.
A new “misuse of rights” provision which appears directly and deliberately to conflict with the Akrich Case C-109/01 and Emsland‑Stärke (Case C‑110/99) judgments.
Some of this is obviously and transparently in breach of EU law. Presumably the Home Office either does not care any more or is assuming the Commission has better things to do than enforce EU law against a Member State who is leaving anyway. If the UK does remain in the Single Market or the EEA, though, these things will matter and parts of the regulations will inevitably (in my opinion at least) be found to be unlawful.

On the appeals provisions, it is clear that the Government is creating a genune one-tier appeal tribunal – but in the Upper Tribunal, in the limited form of challenge by way of judicial review. To hit EEA nationals with the existential crisis of Brexit then £800 appeal fees then out of country appeals seems… cruel.

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