In November 2016, the government laid out an updated version of the Immigration (European Economic Area) Regulations 2016, which came into force mainly on 1 February 2017.
The new version does not make any serious changes to the rights of European nationals in the UK, as was feared by many, but mostly consolidates a large number of amendments that were made to the previous version (EEA Regulations 2006) over the years.
The amended version does, however, introduce various changes which affect the application of family members of EEA nationals who are not, themselves, EEA nationals. Overall, it makes applications more complex. Some of the major changes are outlined below.
The first part of the updated regulations introduces major changes which are based on the ruling in the Surinder Singh case. Those changes came into effect on 25 November 2016.
They apply to British nationals who were residing abroad with their non-EEA family members (i.e. spouses) and who, upon returning, to the UK wish to use EU law instead of UK Immigration Rules (which have much more rigorous requirements).
The changes slightly relax the requirements on what is considered a ‘genuine’ residence abroad, however they now allow the Home Office to refuse an application where the purpose of residence in the EEA state is to circumvent the more rigorous UK Immigration Rules which would apply to their non-EEA family members. The applicability of this change is broad, and it remains to be seen how these changes are applied by the Home Office in practice.
However, it is foreseeable that applications relating to the Surinder Singh ruling will attract a higher degree of scrutiny from Home Office officials: in particular where the Surinder Singh application is made shortly after an unsuccessful application for a spouse visa under UK Immigration Rules.
Further changes now also require all applications under EEA rules to be made in a prescribed manner using application forms provided by the Home Office.
Previously, the use of application forms was recommended but not mandatory, however, most applications were submitted using a specified format. This change now makes the use of application forms compulsory.
The right to appeal for extended family members has been abolished and, thus, this precedent has been codified in law. This change will mostly affect unmarried partners who will no longer have the right to appeal but will have to choose between preparing a fresh application or going through the lengthy and costly procedure of applying for Judicial Review.
Finally, and quite significantly, the new regulations will restrict the right to appeal for EEA applications where the Home Office considers that the marriage is one of convenience. Non-EEA family members who then wish to appeal that decision will have to leave the UK and reapply from overseas.
Considering that appeals can take up to 15 months to be heard, this change could be quite significant for genuine applicants whose applications were incorrectly refused.