Changes to the European Economic Area Regulations.

There are interesting (perhaps only to lawyers) changes to the EEA Regulations following the inception of the The Immigration (European Economic Area) (Amendment) Regulations 2012. These regulations are now in force in part, dealing with various matters. However one aspect is yet to become law, that dealing with EEA nationals who are also British citizens.

Previously in terms of the 2006 regulations, there was no actual bar on a dual national relying upon their EEA nationality to create rights for family members to reside under the regulations, even if they had not exercised their rights to free movement.

For the last year there has existed an interesting contradiction between the jurisprudence of the European Court of Justice and the domestic provisions as enacted by the 2006 Regulations. The contradiction came as a result of the case of C-434/09 Shirley McCarthy v Secretary of State for the Home Department. This case addressed the issue of a British citizen who can also acquire a passport of the Irish Republic.

Under the 2006 regulations, there is nothing in law to prevent reliance on the Irish nationality, even if the individual had never moved from the UK.

In Mrs McCarthy's case however not only had she never moved from UK soil, she had also never worked. The ECJ found that the Citizens Directive was not applicable to an individual who had never actually exercised their rights of free movement and remained in their 'home' country.

So the 2012 regulations finally seek to bring the decision in McCarthy into domestic law. At least that is what is stated in the Explanatory Note to the amendments.

The amendment itself notes that an EEA national will now be defined as a national of an EEA state 'who is not also a United Kingdom national'. Whilst the rest of the regulations come into force on 16th July 2012, this amendment only is held back until 16th October 2012.

This is subject to transitional provisions contained within Schedule 3. In certain circumstances, all tied to the fact that a person had a right as of 16th July 2012 under the regulations and had either been issued papers or was awaiting a decision, the old definition will still apply (which did not exclude dual nationals).

So far so good. However there are various issues. Firstly the interpretation section of the Schedule contains reference to the definition of 'family member' as corresponding with that contained with regulation 2(1) of the 2006 Regulations. However as far as we can tell, even considering 8 subsequent amendments, regulation 2(1) has never contained a definition of a 'family member'. This definition is contained within regulation 7.

This is important, since a loose definition of family member may include extended family members, such as partners in a durable relationship or dependent family members, or members of one's household. Indeed under regulation 7(3) once papers of some kind have been issued to an 'extended family member', they are then considered as a 'family member' from then on.

This lack of clarity could have significant consequences. In particular it is difficult to know if the Secretary of State intended to only include 'family members' in the transitional provisions, or whether the definition can also include those recognised as extended family members.

In addition, if it were possible to rely upon the imprecision in the drafting, then it would be critical to establish that the applicant was an 'extended family member' as of the 16th July. This, in terms of those in a durable relationship, is actually a fairly nuanced question of fact. It is also a question which UKBA frequently misapply, ignoring the tribunal's guidance in YB (EEA reg 17(4) - proper approach) Ivory Coast [2008] UKAIT 00062, showing an intractable desire to impose a requirement of two years cohabitation.

The problems don't end there. There is little explanation of how this alteration in the definition will interact with regulation 9, the so-called Surinder Singh provisions. This regulation operates to protect UK nationals who exercise free movement rights in another EEA state and then seek to return to the UK with their spouse. With the new amendments there appears to be a real difficulty if that UK national also possesses another EEA nationality. The alteration would appear to operate to bar them from reliance on regulation 9.

Further issues arise in circumstances where a long term UK resident with EEA nationality seeks to acquire UK citizenship. Doing so would likely then impose the far stricter Immigration Rules regime (and in particular the dreaded Appendix FM) in relation to any applications they might make to UKBA for their non-EEA family members. This might be avoided by reliance on regulation 9, and in particular the tribunal's guidance in OB (EEA Regulations 2006 – Article 9(2) – Surinder Singh spouse) Morocco [2010] UKUT 420 (IAC), but its far from clear how that would work in practice. It would also exclude those in durable relationships, or those relationships established after the EEA national has travelled to the UK. It would further exclude any relationship established after 16th July 2012.

Ultimately the acquisition of British Citizenship may actually be a real detriment to EEA nationals living here. Was that the intention of the rules? The amendments also appear to go much farther than to reflect the judgment in McCarthy and focus not on free movement but on nationality (regardless of the history of the dual national and their movements through the EU).

Clearly there are some real problems with this amendment. On one level the numbers of people affected may be limited, but certainly it seems to create a real issue about whether an EEA national should seek UK citizenship.

This is however a complex amendment and we would love to hear if anyone thinks our interpretation is wrong.