Update | Immigration: recent immigration 'rulings on the 'EEA regulations'

Several EEA Regulation cases in recent months have reinforced the prevalence and increasing importance of this area of immigration law, particularly with regard to the ambit of Chen (C-200/02) [2004] ECR I-9925 and issues around rights of residence. The 2006 EEA Regulations were amended with effect from 16 July 2012 by the Immigration (European Economic Area) Amendment Regulations 2012.

Residence after divorce

In Ahmed (Amos; Zambrano; Regulation 15A(3)(c) EEA Regs) [2013] UKUT 89 (IAC) the Upper Tribunal (Mrs Justice Lang and UTJ Storey) considered the position of a third-country national seeking rights of residence following her divorce from an EEA national with whom she had two children who were both also EEA nationals. At the date of her divorce her husband was not in the UK. Her eldest child had commenced full-time education, thus requiring consideration as to whether she had a derived right of residence whether under the new regulation 15A of the Immigration (European Economic Area) Regulations 2006 or under article 12, Regulation 1612/68 (now article 10 of Regulation 492/2011). Consideration was also given to whether the refusal of a residence card, given that her children are EEA nationals, violated her right to respect for family life under article 8 ECHR.

The decision sets out with great clarity the relevant case-law and legislative provisions and is a useful tool for cases concerned with these complex areas of law. The tribunal held:

1. The spouse of an EEA national or EU citizen does not acquire a retained right of residence on divorce unless the EEA national was in the United Kingdom and exercising Treaty rights at the date of the lawful termination of the marriage (Amos [2011] EWCA Civ 552 followed).

2. The principles established by the Court of Justice in Zambrano (case C-34-/09) and subsequent cases dealing with article 20 of the Treaty on the Functioning of the European Union (TFEU) have potential application even where the EEA national or EU citizen child of a third-country national is not a national of the host member state. The test in all cases is whether the adverse decision would require the child to leave the territory of the Union.

3. Notwithstanding inability to satisfy new regulation 15A(3)(c) of the Immigration (European Economic Area) Regulations 2006 as amended with effect from 16 July 2012, the parent of a child of an EEA national who has been employed in the UK when the child was also residing here can have a derived right of residence under article 12 of Regulation 1612/68 (now article 10 of Regulation 492/2011) even though the EEA national parent is no longer a worker in the UK at the time the child commences education (see C-480/08 Teixiera, 23 February 2010).

Although not in the headnote of the case, the Upper Tribunal confirmed that they had jurisdiction to consider article 8 (JM (Liberia)[2006] EWCA Civ 1402) and also considered the applicability of the Immigration Rules and Appendix FM. Ms Ahmed met the substantive requirements of the rules but did not meet the temporal requirements - the rules applied only to decisions made after 9 July 2012 and the decision the subject of appeal was made prior to that date. However the tribunal found, considering MF (Article 8- New Rules) Nigeria [2012] UKUT 393 (IAC), that it would not be proportionate for the appellant to face the threat of removal from the UK posed by the refusal decision. This makes the point that it is not removal that is being considered but the threat of removal. This difference is not always addressed by practitioners in appeals against the refusal to issue residence cards or grant permanent residence, rather such appeals are approached as if they were an actual removal decision.

Derived residence rights

In Bee and Anor (permanent/derived rights of residence) [2013] UKUT 83 (IAC) a presidential panel considered the acquisition of permanent residence by those with derived rights of residence. The appellants in this case were third-country nationals with three Irish citizen children. They were initially granted one year's residence, subsequently extended for a further five years as a consequence of Chen. It was accepted that the children were exercising treaty rights on the grounds of self sufficiency and in order to give effect to their rights of residence, their parents as their primary carers were permitted to remain. There was some discussion in the determination as to whether there was in fact a right of appeal in this case, the tribunal concluding that there was and in any event the amendment to the 2006 regulations makes clear that their rights are directly enforceable rights which national courts are obliged to recognise and which national legislation cannot reduce. Although no application had been made for permanent residence for the three children, the tribunal held that it appeared that they were entitled to such residence.

The tribunal then went on to consider the position of the parents, referring to regulation 15(1A) which states that "residence in the United Kingdom as a result of a derivative right of residence does not constitute residence for the purpose of this regulation". It also makes the point that this lack of a right of permanent residence is reflected in the new regulation 15A which provides for a derivative right of residence but only for so long as the person satisfies the criteria. The tribunal concluded that a non-EU citizen, who is residing in the United Kingdom by reason of a derived right of residence (e.g. as the primary carer of an EU citizen child), cannot thereby acquire a permanent right of residence in this country.

Extended family members

In Aladeselu and Ors v SSHD [2013] EWCA Civ 144 the Court of Appeal considered the position of extended family members. The appellants were overstayers in the UK and had been here for some months before their cousin, a Dutch national, arrived. They then made an application for residence cards under the 2006 EEA Regulations as the extended family members of a qualified person. It was accepted that they had lived together in Nigeria, that the cousin had continued to support them financially when the appellants remained in Nigeria and after they had arrived in the UK but before the cousin had arrived. It was accepted that they continued to be dependent.

Although initially dismissed, they were successful in their appeal to the Upper Tribunal against the decision to refuse to issue residence cards (Aladeselu & Ors (2006 Regulations - reg 8) Nigeria [2011] UKUT 253 (IAC)). The UT panel held that the appellants did not have to be lawfully present in the UK and the fact that they arrived before the qualifying EEA national did not matter for the purposes of regulation 8 and allowed the appeal to the extent that the SSHD now had to exercise discretion.

The Court of Appeal judgment sets out the regulations and surveys the relevant caselaw and its impact and interpretation of the regulations. The SSHD conceded that, in the light of Rahman (C-83/11) the European Union citizen does not have to arrive before or at the same time as the extended family member and thereafter considers the various regulation 8 requirements. The Court of Appeal confirms the decision of the Upper Tribunal. But of course this does not mean that such extended family members will be granted residence cards. Consideration of all of the factors, including presumably their length of residence in the UK prior to the arrival of the EEA citizen as well as their status in the UK, will obviously have a bearing on the exercise of the discretion of the SSHD in determining whether to grant a residence card. Practitioners will need to be alive not only to the issue of whether an applicant is an extended family member but also the factors relevant to the exercise of discretion.

Practitioners will find the UT reported decisions regarding EEA regulations helpful. Although the headnotes set out the actual decision reached, the body of the decisions will frequently set out the legislative provisions and survey the relevant caselaw as it applies to the decision the subject of the appeal. In this way practitioners will be kept up to date on a rolling basis of changes in the caselaw and legislative principles.