Legalize / United Kingdom / Statutory-Instrument

The Immigration (European Economic Area) Regulations 2016

Type Statutory-Instrument

Publication 2016-11-02

State In force

Department Statute Law Database

Source legislation.gov.uk

The Secretary of State, being a Minister designated[^f00001] for the purposes of section 2(2) of the European Communities Act 1972[^f00002] in relation to measures relating to rights of entry into, and residence in, the United Kingdom, in exercise of the powers conferred by that section and those conferred by section 109 of the Nationality, Immigration and Asylum Act 2002[^f00003], makes the following Regulations.

PART 1 — PRELIMINARY

Citation and commencement

1

(1) These Regulations may be cited as the Immigration (European Economic Area) Regulations 2016.

(2) These Regulations come into force—

(a) for the purposes of this regulation, regulation 44 and Schedule 5 (transitory provisions), on 25th November 2016;

(b) for all other purposes, on 1st February 2017.

General interpretation

2

(1) In these Regulations—

“the 1971 Act” means the Immigration Act 1971[^f00004];

“the 1999 Act” means the Immigration and Asylum Act 1999[^f00005];

“the 2002 Act” means the Nationality, Immigration and Asylum Act 2002;

“the 2006 Regulations” means the Immigration (European Economic Area) Regulations 2006[^f00006];

“the 2016 Act” means the Immigration Act 2016;

“civil partner” does not include—a party to a civil partnership of convenience; orthe civil partner (“C”) of a person (“P”) where a spouse, civil partner or durable partner of C or P is already present in the United Kingdom;

“civil partnership of convenience” includes a civil partnership entered into for the purpose of using these Regulations, or any other right conferred by the EU Treaties, as a means to circumvent—immigration rules applying to non-EEA nationals (such as any applicable requirement under the 1971 Act to have leave to enter or remain in the United Kingdom); orany other criteria that the party to the civil partnership of convenience would otherwise have to meet in order to enjoy a right to reside under these Regulations or the EU Treaties;

“Common Travel Area” has the meaning given in section 1(3) of the 1971 Act;

“decision maker” means the Secretary of State, an immigration officer or an entry clearance officer (as the case may be);

“deportation order” means an order made under regulation 32(3);

“derivative residence card” means a card issued to a person under regulation 20;

“derivative right to reside” means a right to reside under regulation 16;

“document certifying permanent residence” means a document issued under regulation 19(1);

“durable partner” does not include—a party to a durable partnership of convenience; orthe durable partner (“D”) of a person (“P”) where a spouse, civil partner or durable partner of D or P is already present in the United Kingdom and where that marriage, civil partnership or durable partnership is subsisting;

“durable partnership of convenience” includes a durable partnership entered into for the purpose of using these Regulations, or any other right conferred by the EU Treaties, as a means to circumvent—immigration rules applying to non-EEA nationals (such as any applicable requirement under the 1971 Act to have leave to enter or remain in the United Kingdom); orany other criteria that the party to the durable partnership of convenience would otherwise have to meet in order to enjoy a right to reside under these Regulations or the EU Treaties;

“EEA decision” means a decision under these Regulations that concerns—a person’s entitlement to be admitted to the United Kingdom;a person’s entitlement to be issued with or have renewed, or not to have revoked, an EEA family permit, a registration certificate, residence card, derivative residence card, document certifying permanent residence or permanent residence card (but does not include a decision to reject an application for the above documentation as invalid);a person’s removal from the United Kingdom; orthe cancellation, under regulation 25, of a person’s right to reside in the United Kingdom,but does not include ... a decision to refuse an application under regulation 26(4) (misuse of a right to reside: material change of circumstances), or any decisions under regulation 33 (human rights considerations and interim orders to suspend removal) or 41 (temporary admission to submit case in person);

“EEA family permit” means a document issued under regulation 12;

“EEA national” means—a national of an EEA State who is not also a British citizen; ora national of an EEA State who is also a British citizen and who prior to acquiring British citizenship exercised a right to reside as such a national, in accordance with regulation 14 or 15,save that a person does not fall within paragraph (b) if the EEA State of which they are a national became a member State after that person acquired British citizenship.

“EEA State” means—a member State, other than the United Kingdom; orLiechtenstein, Iceland, Norway or Switzerland;

“entry clearance” has the meaning given in section 33(1) of the 1971 Act[^f00007];

“entry clearance officer” means a person responsible for the grant or refusal of entry clearance;

“exclusion order” means an order made under regulation 23(5);

“indefinite leave”, “immigration laws” and “immigration rules” have the meanings given in section 33(1) of the 1971 Act;

“marriage of convenience” includes a marriage entered into for the purpose of using these Regulations, or any other right conferred by the EU Treaties, as a means to circumvent—immigration rules applying to non-EEA nationals (such as any applicable requirement under the 1971 Act to have leave to enter or remain in the United Kingdom); orany other criteria that the party to the marriage of convenience would otherwise have to meet in order to enjoy a right to reside under these Regulations or the EU Treaties;

“military service” means service in the armed forces of an EEA State;

“permanent residence card” means a document issued under regulation 19(2);

“qualifying EEA State residence card” means a valid document called a “Residence card of a family member of a Union Citizen” issued under Article 10 of Council Directive 2004/38/EC[^f00008] (as applied, where relevant, by the EEA agreement) by any EEA State (except Switzerland) to a non-EEA family member of an EEA national as proof of the holder’s right of residence in that State;

“registration certificate” means a certificate issued under regulation 17;

“relevant EEA national” in relation to an extended family member has the meaning given in regulation 8(6);

“residence card” means a card issued under regulation 18;

“right to reside” means a right to reside in the United Kingdom under these Regulations (or where so specified, a right to reside under a particular regulation);

“spouse” does not include—a party to a marriage of convenience; orthe spouse (“S”) of a person (“P”) where a spouse, civil partner or durable partner of S or P is already present in the United Kingdom.

(2) Section 11 of the 1971 Act (construction of references to entry)[^f00009] applies for the purpose of determining whether a person has entered the United Kingdom for the purpose of these Regulations as it applies for the purpose of determining whether a person has entered the United Kingdom for the purpose of that Act.

Continuity of residence

3

(1) This regulation applies for the purpose of calculating periods of continuous residence in the United Kingdom under these Regulations.

(2) Continuity of residence is not affected by—

(a) periods of absence from the United Kingdom which do not exceed six months in total in any year;

(b) periods of absence from the United Kingdom on compulsory military service; or

(c) one absence from the United Kingdom not exceeding twelve months for an important reason such as pregnancy and childbirth, serious illness, study or vocational training or an overseas posting.

(3) Continuity of residence is broken when—

(a) a person serves a sentence of imprisonment;

(b) a deportation or exclusion order is made in relation to a person; or

(4) Paragraph (3)(a) applies, in principle, to an EEA national who has resided in the United Kingdom for at least ten years, but it does not apply where the Secretary of State considers that—

(a) prior to serving a sentence of imprisonment, the EEA national had forged integrating links with the United Kingdom;

(b) the effect of the sentence of imprisonment was not such as to break those integrating links; and

(c) taking into account an overall assessment of the EEA national’s situation, it would not be appropriate to apply paragraph (3)(a) to the assessment of that EEA national’s continuity of residence.

“Worker”, “self-employed person”, “self-sufficient person” and “student”

4

(1) In these Regulations—

(a) “worker” means a worker within the meaning of Article 45 of the Treaty on the Functioning of the European Union[^f00010];

(b) “self-employed person” means a person who is established in the United Kingdom in order to pursue activity as a self-employed person in accordance with Article 49 of the Treaty on the Functioning of the European Union[^f00011];

(i) sufficient resources not to become a burden on the social assistance system of the United Kingdom during the person’s period of residence; and

(ii) comprehensive sickness insurance cover in the United Kingdom;

(d) “student” means a person who—

(i) is enrolled, for the principal purpose of following a course of study (including vocational training), at a public or private establishment which is—

(aa) financed from public funds; or

(bb) otherwise recognised by the Secretary of State as an establishment which has been accredited for the purpose of providing such courses or training within the law or administrative practice of the part of the United Kingdom in which the establishment is located;

(ii) has comprehensive sickness insurance cover in the United Kingdom; and

(iii) has assured the Secretary of State, by means of a declaration, or by such equivalent means as the person may choose, that the person has sufficient resources not to become a burden on the social assistance system of the United Kingdom during the person’s intended period of residence.

(2) For the purposes of paragraphs (3) and (4) below, “relevant family member” means a family member of a self-sufficient person or student who is residing in the United Kingdom and whose right to reside is dependent upon being the family member of that student or self-sufficient person.

(3) In sub-paragraphs (1)(c) and (d)—

(a) the requirement for the self-sufficient person or student to have sufficient resources not to become a burden on the social assistance system of the United Kingdom during the intended period of residence is only satisfied if the resources available to the student or self-sufficient person and any of their relevant family members are sufficient to avoid the self-sufficient person or student and all their relevant family members from becoming such a burden; and

(b) the requirement for the student or self-sufficient person to have comprehensive sickness insurance cover in the United Kingdom is only satisfied if such cover extends to cover both the student or self-sufficient person and all their relevant family members.

(4) In paragraph (1)(c) and (d) and paragraph (3), the resources of the student or self-sufficient person and, where applicable, any of their relevant family members, are to be regarded as sufficient if—

(a) they exceed the maximum level of resources which a British citizen (including the resources of the British citizen’s family members) may possess if the British citizen is to become eligible for social assistance under the United Kingdom benefit system; or

(b) paragraph (a) does not apply but, taking into account the personal circumstances of the person concerned and, where applicable, all their relevant family members, it appears to the decision maker that the resources of the person or persons concerned should be regarded as sufficient.

(5) For the purposes of regulation 16(2) (criteria for having a derivative right to reside), references in this regulation to “family members” includes a “primary carer” as defined in regulation 16(8).

“Worker or self-employed person who has ceased activity”

5

(1) In these Regulations, “worker or self-employed person who has ceased activity” means an EEA national who satisfies a condition in paragraph (2), (3), (4) or (5).

(2) The condition in this paragraph is that the person—

(a) terminates activity as a worker or self-employed person and—

(i) had reached the age of entitlement to a state pension on terminating that activity; or

(ii) in the case of a worker, ceases working to take early retirement;

(b) pursued activity as a worker or self-employed person in the United Kingdom for at least 12 months prior to the termination; and

(3) The condition in this paragraph is that the person terminates activity in the United Kingdom as a worker or self-employed person as a result of permanent incapacity to work; and—

(a) had resided in the United Kingdom continuously for more than two years immediately prior to the termination; or

(b) the incapacity is the result of an accident at work or an occupational disease that entitles the person to a pension payable in full or in part by an institution in the United Kingdom.

(4) The condition in this paragraph is that the person—

(a) is active as a worker or self-employed person in an EEA State but retains a place of residence in the United Kingdom and returns, as a rule, to that place at least once a week; and

(b) immediately prior to becoming so active in the EEA State, had been continuously resident and continuously active as a worker or self-employed person in the United Kingdom for at least three years.

(5) A person who satisfied the condition in paragraph (4)(a) but not the condition in paragraph (4)(b) must, for the purposes of paragraphs (2) and (3), be treated as being active and resident in the United Kingdom during any period during which that person is working or self-employed in the EEA State.

(6) The conditions in paragraphs (2) and (3) as to length of residence and activity as a worker or self-employed person do not apply in relation to a person whose spouse or civil partner is a British citizen.

(7) Subject to regulation 6(2), periods of—

(a) inactivity for reasons not of the person’s own making;

(b) inactivity due to illness or accident; and

must be treated as periods of activity as a worker or self-employed person, as the case may be.

“Qualified person”

6

(1) In these Regulations—

“jobseeker” means an EEA national who satisfies conditions A, B and, where relevant, C;

“qualified person” means a person who is an EEA national and in the United Kingdom as—a jobseeker;a worker;a self-employed person;a self-sufficient person; ora student;

“relevant period” means—in the case of a person retaining worker status under paragraph (2)(b) or self-employed person status under paragraph (4)(b), a continuous period of six months;in the case of a jobseeker, 91 days, minus the cumulative total of any days during which the person concerned previously enjoyed a right to reside as a jobseeker, not including any days prior to a continuous absence from the United Kingdom of at least 12 months.

(2) A person who is no longer working must continue to be treated as a worker provided that the person—

(a) is temporarily unable to work as the result of an illness or accident;

(b) is in duly recorded involuntary unemployment after having been employed in the United Kingdom for at least one year, provided the person—

(i) has registered as a jobseeker with the relevant employment office; and

(ii) satisfies conditions A and B;

(c) is in duly recorded involuntary unemployment after having been employed in the United Kingdom for less than one year, provided the person—

(i) has registered as a jobseeker with the relevant employment office; and

(ii) satisfies conditions A and B;

(d) is involuntarily unemployed and has embarked on vocational training; or

(e) has voluntarily ceased working and has embarked on vocational training that is related to the person’s previous employment.

(3) A person to whom paragraph (2)(c) applies may only retain worker status for a maximum of six months.

(4) A person who is no longer in self-employment must continue to be treated as a self-employed person provided that the person—

(a) is temporarily unable to engage in activities as a self-employed person as the result of an illness or accident;

(b) is in duly recorded involuntary unemployment after having worked as a self-employed person in the United Kingdom for at least one year provided the person—

(i) has registered as a jobseeker with the relevant employment office; and

(ii) satisfies conditions D and E;

(c) is in duly recorded involuntary unemployment after having worked as a self-employed person in the United Kingdom for less than one year, provided the person—

(i) has registered as a jobseeker with the relevant employment office; and

(ii) satisfies conditions D and E;

(d) is involuntarily no longer in self-employment and has embarked on vocational training; or

(e) has voluntarily ceased self-employment and has embarked on vocational training that is related to the person’s previous occupation.

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