The Immigration (European Economic Area) (Amendment) (No. 2) Regulations 2012

Explanatory Note

(This note is not part of the Regulations)

These Regulations make amendments to the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”) in order to give effect to the judgments of the Court of Justice of the European Union (‘ECJ’) in the cases of C-83/11 Secretary of State for the Home Department v Muhammad Sazzadur Rahman and Others (‘Rahman’) and C-34/09 Gerardo Ruiz Zambrano v Office national de l'emploi (ONEm) (‘Zambrano’) and to address a number of issues concerning the transposition of Directive 2004/38/EC and the practical application of the 2006 Regulations.

Paragraph 1 of the Schedule to these Regulations gives effect to the ECJ's decision in Rahman by amending regulation 8(2)(a) so as to remove the stipulation that a person must have resided in a country other than the UK with the EEA national of whom they claim to be an extended family member.

Paragraphs 2 and 3 of the Schedule to these Regulations give effect to the ECJ's decision in Zambrano by amending regulations 11 and 15A of the 2006 Regulations in order to confer rights of entry and residence on the primary carer of a British citizen who is residing in the United Kingdom and where the denial of such a right of residence would prevent the British citizen from being able to reside in the United Kingdom or in an EEA State. By virtue of regulation 2(1) of the 2006 Regulations an EEA State is defined as a member State of the European Union (other than the United Kingdom), Norway, Iceland, Liechtenstein or Switzerland.

Paragraph 4 of the Schedule to these Regulations amends regulation 21A of the 2006 Regulations in order to ensure that the provisions of Part 4 of the 2006 Regulations apply to the restriction of the rights of entry and residence flowing from regulation 15A(4A) in a modified form.

Paragraph 5 of the Schedule to these Regulations makes a number of changes to regulation 26 of the EEA Regulations, which specifies when a person may appeal under the EEA Regulations. Subparagraph (a) of paragraph 5 of the Schedule to these Regulations amends regulation 26 of the 2006 Regulations by inserting a new paragraph (2A) so as to ensure that someone who claims to be the durable partner of an EEA national may only appeal under the Regulations where he or she can provide evidence which is sufficient to satisfy the Secretary of State as to the existence of the relationship in question. Subparagraphs (b) and (c) amend regulation 26(3) of the 2006 Regulations in order to make it clear that this provision does not apply to EEA nationals. Subparagraphs (d) and (e) amend regulation 26(3A) of the 2006 Regulations in order to clarify that the stipulations which it contains concerning the exercise of appeal rights apply in relation to both persons claiming a derivative right to reside and persons claiming a derivative right to enter the United Kingdom. Subparagraph (f) of paragraph 5 amends regulation 26(3A) of the 2006 Regulations so as to stipulate the proof which someone claiming a right to enter or reside pursuant to regulation 15A(4A) must produce in order to be entitled to appeal against an EEA decision.

Paragraph 6 of the Schedule to these Regulations inserts a new regulation 29A into the 2006 Regulations which will make it clear that the Secretary of State may accept alternative evidence of identity and nationality where a person is unable to comply with a requirement of the 2006 Regulations concerning the holding or production of a valid national ID card or passport due to circumstances beyond his or her control.

Paragraph 7 of the Schedule to these Regulations amends the 2006 Regulations so that references to a United Kingdom national refer instead to a British citizen.

An impact assessment has not been produced for this instrument as no impact on businesses, charities, voluntary bodies or the public sector is foreseen.