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Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member-States Name of legal analyst: Jo Shaw Contact details: School of Law, University of Edinburgh, Old College, Edinburgh, EH8 9YL, UK COUNTRY

Date Table completed: October 2008

United Kingdom

Listing of transposing national legislation (including legal reference and abbreviations used in TOC): Immigration Act 1971 Immigration Act 1988 Immigration Rules The Immigration (European Economic Area) Regulations 2006 The Education (Student Support) (Amendment) Regulations 2006 The Education (Student Loans) (Amendment) (England and Wales) Regulations 2006 The Education (Mandatory Awards)(Amendment) Regulations 2006 The Education (Student Support) (European Institutions) Regulations 2006 The Social Security (Persons from Abroad) Amendment Regulations 2006 The Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 The Education (Fees and Awards) (Amendment) Regulations 2006 The Education (Graduate Endowment, Student Fees and Support) (Scotland) Amendment Regulations 2006 The Students' Allowances (Scotland) Regulations 2007 The Education Maintenance Allowances (Scotland) Regulations 2007

Other abbreviations:

Analysed legislation in conformity? (click as appropriate) YES or/and Stricter

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NO Incomplete or/and Incorrect

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G I

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Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member-States Art

Citation of the Article of the Directive

Chapter I. GENERAL PROVISIONS Art. 2.1 Definitions For the purposes of this Directive: 1) "Union citizen" means any person having the nationality of a Member State; Art. 2.2 (a)

Art. 2.2 (b)

Art. 2.2 (c)

2) "Family member" means: (a) the spouse;

(b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State; (c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b);

Corresponding national provision (legal ref. & art.)

Complete text of national provision (in language of Member State)

The Immigration (European Economic Area) Regulations 2006

“EEA national” means a national of an EEA State

Comments/Problems

Y

Effective transposition

Y

Regulation 7(1)(a)

7(1) Subject to paragraph (2), for the purposes of these Regulations the following persons shall be treated as the family members of another person – a) his spouse … 2(1): … “spouse” does not include a party to a marriage of convenience

“Union Citizen” is replaced by reference to an European Economic Area national, which is a broader concept including additional states (Norway, Ireland, Liechtenstein and Switzerland, although the latter is not strictly part of the EEA) Effective transposition

Regulation 2(1) The Immigration (European Economic Area) Regulations 2006

7(1) Subject to paragraph (2), for the purposes of these Regulations the following persons shall be treated as the family members of another person – (a) his … civil partner

Y

Regulation 2(1) The Immigration (European Economic Area) Regulations 2006

Regulation 7(1)(a)

The legitimacy of the reference to ‘marriage of convenience’ can be derived from Article 35 and the possibility for Member States to adopt measures to address the ‘abuse of rights or fraud’.

Effective transposition The legitimacy of the reference to ‘marriage of convenience’ can be derived from Article 35 and the possibility for Member States to adopt measures to address the ‘abuse of rights or fraud’. UK recognises civil partnerships under the Civil Partnership Act 2004.

2(1): … “civil partner” does not include a party to a civil partnership of convenience

Regulation 2(1) The Immigration (European Economic Area) Regulations 2006 Regulation 7(1)(b)

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Fully in accord? (y/n)

(b) direct descendants of his, his spouse or his civil partner who are(ii) under 21; or (iii) dependants of his, his spouse or his civil partner

Y

Effective transposition There is no definition of ‘dependants’ in the Regulations themselves, but the concept must be interpreted with regards to the Jia line of case law. We will examine the interpretation of this case law in more depth in the Conformity Study.

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Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member-States Art

Citation of the Article of the Directive

Art. 2.2 (d)

(d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b);

Art. 2.3

Art. 3.1

3) "Host Member State" means the Member State to which a Union citizen moves in order to exercise his/her right of free movement and residence. Beneficiaries This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.

Corresponding national provision (legal ref. & art.) The Immigration (European Economic Area) Regulations 2006 Regulation 7(1)(c) The Immigration (European Economic Area) Regulations 2006 Regulation 2 The Immigration (European Economic Area) Regulations 2006 Regulations 2, 7 and 9

Complete text of national provision (in language of Member State)

(c) dependant direct relatives in his ascending line or that of his spouse or civil partner

“EEA State” means(a) a member State, other than the United Kingdom; (b) Norway, Iceland or Liechtenstein; or (c) Switzerland; 9.—(1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who is the family member of a United Kingdom national as if the United Kingdom national were an EEA national. (2) The conditions are that— (a) the United Kingdom national is residing in an EEA State as a worker or self-employed person or was so residing before returning to the United Kingdom; and (b) if the family member of the United Kingdom national is his spouse or civil partner, the parties are living together in the EEA State or had entered into the marriage or civil partnership and were living together in that State before the United Kingdom national returned to the United Kingdom.

Fully in accord? (y/n)

Comments/Problems

Y

Effective transposition

Y

Effective transposition EU Member State is replaced by EEA state. In this case, the host MS is the UK.

Y

Effective transposition. The Explanatory Memorandum refers to Regs 2 and 7 as transposing this provision. In fact, there is no general ‘entitlement’ provision in the Regs, and Regs 2 (definitions of EEA nationals in Regulation 2) and 7 (family members) (both set out above) are definitional regulations. Also relevant is Regulation 9 which covers the Surinder Singh scenario of the national of a Member State returning to their home state having worked or been self-employed in another Member State and bringing with them (nonEEA) family members. This lack of a specific transposing provision may raise some doubts as to whether transposition is effective, especially when combined with the concerns about the effective UK transposition of the Jia case law on the entry of family members into the UK.

(3) Where these Regulations apply to the family member of a United Kingdom national the United Kingdom national shall be treated as holding a valid passport issued by an EEA State for the purpose of the application of regulation 13 to that family member..

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Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member-States Art

Citation of the Article of the Directive

Art. 3.2 (a)

Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons: (a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;

Corresponding national provision (legal ref. & art.) The Immigration (European Economic Area) Regulations 2006

Complete text of national provision (in language of Member State)

Fully in accord? (y/n)

8(1) In these Regulations “extended family member” means a person who is not a family member of an EEA national under regulation 7(1)(a), (b) or (c) and who satisfies the conditions in paragraph (2), (3), (4) or (5).

N, Incorrect

Regulation 8 (2) A person satisfies the condition in this paragraph if the person is a relative of an EEA national, his spouse or his civil partner and – (a) the person is residing in an EEA State in which the EEA national also resides and is dependant upon the EEA national or is a member of his household (b) the person satisfied the condition in paragraph (a) and is accompanying the EEA national to the United Kingdom or wishes to join him there; or (c) the person satisfied the condition in paragraph (a), has joined the EEA national in the United Kingdom and continues to be dependant upon him or to be a member of his household (3) A person satisfies the condition in this paragraph if the person is a relative of an EEA national or his spouse or and, on serious health grounds, strictly requires the personal care of the EEA national his spouse or his civil partner. (4) A person satisfies the condition in this paragraph if the person is a relative of an EEA national and would meet the requirements in the immigration rules (other than those relating to entry clearance) for indefinite leave to enter or remain in the United Kingdom as a dependant relative of the EEA national were the EEA national a person present and settled in the United Kingdom. (5) A person satisfies the condition in this paragraph if the person is the partner of an EEA national (other

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Comments/Problems

Incorrect transposition The UK Regulations are very cumbersome, and they are also problematic in the light of Article 3(2). They use a concept of ‘extended family member’ to cover those entitled to ‘facilitation’ under Article 3(2) (which is defined in a variety of different ways in Regulation 8), and then assimilate these groups to the ‘normal’ family members under Regulation 7(3) so long as they have an EEA family permit, a registration certificate or a residence card (the latter two being optional under UK law in any event). Obtaining the EEA family permit is most difficult for an EEA family member (whether extended or not) who has not previously been resident in another Member State and obtained documentation there, because the UK provisions appear to restrict access to the UK for family members who have not previously been resident in an EEA state, using language in Regulation 8(2) for which there is no obvious legal basis in Article 3(2). Furthermore, all of these provisions need to be read in the light of the requirement of EEA Family Permits under Regulation 12, and in particular the granting of a wide discretion to the Entry Clearance Officer under Regulation 12(2) (‘may issue an EEA family permit’). In addition, Regulation 12(3) refers to a extensive examination of the personal circumstances of the applicant. This may not go sufficiently far to constitute ‘facilitation’ as required by the Directive. One major problem with the UK provisions is that there is no specific basis in Article 3(2) for Regulation 8(2)’s requirement that the family member has been previously residing in an EEA state, and this is doubtful in the light of Jia. Regulation 8(4) also creates a new category of extended family member entitled to facilitation who is a person who satisfies the Immigration Rules on

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Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member-States Art

Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

Complete text of national provision (in language of Member State)

than a civil partner) and can prove to the decision maker that he is in a durable relationship with the EEA national Regulation 7(3)

7(3) Subject to paragraph (4), a person who is an extended family member and has been issued with an EEA family permit, a registration certificate or a residence card shall be treated as a family member of the relevant EEA national for as long as he continues to satisfy the conditions in regulation 8(2), (3), (4) or (5) in relation to that EEA national and the permit, certificate or card has not ceased to be valid or been revoked

Regulation 11(2)

11(2) A person who is not an EEA national must be admitted to the United Kingdom if he is a family member of an EEA national, a family member who has retained the right of residence or a person with a permanent right of residence under regulation 15 and produces on arrival(a) a valid passport; and (b) an EEA family permit, a residence card or a permanent residence card

Regulation 14 (2)

14 (2) A family member of a qualified person residing in the United Kingdom under paragraph (1) or of an EEA national with a permanent right of residence under regulation 15 is entitled to reside in the United Kingdom for so long as he remains the family member of the qualified person or EEA national

Regulation 12(2)

An entry clearance officer may issue an EEA family permit to an extended family member of an EEA national who applies for one if-

Fully in accord? (y/n)

Comments/Problems

his or her own account. This is not directly derived from the Directive either.

(a) the relevant EEA national satisfies the condition in paragraph (1)(a); (b) the extended family member wishes to accompany the relevant EEA national to

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Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member-States Art

Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

Complete text of national provision (in language of Member State)

Fully in accord? (y/n)

Comments/Problems

the United Kingdom or to join him there; and (c) in all the circumstances, it appears to the entry clearance officer appropriate to issue the EEA family permit.

Art. 3.2 (b)

(b) the partner with whom the Union citizen has a durable relationship, duly attested.

Regulation 12(3)

Where an entry clearance officer receives an application under paragraph (2) he shall undertake an extensive examination of the personal circumstances of the applicant…

The Immigration (European Economic Area) Regulations 2006

(5) A person satisfies the condition in this paragraph if the person is the partner of an EEA national (other than a civil partner) and can prove to the decision maker that he is in a durable relationship with an EEA national.

N, Ambiguo us

Where an entry clearance officer receives an application under paragraph (2) he shall undertake an extensive examination of the personal circumstances of the applicant and if he refuses the application shall give reasons justifying the refusal unless this is contrary to the interests of national security.

Y

Regulation 8(5)

The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.

The Immigration (European Economic Area) Regulations 2006 Regulation 12(3)

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Ambiguous transposition. While the transposition is acceptable on the face of it, there may be some problems in practice. The concept of ‘durability’ is not defined by the Directive, but rather requires an extensive examination of the personal circumstances for the state to justify a denial of residence; in fact, the standard UK Border Agency policy to scrutinize all applications by reference to the two year period required by the Immigration Rules for unmarried partners may raise problems in practical implementation (Section 295D(vi) of the Immigration Rules). Effective transposition The rider on national security is permitted by Article 30(2): 2. The persons concerned shall be informed, precisely and in full, of the public policy, public security or public health grounds on which the decision taken in their case is based, unless this is contrary to the interests of State security.

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Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member-States Art

Citation of the Article of the Directive

Chapter II. RIGHT OF EXIT AND ENTRY Art. 4.1 Right of Exit

Corresponding national provision (legal ref. & art.) Not transposed

Complete text of national provision (in language of Member State)

Fully in accord? (y/n)

Y

Without prejudice to the provisions on travel documents applicable to national border controls, all Union citizens with a valid identity card or passport and their family members who are not nationals of a Member State and who hold a valid passport shall have the right to leave the territory of a Member State to travel to another Member State.

Art. 4.2

Art. 4.3

Art.4.4

Effective transposition The Transposition Note asserts that no legislative implementation is required of the whole of Article 4, given the general situation under UK law with regard to passports. Persons seeking to leave the UK who hold a valid ID card or passport do not require an exit visa under UK law. Immigration and border control legislation does not impose any conditions (or, conversely, rights) to exit the UK, as this remains an issue of prerogative. In practice, a valid ID card or passport must usually be produced upon exiting the UK. This is a case where the existing laws and regulations adequately transpose the Directive.

No exit visa or equivalent formality may be imposed on the persons to whom paragraph 1 applies.

Not transposed

Member States shall, acting in accordance with their laws, issue to their own nationals, and renew, an identity card or passport stating their nationality.

Not transposed

The passport shall be valid at least for all Member States and for countries through which the holder

Not transposed

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Comments/Problems

Y

This is a case of pre-established harmony: the obligation of transposition considered originally as absolute was softened as transposition would not be considered necessary when national law is already in harmony with the requirements of the Directive (Case 102/79, Commission v. Belgium, [1979] ECR 1473). Effective transposition

Y

Persons seeking to leave the UK who hold a valid ID card or passport do not require an exit visa under UK law. Effective transposition

Y

Anyone who is a British citizen is entitled to apply for a UK passport (www.ips.gov.uk). The issuing of British passports and their conditions are a matter of royal prerogative; there is no legal right to a passport. Effective transposition UK passports are valid throughout Europe and

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Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member-States Art

Art. 5.1

Citation of the Article of the Directive

must pass when travelling between Member States. Where the law of a Member State does not provide for identity cards to be issued, the period of validity of any passport on being issued or renewed shall be not less than five years. Right on Entry 1. Without prejudice to the provisions on travel documents applicable to national border controls, Member States shall grant Union citizens leave to enter their territory with a valid identity card or passport and shall grant family members who are not nationals of a Member State leave to enter their territory with a valid passport.

No entry visa or equivalent formality may be imposed on Union citizens.

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Corresponding national provision (legal ref. & art.)

The Immigration (European Economic Area) Regulations 2006 Regulation 11(1) Regulation 11(2)

Not transposed But see also Immigration Act 1988 s7

Complete text of national provision (in language of Member State)

Fully in accord? (y/n)

(1) An EEA national must be admitted to the United Kingdom if he produces on arrival a valid national identity card or passport issued by an EEA State. (2) A person who is not an EEA national must be admitted to the United Kingdom if he is a family member of an EEA national, a family member who has retained the right of residence or a person with a permanent right of residence under regulation 15 and produces on arrival – a) a valid passport; and b) an EEA family permit, a residence card or a permanent residence card

N, Incorrect

7 Persons exercising Community rights and nationals of member States (1) A person shall not under the principal Act require leave to enter or remain in the United Kingdom in any case in which he is entitled to do so by virtue of an enforceable Community right or of any provision made under section 2(2) of the [1972 c. 68.] European Communities Act 1972. (2) The Secretary of State may by order made by statutory instrument give leave to enter the United Kingdom for a limited period to any class of persons who are nationals of member States but who are not entitled to enter the United Kingdom as mentioned in subsection (1) above; and any such order may give

Y

Comments/Problems

remain valid for 10 years after the date of issue (www.ips.gov.uk). There is no legislative basis regulating the validity of passports; once again it is a matter of Crown prerogative. In practise the UK recognises passports issued by all other Member States, and the British passport enables travel through all Member State countries. Incorrect transposition There are problems with the additional documents which non EEA family members are required to produce. Moreover, the provisions of the Regulation need to be read in the light of the European Case Work Instructions to Entry Clearance Officers available on the Borders and Immigration Website, and advice and guidance on that website to applicants, including the EEA Family Permit form, which appears to require applicants to submit a large number of supporting documents with their application which are not required by the Directive. This is based on Regulation 12(3) in respect of extended family members, but is also applied by the UK rules so far as requests for documents are concerned, to all nonEEA family members. We will expand upon this in the Conformity Study. Effective transposition The underlying departure from the regime of the Immigration Acts is established by s7 of the Immigration Act 1988, which is included here as an instance of prior conformity. The right is also guaranteed by right of entry set out in regulation 11(1) and 11(2). This consequence is inherent in UK immigration and border control law.

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Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member-States Art

Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

Complete text of national provision (in language of Member State)

Fully in accord? (y/n)

Comments/Problems

leave subject to such conditions as may be imposed by the order. (3) References in the principal Act to limited leave shall include references to leave given by an order under subsection (2) above and a person having leave by virtue of such an order shall be treated as having been given that leave by a notice given to him by an immigration officer within the period specified in paragraph 6(1) of Schedule 2 to that Act. Art. 5.2

2. Family members who are not nationals of a Member State shall only be required to have an entry visa in accordance with Regulation (EC) No 539/2001 or, where appropriate, with national law. For the purposes of this Directive, possession of the valid residence card referred to in Article 10 shall exempt such family members from the visa requirement.

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The Immigration (European Economic Area) Regulations 2006 Regulation 11(2) Regulation 12(1) and (2)

(2) A person who is not an EEA national must be admitted to the United Kingdom if he is a family member of an EEA national, a family member who has retained the right of residence or a person with a permanent right of residence under regulation 15 and produces on arrival – (a) a valid passport; and (b) an EEA family permit, a residence card or a permanent residence card 12.—(1) An entry clearance officer must issue an EEA family permit to a person who applies for one if the person is a family member of an EEA national and— (a) the EEA national— (i) is residing in the UK in accordance with these Regulations; or (ii) will be travelling to the United Kingdom within six months of the date of the application and will be an EEA national residing in the United Kingdom in accordance with these Regulations on arrival in the United Kingdom; and (b) the family member will be accompanying the EEA national to the United Kingdom or joining him there and— (i) is lawfully resident in an EEA State; or (ii) would meet the requirements in the immigration rules (other than those relating to entry clearance) for leave to enter the United Kingdom as the family member of the EEA national or, in the case of direct

N, Incorrect

Incorrect transposition While the situation appears in conformity for family members applying where they have been previously resident in an EEA state and can produce documentation issued by that state in accordance with the Directive, there are problems for those who are applying when resident outside the EEA states. Regulation 12(1)(b)(ii) means that UK domestic Immigration Rules are to be applied to family members seeking entry into the UK when they are applying when based outside the EU, or where lawful residence in another EEA state cannot be established. This does not appear to have been the case previously under UK law, but is related to the UK’s interpretation of the Akrich and Jia case law, interpretations which clearly precede the decisive clarifications contained in the most recent case of Metock. Furthermore the provisions of the Regulation need to be read in the light of the European Case Work Instructions to Entry Clearance Officers available on the Borders and Immigration Website, and advice and guidance on that website to applicants, including the EEA Family Permit form, which appears to require applicants to submit a large number of supporting documents with their application which are not required by the Directive. We will expand upon this in the Conformity Study.

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Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member-States Art

Art. 5.3

Art. 5.4

Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

Member States shall grant such persons every facility to obtain the necessary visas. Such visas shall be issued free of charge as soon as possible and on the basis of an accelerated procedure.

The Immigration (European Economic Area) Regulations 2006

3. The host Member State shall not place an entry or exit stamp in the passport of family members who are not nationals of a Member State provided that they present the residence card provided for in Article 10. 4. Where a Union citizen, or a family member who is not a national of a Member State, does not have the necessary travel documents or, if

The Immigration (European Economic Area) Regulations 2006

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Complete text of national provision (in language of Member State)

descendants or dependent direct relatives in the ascending line of his spouse or his civil partner, as the family member of his spouse or his civil partner, were the EEA national or the spouse or civil partner a person present and settled in the United Kingdom. (2) An entry clearance officer may issue an EEA family permit to an extended family member of an EEA national who applies for one if— (a) the relevant EEA national satisfies the condition in paragraph (1)(a); (b) the extended family member wishes to accompany the relevant EEA national to the United Kingdom or to join him there; and (c) in all the circumstances, it appears to the entry clearance officer appropriate to issue the EEA family permit. An EEA family permit issued under this regulation shall be issued free of charge and as soon as possible

Fully in accord? (y/n)

Comments/Problems

The Regulations do not make an explicit distinction between those who are visa nationals and those who do not require visas, as the same documentation is required from all non-EEA nationals. In practice, this is easier to obtain for non-visa nationals, because of the operation of the Immigration Rules.

N, Incorrect

Regulation 12 (4)

An immigration officer may not place a stamp in the passport of a person admitted to the United Kingdom under this regulation who is not an EEA national if the person produces a residence card or a permanent residence card

Y

Before an immigration officer refuses admission to the United Kingdom to a person under this regulation because the person does not produce on arrival a document mentioned in paragraph (1) or (2), the

Y

Incorrect transposition since the obligation to facilitate the obtaining of the visas is not transposed.

There are no deadlines in the internal rules. There are concerns highlighted above about the numbers of supporting documents which are apparently required and some doubts in practice about the speed of issuing the documents which are evidenced by the Effective transposition This covers residence cards and permanent residence cards issued by any Member State.

Regulation 11(3) The Immigration (European Economic Area) Regulations 2006

Effective transposition

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Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member-States Art

Citation of the Article of the Directive

required, the necessary visas, the Member State concerned shall, before turning them back, give such persons every reasonable opportunity to obtain the necessary documents or have them brought to them within a reasonable period of time or to corroborate or prove by other means that they are covered by the right of free movement and residence.

5. The Member State may require the person concerned to report his/ her presence within its territory within a reasonable and nondiscriminatory period of time. Failure to comply with this requirement may make the person concerned liable to proportionate and non-discriminatory sanctions. Chapter III. RIGHT OF RESIDENCE Art. 6.1 Right of residence for more than three months Art.5.5

Art. 6.2

1. Union citizens shall have the right of residence on the territory of another Member State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport. 2. The provisions of paragraph 1 shall also apply to family members in possession of a valid passport who are not nationals of a Member State, accompanying or joining the Union citizen.

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Corresponding national provision (legal ref. & art.) Regulation 11(4)

Complete text of national provision (in language of Member State)

Fully in accord? (y/n)

immigration officer must give the person every reasonable opportunity to obtain the document or have it brought to him within a reasonable period of time or to prove by other means that he is – a) an EEA national; b) a family member of an EEA national with a right to accompany that national or join him in the United Kingdom; or c) a family member who has retained the right of residence or a person with a permanent right of residence under regulation 15

Not transposed

The Immigration (European Economic Area) Regulations 2006 Regulation 13(1)

The Immigration (European Economic Area) Regulations 2006

Comments/Problems

This is not required under UK law for EEA nationals or the family members of EEA nationals.

An EEA national is entitled to reside in the United Kingdom for a period not exceeding three months beginning on the date on which he is admitted to the United Kingdom provided that he holds a valid national identity card or passport issued by an EEA State.

Y

Effective transposition

(2) A family member of an EEA national residing in the United Kingdom under paragraph (1) who is not himself an EEA national is entitled to reside in the United Kingdom provided that he holds a valid passport.

Y

Effective transposition Although in practice non EEA family members previously not resident in another EEA state may find it hard to access the UK.

Regulation 13(2)

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Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member-States Art

Citation of the Article of the Directive

Art.7.1 (a)

Right of residence for more than three months All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they: (a) are workers or self-employed persons in the host Member State; or

Art.7.1 (b)

(b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or

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Corresponding national provision (legal ref. & art.) The Immigration (European Economic Area) Regulations 2006 Regulation 14(1) Regulation 6(1)

The Immigration (European Economic Area) Regulations 2006 Regulation 14(1) Regulation 6(1)(d)

Complete text of national provision (in language of Member State)

Fully in accord? (y/n)

14(1) A qualified person is entitled to reside in the United Kingdom for so long as he remains a qualified person.

Y

6(1) In these Regulations, “qualified person” means a person who is an EEA national and in the United Kingdom as… (d) a self-sufficient person

Regulation 4(1)(c)

4(1)(c) “self-sufficient person” means a person who has(i) sufficient resources not to become a burden on the social assistance system of the United Kingdom during his period of residence; and (ii) comprehensive sickness insurance cover in the United Kingdom

Regulation 4(4)

4(4) For the purposes of paragraphs (1)(c) and (d) and paragraphs (2) and (3), the resources of the person concerned and, where applicable, any family members, are to be regarded as sufficient if they exceed the maximum level of resources which a United Kingdom national and his family members may possess if he is to become eligible for social assistance under the United Kingdom benefit system.

Effective transposition Although the conceptual device of the creation of a category: ‘qualified persons’.

6(1) In these Regulations, “qualified person” means a person who is an EEA national and in the United Kingdom as(a) a jobseeker; (b) a worker; (c) a self-employed person 14(1) A qualified person is entitled to reside in the United Kingdom for so long as he remains a qualified person

Comments/Problems

The UK inserts jobseekers in this category as ‘qualified persons’ although the Directive treats them separately.

Y

Effective transposition. UK has made use of the option under Article 8(4) of the Directive regarding indicative amounts in Regulation 4(4), but there has been no attempt in the Regulations to transpose the further elaborations of the issue of what constitutes an unreasonable burden contained in Recital 16 of the Directive.

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Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.) Immigration Rules, Part 7, paras. 257C-E

Complete text of national provision (in language of Member State)

Requirements for leave to enter or remain as the primary carer or relative of an EEA national selfsufficient child 257C. The requirements to be met by a person seeking leave to enter or remain as the primary carer or relative of an EEA national self-sufficient child are that the applicant: (i) is: (a) the primary carer; or (b) the parent; or (c) the sibling, of an EEA national under the age of 18 who has a right of residence in the United Kingdom under the 2006 EEA Regulations as a self-sufficient person; and (ii) is living with the EEA national or is seeking entry to the United Kingdom in order to live with the EEA national; and (iii) in the case of a sibling of the EEA national: (a) is under the age of 18 or has current leave to enter or remain in this capacity; and (b) is unmarried and is not a civil partner, has not formed an independent family unit and is not leading an independent life; and (iv) can, and will, be maintained and accommodated without taking employment or having recourse to public funds; and (v) if seeking leave to enter, holds a valid United Kingdom entry clearance for entry in this capacity. In this paragraph, "sibling", includes a half-brother or half-sister and a stepbrother or stepsister.

Fully in accord? (y/n)

Comments/Problems

These excerpts from the Immigration Rules are the UK’s implementation/transposition of the cases of Chen and Baumbast. The essence of the Rules is that the carer must be able to support the child without recourse to public funds and without taking employment. The corollary is this is that in practice it is almost impossible for the EEA national child to be self-sufficient, if his or her parents and carers do not – by virtue of their relationship with the EU citizen who is resident in a Member State other than the one of which he or she is a national – have the right to take employment, as ought – at first sight – to be the case under Article 23 of the Directive. This point is discussed further in the Conformity Study.

Leave to enter or remain as the primary carer or relative of an EEA national self-sufficient child 257D. Leave to enter or remain in the United Kingdom as the primary carer or relative of an EEA national self-sufficient child may be granted for a period not exceeding five years or the remaining period of validity of any residence permit held by the EEA national under the 2006 EEA Regulations,

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Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

Complete text of national provision (in language of Member State)

Fully in accord? (y/n)

Comments/Problems

whichever is the shorter, provided that, in the case of an application for leave to enter, the applicant is able to produce to the Immigration Officer, on arrival a valid entry clearance for entry in this capacity or, in the case of an application for leave to remain, the applicant is able to satisfy the Secretary of State that each of the requirements of paragraph 257C (i) to (iv) is met. Leave to enter or remain is to be subject to a condition prohibiting employment and recourse to public funds. Refusal of leave to enter or remain as the primary carer or relative of an EEA national self-sufficient child 257E. Leave to enter or remain in the United Kingdom as the primary carer or relative of an EEA national self-sufficient child is to be refused if, in the case of an application for leave to enter, the applicant is unable to produce to the Immigration Officer on arrival a valid United Kingdom entry clearance for entry in this capacity or, in the case of an application for leave to remain, if the applicant is unable to satisfy the Secretary of State that each of the requirements of paragraph 257C (i) to (iv) is met. Art.7.1 (c)

(c) - are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and

The Immigration (European Economic Area) Regulations 2006 Regulation 14(1)

Regulation 6(1)(e)

Regulation

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14(1) A qualified person is entitled to reside in the United Kingdom for so long as he remains a qualified person. 6(1) In these Regulations, “qualified person” means a person who is an EEA national and in the United Kingdom as… (e) a student.

Y

Effective transposition The transposition of accredited in the host MS is done by reference to what is now the Department for Innovations, Universities and Skills Register of Education and Training Providers (http://www.dfes.gov.uk/providersregister/).

4(1)(d) “student” means a person who(i) is enrolled at a private or public establishment, included on the Department for Education and Skill’s Register of Education and Training Providers or financed

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Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member-States Art

Art.7.1 (d)

Citation of the Article of the Directive

- have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence; or (d) are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c).

Corresponding national provision (legal ref. & art.) 4(1)(d)(i)

The Immigration (European Economic Area) Regulations 2006 Regulation 14(1) Regulation 6(1)(e) Regulation 4(1)(d) The Immigration (European Economic Area) Regulations 2006

Art. 7.3 (a)

2. The right of residence provided for in paragraph 1 shall extend to family members who are not nationals of a Member State, accompanying or joining the Union citizen in the host Member State, provided that such Union citizen satisfies the conditions referred to in paragraph 1(a), (b) or (c). 3. For the purposes of paragraph 1(a), a Union citizen who is no

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from public funds, for the principal purpose of following a course of study, including vocational training; (ii) has comprehensive sickness insurance cover in the United Kingdom; and (iii) assures the Secretary of state, by means of a declaration, or by such equivalent means as the person may choose, that he has sufficient resources not to become a burden on the social assistance system of the United Kingdom during his period of residence

Fully in accord? (y/n)

Y

Comments/Problems

Effective transposition. See, however, problems with the case law relating to the Court of Justice’s judgment in Chen, which is discussed in the Conformity Study which may be thought to introduce a limitation on how the resources for self-sufficiency are generated which was not contemplated in the ECJ’s judgment..

14(2) A family member of a qualified person residing in the United Kingdom under paragraph (1) or of an EEA national with a permanent right of residence under regulation 15 is entitled to reside in the United Kingdom so long as he remains the family member of the qualified person or EEA national

Y

Effective transposition

Y

Regulation 14(2)

14(2) A family member of a qualified person residing in the United Kingdom under paragraph (1) or of an EEA national with a permanent right of residence under regulation 15 is entitled to reside in the united Kingdom so long as he remains the family member of the qualified person or EEA national

The UK legislation applies on this point regardless of nationality. The provisions should be read in conjunction with the provisions transposing Articles 12 and 13 of the Directive on the retention of the status of family member. However, the Regulation is a little confusing because it refers both to ‘qualified persons’ and to persons with a permanent right of residence, which might lead – erroneously – to the conclusion that family reunification can only take place after the permanent right of residence is acquired. Effective transposition

The Immigration (European

5(7) For the purposes of this regulation(a) …

Y

Regulation 14(2)

Art. 7.2

Complete text of national provision (in language of Member State)

The Immigration (European Economic Area) Regulations 2006

The UK legislation applies on this point regardless of nationality. The provisions should be read in conjunction with the provisions transposing Articles 12 and 13 of the Directive on the retention of the status of family member.

Effective transposition.

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Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member-States Art

Citation of the Article of the Directive

longer a worker or self-employed person shall retain the status of worker or self-employed person in the following circumstances: (a) he/she is temporarily unable to work as the result of an illness or accident;

Art. 7.3 (b)

(b) he/she is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a jobseeker with the relevant employment office;

Corresponding national provision (legal ref. & art.) Economic Area) Regulations 2006 Regulation 5(7)(b) Regulation 6(2)(a)

The Immigration (European Economic Area) Regulations 2006 Regulation 5(7)(c)

Complete text of national provision (in language of Member State)

Fully in accord? (y/n)

(b) periods of inactivity due to illness or accident; and (c) … shall be treated as periods of activity as a worker or self-employed person, as the case may be 6(2) A person who is no longer working shall not cease to be treated as a worker for the purpose of paragraph 1(b) if(a) he is temporarily unable to work as the result of an illness or accident 5(7) For the purposes of this regulation(a) … (b) … (c) in the case of a worker, periods of involuntary unemployment duly recorded by the relevant employment office,

Comments/Problems

There is overlap between these provisions, as seen from 5(7) and 6(2), but broadly Regulation 5 concerns a worker or self-employed person who has ceased activity, whereas Regulation 6 sets out the definition of a qualified person.

Y

Effective transposition.

N, Incorrect

Incorrect transposition

Shall be treated as periods of activity as a worker or self-employed person, as the case may be Regulation 6(2)(b)

Art. 7.3 (c)

(c) he/she is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than a year or after having become involuntarily unemployed during the first twelve months and has registered as a job-seeker with the relevant employment office. In this

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The Immigration (European Economic Area) Regulations 2006 Regulation 5(7)(c)

6(2) A person who is no longer working shall not cease to be treated as a worker for the purpose of paragraph 1(b) if – (b) he is in duly recorded involuntary unemployment after having been employed in the United Kingdom, provided that he has registered as a jobseeker with the relevant employment office and(i) he was employed for one year or more before becoming unemployed… 5(7) For the purposes of this regulation(a) … (b) … (c) in the case of a worker, periods of involuntary unemployment duly recorded by the relevant employment office, Shall be treated as periods of activity as a worker or self-employed person, as the case may be.

The UK has chosen, prima facie, the minimum option of six months for a person to retain the status of worker. The transposing legislation does not precisely cover the case of a person who has been in a fixed term employment contract of less than a year or who has

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Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member-States Art

Citation of the Article of the Directive

case, the status of worker shall be retained for no less than six months;

Art.7.3 (d)

Art. 7.4

Art. 8.1

(d) he/she embarks on vocational training. Unless he/she is involuntarily unemployed, the retention of the status of worker shall require the training to be related to the previous employment. 4. By way of derogation from paragraphs 1(d) and 2 above, only the spouse, the registered partner provided for in Article 2(2)(b) and dependent children shall have the right of residence as family members of a Union citizen meeting the conditions under 1(c) above. Article 3(2) shall apply to his/her dependent direct relatives in the ascending lines and those of his/her spouse or registered partner. Administrative Union citizens

formalities

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for

Corresponding national provision (legal ref. & art.)

Complete text of national provision (in language of Member State)

Regulation 6(2)(b)

6(2) A person who is no longer working shall not cease to be treated as a worker for the purpose of paragraph 1(b) if – (c) he is in duly recorded involuntary unemployment after having been employed in the United Kingdom, provided that he has registered as a jobseeker with the relevant employment office and(i) he was employed for one year or more before becoming unemployed; (ii) he has been unemployed for no more than six months; or (iii) he can provide evidence that he is seeking employment in the United Kingdom and has a genuine chance of being engaged

The Immigration (European Economic Area) Regulations 2006

A person who is no longer working shall not cease to be treated as a worker for the purpose of paragraph (1)(b) if(d) he is involuntarily unemployed and has embarked on vocational training; or (e) he has voluntarily ceased working and has embarked on vocational training that is related to his previous employment A person shall not be treated under paragraph (1)(b) or (c) as the family member of a student residing in the United Kingdom after the period of three months beginning on the date on which the student is admitted to the United Kingdom unless – (a) in the case of paragraph (b), the person is the dependent child of the student or of his spouse or civil partner; or (b) the student also falls within one of the other categories of qualified persons mentioned in regulation 6(1)

Regulation 6(2)(c) and 6(2)(d) The Immigration (European Economic Area) Regulations 2006 Regulation 7(2)

Not transposed

Fully in accord? (y/n)

Comments/Problems

become unemployed during the first year, and thus is not an effective transposition. For the rest, it could be said that the UK legislation is at least as generous as the Directive, for it should be noted that the conditions (i)-(iii) in Regulation 6(2)(c) are alternatives not cumulatives, so it is always open to a person to show, even after six months, or even without being employed for twelve months, that he has ‘a genuine chance of being engaged’, thus reflecting the case law of the Court of Justice in this respect.

Y

Effective transposition

Y

Effective transposition Although it would be desirable if the Regulation were to clarify the status of those family members of students who are consigned to the status of what the Regulation calls ‘extended family members’ under the facilitation provisions of Article 3(2), as suggested by the Directive. However, in the absence of a specific provision, it should be assumed that they are dealt with as extended family members under the Regulations.

Registration not required

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Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member-States Art

Art. 8.2

Art. 8.3

Citation of the Article of the Directive

1. Without prejudice to Article 5(5), for periods of residence longer than three months, the host Member State may require Union citizens to register with the relevant authorities. 2. The deadline for registration may not be less than three months from the date of arrival. A registration certificate shall be issued immediately, stating the name and address of the person registering and the date of the registration. Failure to comply with the registration requirement may render the person concerned liable to proportionate and non-discriminatory sanctions.

3. For the registration certificate to be issued, Member States may only require that — Union citizens to whom point (a) of Article 7(1) applies present a valid identity card or passport, a confirmation of engagement from

Milieu Ltd & Europa Institute

Corresponding national provision (legal ref. & art.)

Complete text of national provision (in language of Member State)

Fully in accord? (y/n)

The Immigration (European Economic Area) Regulations 2006

The Secretary of State must issue a registration certificate to a qualified person immediately on application ‌

N, Incorrect

A registration certificate issued under this regulation shall state the name and address of the person registering and the date of registration and shall be issued free of charge.

The Immigration (European Economic Area) Regulations 2006

(1) The Secretary of State must issue a registration certificate to a qualified person immediately on application and production of(a) a valid identity card or passport issued by an EEA State; (b) proof that he is a qualified person.

Regulation 16(1)

Incorrect transposition The transposition only refers to the second part of Article 8(2). There are no sanctions since the registration is not compulsory. There is no deadline. It should be noted that workers (and only workers) who are nationals of Bulgaria, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia or Slovenia are not eligible to apply for a registration certificate until they have completed 12 months continuous employment in the United Kingdom (see http://www.ukba.homeoffice.gov.uk/eucitizens/appl yingundereuropeanlaw/). The reason that the UK applies this rule is because of the restrictions on accessing benefits they have placed on this group of so-called A8 and A2 nationals. A registration certificate is proof of a right to reside in the UK, which is necessary to access the relevant benefits. It is not compulsory for these groups to apply for a Registration Certificate when they become entitled to. There does not appear to be any basis in the Directive or the relevant transitional provisions for refusing Registration Certificates to some A8 and A2 nationals.

Regulation 16(1) Regulation 16(7)

Comments/Problems

N, Incorrect

Incorrect transposition Effective transposition so far as concerns the Regulations themselves. Proof that a person is a qualified person is a general phrase and covers any categories of qualified persons, including workers and the self-employed.

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Citation of the Article of the Directive

the employer or a certificate of employment, or proof that they are self-employed persons,

— Union citizens to whom point (b) of Article 7(1) applies present a valid identity card or passport and provide proof that they satisfy the conditions laid down therein,

Corresponding national provision (legal ref. & art.) Regulation 16(2)

The Immigration (European Economic Area) Regulations 2006 Regulation 16(1) Regulation 4(4)

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Complete text of national provision (in language of Member State)

Fully in accord? (y/n)

(2) In the case of a worker, confirmation of the worker’s engagement from his employer or a certificate of employment is sufficient proof for purposes of paragraph (1)(b).

The Secretary of State must issue a registration certificate to a qualified person immediately on application and production of(a) a valid identity card or passport issued by an EEA State; (b) proof that he is a qualified person (4) For the purposes of paragraphs (1)(c) and (d) and paragraphs (2) and (3), the resources of the person concerned and, where applicable, any family members, are to be regarded as sufficient if they exceed the maximum level of resources which a United Kingdom national and his family members may possess if he is to become eligible for social assistance under the United Kingdom benefit system.

Comments/Problems

However, the application form requires information regarding employment, salary, plus extensive supporting documentation (see pg 13 of the form). It also includes extensive personal history section, including both criminal and civil convictions. Registration certificate form: http://www.ukba.homeoffice.gov.uk/sitecontent/app licationforms/eea/eea1.pdf The form seeks one of: • Contract(s) of employment • Most recent wage slips (at least one) • Letter(s) from employer confirming your employment For self-employed persons: • A lease on business premises • Construction Industry Scheme (CIS) card (for the building trade) • Bank statement(s) • Invoices • Inland Revenue self-assesment forms • Evidence of national insurance contributions being paid. N, Incorrect

Incorrect transposition Effective transposition so far as concerns the text of the Regulations. However, the application form requires information regarding employment, salary, plus extensive supporting documentation (see pg 13 of the form). It also includes extensive personal history section, including both criminal and civil convictions. Registration certificate form: http://www.ukba.homeoffice.gov.uk/sitecontent/app licationforms/eea/eea1.pdf For the economically self-sufficient: Evidence of comprehensive sickness insurance and funds sufficient to maintain yourself and any family

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Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member-States Art

Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

Complete text of national provision (in language of Member State)

Fully in accord? (y/n)

Comments/Problems

members included in this application during the time you intend to reside on this basis. These funds can come from the employment or selfemployment of any of your family members residing in the UK with you. Documentary evidence of their employment or funds should be supplied For retired persons: Evidence that you are in receipt of a pension.

Art. 8.4

— Union citizens to whom point (c) of Article 7(1) applies present a valid identity card or passport, provide proof of enrolment at an accredited establishment and of comprehensive sickness insurance cover and the declaration or equivalent means referred to in point (c) of Article 7(1). Member States may not require this declaration to refer to any specific amount of resources.

The Immigration (European Economic Area) Regulations 2006

4. Member States may not lay down a fixed amount which they regard as ‘sufficient resources’, but they must take into account the personal situation of the person concerned. In all cases this amount shall not be higher than the threshold below which nationals of the host Member State become eligible for social assistance, or, where this criterion is not applicable, higher than the minimum social security pension paid by the host Member State.

The Immigration (European Economic Area) Regulations 2006

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Regulation 16(1) Regulation 4(1)(d)

Regulation 4(4)

The Secretary of State must issue a registration certificate to a qualified person immediately on application and production of(a) a valid identity card or passport issued by an EEA State; (b) proof that he is a qualified person

N, Incorrect

However, the application form requires information regarding employment, salary, plus extensive supporting documentation (see pg 13 of the form). It also includes extensive personal history section, including both criminal and civil convictions. Registration certificate form: http://www.ukba.homeoffice.gov.uk/sitecontent/app licationforms/eea/eea1.pdf

4(1)(d) “student” means a person who – (iii) assures the Secretary of State, by means of a declaration, or by such equivalent means as the person may choose, that he has sufficient resources not to become a burden on the social assistance system of the United Kingdom during his period of residence

For the purposes of paragraphs (1)(c) and (d) and paragraphs (2) and (3), the resources of the person concerned and, where applicable, any family members, are to be regarded as sufficient if they exceed the maximum level of resources which a United Kingdom national and his family members may possess if he is to become eligible for social assistance under the United Kingdom benefit system.

Incorrect transposition.

Y

For students: - a school, college or university letter confirming enrolment and the completion date of the course, and - a bank statement or evidence of a grant or scholarship. Effective transposition. The Regulation refers back to the eligibility for the social assistance benefits but does not provide precise guidelines on sufficiency.

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Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member-States Art

Citation of the Article of the Directive

Art. 8.5

5. For the registration certificate to be issued to family members of Union citizens, who are themselves Union citizens, Member States may require the following documents to be presented:

(a) a valid identity card or passport;

(b) a document attesting to the existence of a family relationship or of a registered partnership;

Corresponding national provision (legal ref. & art.) The Immigration (European Economic Area) Regulations 2006

Fully in accord? (y/n)

The Secretary of State must issue a registration certificate to an EEA national who is a family member of a qualified person or of an EEA national with a permanent right of residence under regulation 15 immediately on application and production of-

Y

Effective transposition

(a) a valid identity card or passport issued by an EEA State; and

Y

However, the Regulation is a little confusing because it refers both to ‘qualified persons’ and to persons with a permanent right of residence, which might lead – erroneously – to the conclusion that family reunification can only take place after the permanent right of residence is acquired. Effective transposition

(b) proof that the applicant is such a family member

Y

Effective transposition

Y

Effective application

Y

This is not necessary as the registration certificate is not required by the EEA national who is a qualified person. However, the UK does not have a separate application form for registration certificates for family members and Form EEA1 may give the impression that the EEA national must apply on behalf of the family member rather than the family member applying on their own account. See http://www.ukba.homeoffice.gov.uk/sitecontent/app licationforms/eea/eea1.pdf. Effective transposition

Regulation16(3)

The Immigration (European Economic Area) Regulations 2006 Regulation16(3)( a) The Immigration (European Economic Area) Regulations 2006

(c) where appropriate, the registration certificate of the Union citizen whom they are accompanying or joining;

Regulation16(3)( b) The Immigration (European Economic Area) Regulations 2006

(d) in cases falling under points (c) and (d) of Article 2(2), documentary evidence that the conditions laid down therein are met;

The Immigration (European Economic Area) Regulations 2006

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Complete text of national provision (in language of Member State)

(b) proof that the applicant is such a family member

Comments/Problems

Proof of being a ‘family member’ necessarily requires proof of satisfying the defining characteristics of a family member, which are set

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Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member-States Art

Citation of the Article of the Directive

(e) in cases falling under Article 3(2)(a), a document issued by the relevant authority in the country of origin or country from which they are arriving certifying that they are dependants or members of the household of the Union citizen, or proof of the existence of serious health grounds which strictly require the personal care of the family member by the Union citizen;

Corresponding national provision (legal ref. & art.) Regulation16(3)( b)

Complete text of national provision (in language of Member State)

The Immigration (European Economic Area) Regulations 2006

16(5) The Secretary of State may issue a registration certificate to an extended family member not falling within regulation 7(3) who is an EEA national if – (a) the relevant EEA national in relation to the extended family member is a qualified person or an EEA national with a permanent right of residence under regulation 15; and (b) in all the circumstances it appears to the Secretary of State appropriate to issue the registration certificate

Regulation 16(5) Regulation 8

Fully in accord? (y/n)

N, Incorrect

The Immigration (European Economic Area) Regulations 2006 Regulation 16(5) Regulation 8(5)

16(5) The Secretary of State may issue a registration certificate to an extended family member not falling within regulation 7(3) who is an EEA national if – (a) the relevant EEA national in relation to the extended family member is a qualified person or an EEA national with a permanent right of residence under regulation 15; and (b) in all the circumstances it appears to the Secretary of State appropriate to issue the registration certificate

out in Regulation 7 and 8, e.g. proof that they are a spouse, direct descendent or a dependant relative etc. Section 2 of the form asks for documentary evidence of the relationship with family members included in the qualified person’s application. Incorrect transposition The Regulation does not follow the scheme of the Directive in requiring a certificate from the country or origin or country from which the EEA national and family member(s) are arriving, but handing instead discretion to the Secretary of State. While registration certificates are not strictly compulsory, it is clear that for an extended family member they represent one of the means by which they can be recognised as a family member under Regulation 7(3) (along with the EEA family permit or the residence card).

[For definition of “extended family member” see regulation 8, including a reference to ‘strictly requires the personal care of the EEA national his spouse or his civil partner].

(f) in cases falling under Article 3(2)(b), proof of the existence of a durable relationship with the Union citizen.

Comments/Problems

N, Incorrect

Incorrect transposition While this comes closer to the text of the Directive, in the sense that Regulation 8(5) refers to proof of being in a durable relationship, ultimately Regulation 16(5) gives more discretion to the Secretary of State than seems permitted by the Directive.

8(5) A person satisfies the condition in this paragraph if the person is the partner of the EEA national (other than civil partner) and can prove to the decision maker that he is in a durable relationship with the EEA national

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Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member-States Art

Citation of the Article of the Directive

Art. 9.1

Administrative formalities for family members who are not nationals of a Member State. 1. Member States shall issue a residence card to family members of a Union citizen who are not nationals of a Member State, where the planned period of residence is for more than three months.

Art. 9.2

Art. 9.3

Art.10.1

Corresponding national provision (legal ref. & art.) The Immigration (European Economic Area) Regulations 2006 Regulation 17(1)

2. The deadline for submitting the residence card application may not be less than three months from the date of arrival.

Not transposed

3. Failure to comply with the requirement to apply for a residence card may make the person concerned liable to proportionate and non-discriminatory sanctions.

Not transposed

Issue of residence cards

The Immigration (European Economic Area) Regulations 2006

1. The right of residence of family members of a Union citizen who are

Milieu Ltd & Europa Institute

Complete text of national provision (in language of Member State)

Fully in accord? (y/n)

(1) The Secretary of State must issue a residence card to a person who is not an EEA national and is the family member of a qualified person or of an EEA national with a permanent right of residence under regulation 15 on application and production of(a) a valid passport; and (b) proof that the applicant is such a family member

Y

Effective transposition There is no reference to the length of stay in the Regulations. It should be noted that non EEA nationals are also not subject to the requirement to register with the police.

Y, More favourab le

Y, More favourab le

17(1) The Secretary of State must issue a residence card to a person who is not an EEA national and is the family member of a qualified person or of an EEA national with a permanent right of residence

Comments/Problems

Y

Not all non EEA family members immediately qualify for a residence card. Family members who are not themselves nationals of an EEA country and who are in the United Kingdom with a national of Bulgaria, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia or Slovenia are not eligible to apply for a residence card until the national of those countries has been employed continuously in the United Kingdom for 12 months. Until the 12 months is completed, a family member who is not an EEA national can apply for a family member residence stamp to confirm his/her right of residence. See UK Border Agency website which makes available the most up to date versions of the forms: http://www.ukba.homeoffice.gov.uk/eucitizens/appl yingundereuropeanlaw/ Effective and more favourable transposition No deadline is set by the Regulations; this follows from the fact that there is no requirement to applying for the residence card. Effective and more favourable transposition As there is no requirement to apply for a residence card, this provision does not apply in the UK, where there are no sanctions for failure to apply, because there is no requirement to apply. Effective transposition. Notice that the residence card takes the form of a stamp in the applicant’s passport.

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Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member-States Art

Citation of the Article of the Directive

not nationals of a Member State shall be evidenced by the issuing of a document called ‘Residence card of a family member of a Union citizen’ no later than six months from the date on which they submit the application. A certificate of application for the residence card shall be issued immediately.

Art.10.2 (a)

Art.10.2 (b)

Art.10.2 (c)

2. For the residence card to be issued, Member States shall require presentation of the following documents: (a) a valid passport;

(b) a document attesting to the existence of a family relationship or of a registered partnership;

(c) the registration certificate or, in the absence of a registration system, any other proof of residence in the host Member State of the Union citizen whom they are

Milieu Ltd & Europa Institute

Corresponding national provision (legal ref. & art.) Regulation 17(1)

Complete text of national provision (in language of Member State)

Fully in accord? (y/n)

under regulation 15 on application and production of – (a) a valid passport; and (b) proof that the applicant is such a family member

Comments/Problems

What is noticeable about the UK Regulations is that while the Directive appears to require residence cards to be issued, the UK measures only focus on the duty of the Secretary of State to issue residence cards, and not on a duty on the EEA national or family member to apply for one. The scheme of the Directive, which essentially assumes the obligation to have a residence card, is thus not the same as the traditional approach in the UK to such matters, and leads to dissonances which have not – in the past – resulted in major issues about the UK’s compliance with free movement law.

Regulation 17(3)

(3) On receipt of an application under paragraph (1) or (2) and the documents that are required to accompany the application the Secretary of State shall immediately issue the applicant with a certificate of application for the residence card and the residence card shall be issued no later than six months after the date on which the application and documents are received.

Regulation 17(6)

(6) A residence card issued under this regulation may take the form of a stamp in the applicant’s passport and shall be entitled “residence card of a family member of an EEA national”

The Immigration (European Economic Area) Regulations 2006

The Secretary of State must issue a residence card to a person who is not an EEA national and is the family member of a qualified person or of an EEA national with a permanent right of residence under regulation 15 on application and production of(a) a valid passport; and

Y

Effective transposition.

(b) proof that the applicant is such a family member

Y

Effective transposition.

Regulation 17(1)(a) The Immigration (European Economic Area) Regulations 2006 Regulation 17(1)(b) Not transposed

[Article 10(2) does link the residence card to the validity of the passport. There is no extra condition in UK law. However, it looks peculiar because UK has extracted reg. 17(1) under 10(1) as well as 10(2). It is the expert’s view that there is a dissonance in approach, not an extra condition.]

Y, More favourab le

Effective and more favourable transposition No requirement to prove residence as such. Section 3 of the form (http://www.ukba.homeoffice.gov.uk/sitecontent/ap

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Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

Complete text of national provision (in language of Member State)

Fully in accord? (y/n)

accompanying or joining;

Art.10.2 (d)

Art.10.2 (e)

Art.10.2 (f)

(d) in cases falling under points (c) and (d) of Article 2(2), documentary evidence that the conditions laid down therein are met;

(e) in cases falling under Article 3(2)(a), a document issued by the relevant authority in the country of origin or country from which they are arriving certifying that they are dependants or members of the household of the Union citizen, or proof of the existence of serious health grounds which strictly require the personal care of the family member by the Union citizen; (f) in cases falling under Article 3(2)(b), proof of the existence of a durable relationship with the Union citizen.

The Immigration (European Economic Area) Regulations 2006 Regulation 17(1)(b) The Immigration (European Economic Area) Regulations 2006 Regulation 17(4)

The Immigration (European Economic Area) Regulations 2006 Regulation 17(4) Regulation 8(5)

(b) proof that the applicant is such a family member

The Secretary of State may issue a residence card to an extended family member not falling within regulation 7(3) who is not an EEA national on application if – (a) the relevant EEA national in relation to the extended family member is a qualified person or an EEA national with a permanent right of residence under regulation 15; and (b) in all the circumstances it appears to the Secretary of State appropriate to issue the residence card 17(4) The Secretary of State may issue a residence card to an extended family member not falling within regulation 7(3) who is not an EEA national on application if – (c) the relevant EEA national in relation to the extended family member is a qualified person or an EEA national with a permanent right of residence under regulation 15; and in all the circumstances it appears to the Secretary of State appropriate to issue the residence card

Y

N, Incorrect

Comments/Problems

plicationforms/eea/eea2.pdf) asks for passport, ID or registration certificate number of the EEA citizen the applicant is joining. It emphasises that the registration certificate is not required, but that proof of identity of the person whom the applicant is joining is required. However, proof of residence in the UK is not required. Effective transposition

Incorrect transposition As mentioned above in relation to Article 8(5), this appears to be more discretionary than Article 10 requires.

N, Incorrect

Incorrect transposition Proof requirement built into classification of durable relationship as extended family member. Appears to be more discretionary than is required by the Directive.

8(5) A person satisfies the condition in this paragraph if the person is the partner of the EEA national (other than civil partner) and can prove to

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Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member-States Art

Art.11.1

Citation of the Article of the Directive

Validity of the residence card 1. The residence card provided for by Article 10(1) shall be valid for five years from the date of issue or for the envisaged period of residence of the Union citizen, if this period is less than five years.

Art.11.2

2. The validity of the residence card shall not be affected by temporary absences not exceeding six months a year, or by absences of a longer duration for compulsory military service or by one absence of a maximum of 12 consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.

Milieu Ltd & Europa Institute

Corresponding national provision (legal ref. & art.)

The Immigration (European Economic Area) Regulations 2006 Regulation 17(6)

The Immigration (European Economic Area) Regulations 2006 Regulation 20(2)

Complete text of national provision (in language of Member State)

the decision maker that he is in a durable relationship with the EEA national. A residence card issued under this regulation may take the form of a stamp in the applicant’s passport and shall be entitled “Residence card of a family member of an EEA national” and be valid for(a) five years from the date of issue; or (b) in the case of a residence card issued to the family member or extended family member of a qualified person, the envisaged period of residence in the United Kingdom of the qualified person, whichever is the shorter. 20(2) The Secretary of State may revoke a registration certificate or a residence card or refuse to renew a residence card if the holder of the certificate or card has ceased to have a right to reside under these Regulations.

Regulation 15(2)

15(2) Once acquired, the right of permanent residence under this regulation shall be lost only through absence from the United Kingdom for a period exceeding two consecutive years

Regulation 3

3(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 military service; or (c) Any 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) but continuity of residence is broken if a person is removed from the United Kingdom under 19(3)

Fully in accord? (y/n)

Comments/Problems

Y

Effective transposition.

Y

Effective transposition The transposition notes that the Secretary of State has taken the approach that provisions on continuity of stay apply to the general right to reside. Article 11(2) refers to the validity of a residence card which in line with the directive must be issued to all non EEA nationals residing in the UK for more than three months. There are no measures in the UK regulations specifying the need for continuity of residence specifically for the purposes of the validity of the residence card, which may cast doubt upon the effectiveness of the transposition. However, it is worth pointing out that the residence card is for evidentiary purposes only: no substantive right of residence attaches to the validity of a residence card but rather the card gains its validity from the continued right of residence. This is why these regulations regarding continuity of residence and right of residence have been included here.

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Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member-States Art

Citation of the Article of the Directive

Art.12.1

Retention of the right of residence by family members in the event of death or departure of the Union citizen 1. Without prejudice to the second subparagraph, the Union citizen's death or departure from the host Member State shall not affect the right of residence of his/her family members who are nationals of a Member State. Before acquiring the right of permanent residence, the persons concerned must meet the conditions laid down in points (a), (b), (c) or (d) of Article 7(1).

Corresponding national provision (legal ref. & art.) The Immigration (European Economic Area) Regulations 2006 Regulation 14(3) Regulation 10(1)(2)(3) (6)

Complete text of national provision (in language of Member State)

Fully in accord? (y/n) N, Incorrect

14(3) A family member who has retained the right of residence is entitled to reside in the United Kingdom for so long as he remains a family member who has retained the right of residence. 10(1) In these Regulations, “family member who has retained the right of residence means”, subject to paragraph (8), a person who satisfies the conditions in paragraph (2), (3), (4) or (5) (2) A person satisfies the conditions in this paragraph if— (a) he was a family member of a qualified person when the qualified person died; (b) he resided in the United Kingdom in accordance with these Regulations for at least the year immediately before the death of the qualified person; and (c) he satisfies the condition in paragraph (6). 10(6) The condition in this paragraph is that the person— (a) is not an EEA national but would, if he were an EEA national, be a worker, a self-employed person or a self-sufficient person under regulation 6; or (b) is the family member of a person who falls within paragraph (a).

Comments/Problems

Incorrect transposition Regulation 10 is a particularly difficult Regulation to understand. It applies to both EEA and non-EEA nationals, but it is a definitional Regulation (creating the category of ‘family member who has retained the right of residence’), rather than one conferring rights as such. The UK Regulations are rather convoluted in this area, but the combination of Reg 14(3) plus Reg 10 may satisfy the requirements of the first subparagraph, although it is not wholly clear from the Regulations whether the proviso of one year’s residence only applies to non-EEA nationals. If this lack of clarity in drafting can be removed, then the provisions represent an effective transposition. On the other hand, if the UK is requiring one year’s residence in those circumstances, then this is not supported by the Directive. While there is no text explicitly transposing the second subparagraph, this is covered assuming that the UK has achieved a broadly correct transposition of Article 7, namely that certain categories of person can achieve the right of permanent residence assuming a sufficiently lengthy period of residence under Chapter IV of the Directive (see Regulation 15).

10(3) A person satisfies the conditions in this paragraph if(a) he is the direct descendant of(i) a qualified person who has died; a person who ceased to be a qualified (ii) person on ceasing to reside in the United Kingdom (iii) the person who was the spouse or civil partner of the qualified person

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Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member-States Art

Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

Complete text of national provision (in language of Member State)

Fully in accord? (y/n)

Comments/Problems

mentioned in sub-paragraph (i) when he died or is the spouse or civil partner of the person mentioned in sub-paragraph (ii); and (b) he was attending an educational course in the United Kingdom immediately before the qualified person died or ceased to be a qualified person and continues to attend such a course. Regulation 15(1)

Art.12.2

2. Without prejudice to the second subparagraph, the Union citizen's death shall not entail loss of the right of residence of his/her family members who are not nationals of a Member State and who have been residing in the host Member State as family members for at least one year before the Union citizen's death.

The Immigration (European Economic Area) Regulations 2006 Regulation 14(3) Regulation 10(1)(2)(6)

15(1) The following persons shall acquire the right to reside in the United Kingdom permanently – … (f) a person who— (i) has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years; and (ii) was, at the end of that period, a family member who has retained the right of residence. Y

Effective transposition.

14(3) A family member who has retained the right of residence is entitled to reside in the United Kingdom for so long as he remains a family member who has retained the right of residence. 10(1) In these Regulations, “family member who has retained the right of residence means”, subject to paragraph (8), a person who satisfies the conditions in paragraph (2), (3), (4) or (5) (2) A person satisfies the conditions in this paragraph if(a) he was a family member of a qualified person when the qualified person died (b) he resided in the United Kingdom in accordance with these Regulations for at least the year immediately before the death of the qualified person (c) he satisfies the condition in paragraph (6) (6) The condition in this paragraph is that the

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Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member-States Art

Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

Complete text of national provision (in language of Member State)

Fully in accord? (y/n)

Comments/Problems

person—

Before acquiring the right of permanent residence, the right of residence of the persons concerned shall remain subject to the requirement that they are able to show that they are workers or selfemployed persons or that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State, or that they are members of the family, already constituted in the host Member State, of a person satisfying these requirements. ‘Sufficient resources’ shall be as defined in Article 8(4).

The Immigration (European Economic Area) Regulations 2006

Such family members shall retain their right of residence exclusively on a personal basis.

The Immigration (European Economic Area) Regulations 2006

Milieu Ltd & Europa Institute

Regulation 10(2) and (6)

(a) is not an EEA national but would, if he were an EEA national, be a worker, a selfemployed person or a self-sufficient person under regulation 6; or (b) is the family member of a person who falls within paragraph (a). (2) A person satisfies the conditions in this paragraph if— (a) he was a family member of a qualified person when the qualified person died; (b) he resided in the United Kingdom in accordance with these Regulations for at least the year immediately before the death of the qualified person; and (c) he satisfies the condition in paragraph (6).

Y

Effective transposition. The reference to ‘in accordance with these Regulations’ may be said to cover the points relating to being workers, self-employed persons, or persons with sufficient resources to be selfsufficient.

(6) The condition in this paragraph is that the person(a) is not an EEA national but would, if he were an EEA national, be a worker, a selfemployed person or a self-sufficient person under regulation 6; or (b) is the family member of a person who falls within paragraph (a) Regulation 15(1)(f)

15(1) The following persons shall acquire the right to reside in the United Kingdom permanently – … (f) a person who— (i) has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years; and (ii) was, at the end of that period, a family member who has retained the right of residence. 14(3) A family member who has retained the right of residence is entitled to reside in the United Kingdom for so long as he remains a family member who has retained the right of residence.

Y

Effective transposition.

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Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member-States Art

Citation of the Article of the Directive

Art.12.3

3. The Union citizen's departure from the host Member State or his/her death shall not entail loss of the right of residence of his/her children or of the parent who has actual custody of the children, irrespective of nationality, if the children reside in the host Member State and are enrolled at an educational establishment, for the purpose of studying there, until the completion of their studies.

Art.13.1

Retention of the right of residence by family members in the event of divorce, annulment of marriage or termination of registered partnership 1. Without prejudice to the second subparagraph, divorce, annulment of the Union citizen's marriage or termination of his/her registered partnership, as referred to in point 2(b) of Article 2 shall not affect the right of residence of his/her family

Milieu Ltd & Europa Institute

Corresponding national provision (legal ref. & art.) Regulation 14(3) The Immigration (European Economic Area) Regulations 2006 Regulation 10(1),(3), (4)

The Immigration (European Economic Area) Regulations 2006 Regulation 10(1), (5)

Complete text of national provision (in language of Member State)

Fully in accord? (y/n)

(1) In these Regulations, “family member who has retained the right of residence” means, subject to paragraph (8), a person who satisfies the conditions in paragraph (2), (3), (4) or (5).

Y

Effective transposition. While the language used in the UK Regulations differs somewhat from the Directive, it is satisfactory. Rather than departure from the host Member State, the Regulation refers to the qualified person ceasing to be a qualified person, or ceasing to the reside in the UK. Moreover the reference to ‘such a course’ refers not to a specific course, but to educational courses in general.

(4) A person satisfies the conditions in this paragraph if the person is the parent with actual custody of a child who satisfies the condition in paragraph (3). (3) A person satisfies the conditions in this paragraph if – (a) he is the direct descendant of – (i) a qualified person who has died; (ii) a person who has ceased to be a qualified person on ceasing to reside in the United Kingdom; or (iii) the person who was the spouse or civil partner of the qualified person mentioned in sub-paragraph (i) when he died or is the spouse or civil partner of the person mentioned in sub-paragraph (ii); and (b) he was attending an educational course in the United Kingdom immediately before the qualified person died or ceased to be a qualified person and continues to attend such a course. (1) In these Regulations, family member who has retained the right of residence” means, subject to paragraph (8), a person who satisfies the conditions in paragraph (2), (3), (4) or (5).

Comments/Problems

Y

Effective transposition This transposition is subject to the same concerns as above about the transparency of the drafting.

(5) A person satisfies the conditions in this paragraph if – (a) he ceased to be a family member of a qualified person on the termination of the marriage or civil partnership of the qualified person; (b) He was residing in the United Kingdom in accordance with these Regulations at the date of the termination;

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Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

members who are nationals of a Member State.

Complete text of national provision (in language of Member State)

Fully in accord? (y/n)

Comments/Problems

(c) He satisfies the condition in paragraph (6); and Either – (i) prior to the initiation of the proceedings for the termination of the marriage or the civil partnership the marriage or civil partnership had lasted for at least three years and the parties to the marriage or civil partnership had resided in the United Kingdom for at least one year during its duration; (ii) the former spouse or civil partner of the qualified person has custody of a child of the qualified person; (iii) the former spouse or civil partner of the qualified person has the right of access to a child of the qualified person under the age of 18 and a court has ordered that such access must take place in the United Kingdom; or (iv) the continued right of residence in the United Kingdom of the person is warranted by particularly difficult circumstances, such as he or another family member having been a victim of domestic violence while the marriage or civil partnership was subsisting (6) The condition in this paragraph is that the person-

Before acquiring the right of permanent residence, the persons concerned must meet the conditions laid down in points (a), (b), (c) or (d) of Article 7(1).

The Immigration (European Economic Area) Regulations 2006 Regulation 15(1)(f)

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(c) is not an EEA national but would, if he were an EEA national, be a worker, a selfemployed person or a self-sufficient person under regulation 6; or (d) is the family member of a person who falls within paragraph (a) 15(1) The following persons shall acquire the right to reside in the United Kingdom permanently – … (f) a person who— (i) has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years; and (ii) was, at the end of that period, a family member who has retained the right of residence.

Y

Effective transposition While there is no text explicitly transposing this subparagraph, this is covered assuming that the UK has achieved a correct transposition of Article 7, namely that certain categories of person can achieve the right of permanent residence assuming a sufficiently lengthy period of residence (see

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Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member-States Art

Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

Complete text of national provision (in language of Member State)

Fully in accord? (y/n)

Art.13.2 (a)

2. Without prejudice to the second subparagraph, divorce, annulment of marriage or termination of the registered partnership referred to in point 2(b) of Article 2 shall not entail loss of the right of residence of a Union citizen's family members who are not nationals of a Member State where: (a) prior to initiation of the divorce or annulment proceedings or termination of the registered partnership referred to in point 2(b) of Article 2, the marriage or registered partnership has lasted at least three years, including one year in the host Member State; or

Regulation 10(1), (5)

(1) In these Regulations, family member who has retained the right of residence� means, subject to paragraph (8), a person who satisfies the conditions in paragraph (2), (3), (4) or (5).

Y

(b) by agreement between the spouses or the partners referred to in point 2(b) of Article 2 or by court order, the spouse or partner who is not a national of a Member State has custody of the Union citizen's children; or (c) this is warranted by particularly difficult circumstances, such as having been a victim of domestic violence while the marriage or registered partnership was subsisting; or

The Immigration (European Economic Area) Regulations 2006

Art.13.2 (b)

Art.13.2 (c)

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Regulation 10(5)(c)(ii) The Immigration (European Economic Area) Regulations 2006 Regulation

(5) A person satisfies the conditions in this paragraph if – (a) he ceased to be a family member of a qualified person on the termination of the marriage or civil partnership of the qualified person; (b) He was residing in the United Kingdom in accordance with these Regulations at the date of the termination; (c) He satisfies the condition in paragraph (6); and Either – (i) prior to the initiation of the proceedings for the termination of the marriage or the civil partnership the marriage or civil partnership had lasted for at least three years and the parties to the marriage or civil partnership had resided in the United Kingdom for at least one year during its duration; (ii) the former spouse or civil partner of the qualified person has custody of a child of the qualified person;

(iv) the continued right of residence in the United Kingdom of the person is warranted by particularly difficult circumstances, such as he or another family member having been a victim of domestic violence while the marriage or civil partnership was

Comments/Problems

Regulation 15). Effective transposition The reference to residence in the UK at the date of termination is not directly supported in the text of the Directive.

Y

Effective transposition.

Y

Effective transposition.

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Citation of the Article of the Directive

Art.13.2 (d)

d) by agreement between the spouses or partners referred to in point 2 (b) of Article 2 or by court order, the spouse or partner who is not a national of a Member State has the right of access to a minor child, provided that the court has ruled that such access must be in the host Member State, and for as long as is required. Before acquiring the right of permanent residence, the right of residence of the persons concerned shall remain subject to the requirement that they are able to show that they are workers or selfemployed persons or that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State, or that they are members of the family, already constituted in the host Member State, of a person satisfying these requirements. 'Sufficient resources' shall be as defined in Article 8(4). Such family members shall retain their right of residence exclusively on personal basis.

Art.14.1

Retention of the right of residence 1. Union citizens and their family

Milieu Ltd & Europa Institute

Corresponding national provision (legal ref. & art.) 10(5)(c)(iv) The Immigration (European Economic Area) Regulations 2006 Regulation 10(5)(c)(iii)

The Immigration (European Economic Area) Regulations 2006

Complete text of national provision (in language of Member State)

subsisting (iii) the former spouse or civil partner of the qualified person has the right of access to a child of the qualified person under the age of 18 and a court has ordered that such access must take place in the United Kingdom; or

Fully in accord? (y/n)

Y

Comments/Problems

Effective transposition Note that ‘for as long as is required’ has not been transposed, but this seems a very minor issue.

Y

Effective transposition.

Regulation 15(1)(f)

15(1)(f) a person who— (i) has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years; and (ii) was, at the end of that period, a family member who has retained the right of residence.

The Immigration (European Economic Area) Regulations 2006

14(3) A family member who has retained the right of residence is entitled to reside in the United Kingdom for so long as he remains a family member who has retained the right of residence.

Y

Effective transposition.

Regulation 14(3) The Immigration (European

An EEA national or his family member who becomes an unreasonable burden on the social

Y

Effective transposition, except that the wording of the UK legislation is reversed.

The reference to ‘in accordance with these Regulations’ covers the points relating to being workers, self-employed persons, or persons with sufficient resources to be self-sufficient.

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Art.14.2

Citation of the Article of the Directive

members shall have the right of residence provided for in Article 6, as long as they do not become an unreasonable burden on the social assistance system of the host Member State. 2. Union citizens and their family Members shall have the right of residence provided for in Articles 7, 12 and 13 as long as they meet the conditions set out therein.

Corresponding national provision (legal ref. & art.) Economic Area) Regulations 2006

The Immigration (European Economic Area) Regulations 2006

Regulation 19(3)(a)

Regulation 20(2) and (3)

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Fully in accord? (y/n)

Comments/Problems

assistance system of the United Kingdom shall cease to have the right to reside under this regulation.

Regulation 13(3)(b)

Regulation 14

In specific cases where there is a reasonable doubt as to whether a Union citizen or his/her family members satisfies the conditions set out in Articles 7, 12 and 13, Member States may verify if these conditions are fulfilled. This verification shall not be carried out systematically.

Complete text of national provision (in language of Member State)

14(1) A qualified person is entitled to reside in the United Kingdom so long as he remains a qualified person. (2) A family member of a qualified person residing in the United Kingdom under paragraph (1) or of an EEA national with a permanent right of residence under regulation 15 is entitled to reside in the United Kingdom for as long as he remains the family member of the qualified person or EEA national (3) A family member who has retained the right of residence is entitled to reside in the United Kingdom for as long as he remains a family member who has retained the right of residence (4) A right to reside under this regulation is in addition to any right a person may have to reside in the United Kingdom under regulation 13 or 15. 19(3) Subject to paragraphs (4) and (5), a person who has been admitted to, or acquired a right to reside in, the United Kingdom under these Regulations may be removed from the United Kingdom if – (a) he does not have or ceases to have a right to reside under these Regulations‌

Y

N, Incomple te

Effective transposition

Incomplete transposition These provisions do not seem fully to convey the meaning of the paragraph, and to guarantee those relying upon their free movement rights protection against systematic verification of their status.

(2) The Secretary of State may revoke a registration certificate or a residence card or refuse to renew a residence card if the holder of the certificate or card has ceased to have a right to reside under these Regulations. (3) The Secretary of State may revoke a document certifying permanent residence or a permanent residence card or refuse to renew a permanent residence card if the holder of the certificate or card has ceased to have a right of permanent residence

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Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

Art.14.3

3. An expulsion measure shall not be the automatic consequence of a Union citizen's or his or her family member's recourse to the social assistance system of the host Member State. 4. By way of derogation from paragraphs 1 and 2 and without prejudice to the provisions of Chapter VI, an expulsion measure may in no case be adopted against Union citizens or their family members if: (a) the Union citizens are workers or self-employed persons, or (b) the Union citizens entered the territory of the host Member State in order to seek employment. In this case, the Union citizens and their family members may not be expelled for as long as the Union citizens can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged.

The Immigration (European Economic Area) Regulations 2006

Procedural safeguards

The Immigration (European Economic Area) Regulations 2006

Art.14.4 (a)

Art.14.4 (b)

Art.15.1

The procedures provided for by Articles 30 and 31 shall apply by analogy to all decisions restricting

Milieu Ltd & Europa Institute

Regulation 19(4) The Immigration (European Economic Area) Regulations 2006

Complete text of national provision (in language of Member State)

under regulation 15. A person may not be removed under paragraph (3) as the automatic consequence of having recourse to the social assistance system of the United Kingdom

A qualified person is entitled to reside in the United Kingdom for so long a he remains a qualified person.

Fully in accord? (y/n)

Comments/Problems

Y

Effective transposition.

Y

Effective transposition. A ‘qualified person’ includes a worker or selfemployed person, and thus effectively protects such persons.

Regulation 14(1)

The Immigration (European Economic Area) Regulations 2006 Regulation 14(1) Regulation 6(4)

Y

Effective transposition.

Y

Effective transposition

14(1) A qualified person is entitled to reside in the United Kingdom for so long a he remains a qualified person. 6(4) For the purpose of paragraph (1)(a), ‘jobseeker’ means a person who enters the United Kingdom in order to seek employment and can provide evidence that he is seeking employment and has a genuine chance of being engaged.

2(1) “EEA decision” means a decision under these Regulations that concerns a person’s(a) entitlement to be admitted to the United Kingdom; (b) entitlement to be issued with or have

The combination of Regulations 2(1) and 26 make it clear that the same procedural safeguards apply to all ‘EEA decisions’ whether taken on grounds of

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Citation of the Article of the Directive

free movement of Union citizens and their family members on grounds other than public policy, public security or public health.

Art.15.2

2. Expiry of the identity card or passport on the basis of which the person concerned entered the host Member State and was issued with a

Milieu Ltd & Europa Institute

Corresponding national provision (legal ref. & art.) Regulation 2(1) Regulation 26

The Immigration (European Economic Area) Regulations 2006

Complete text of national provision (in language of Member State)

Fully in accord? (y/n)

renewed, or not to have revoked, a registration certification, residence card, document certifying permanent residence or permanent residence cards; or (c) removal from the United Kingdom; 26(1) Subject to the following paragraphs of this regulation, a person may appeal under these regulations against an EEA decision. (2) If a person claims to be an EEA national, he may not appeal under these regulations unless he produces a valid national identity card or passport issued by an EEA State. (3) If a person claims to be the family member or relative of an EEA national, he may not appeal under these Regulations unless he produces(a) an EEA family permit; or (b) other proof that he is related as claimed to an EEA national (4) A person may not bring an appeal under these Regulations on a ground certified under paragraph (5) or rely on such a ground in an appeal brought under these regulations (5) the Secretary of State or an immigration officer may certify a ground for the purposes of paragraph (4) if it has been considered in a previous appeal brought under these Regulations or under section 82(1) of the 2002 Act (6) Except where an appeal lies to the Commission, an appeal under these Regulations lies to the Immigration and Asylum tribunal. (7) the provisions of or made under the 2002 Act referred to in Schedule 1 shall have effect for the purposes of an appeal under these regulations to the Asylum and Immigration Tribunal in accordance with that Schedule. (19)(3) Subject to paragraphs (4) and (5), a person who has been admitted to, or acquired a right to reside in, the United Kingdom under these Regulations may be removed from the United

Comments/Problems

lack of entitlement to free movement, or on grounds of public policy, public security, etc. The question whether these procedural protections are sufficient (in either case) is dealt with subsequently.

N, Incorrect

Incorrect transposition Expiry of an identity card is not one of the grounds of expulsion listed in the UK Regulations and this is

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Citation of the Article of the Directive

registration certificate or residence card shall not constitute a ground for expulsion from the host Member State.

Corresponding national provision (legal ref. & art.) Regulation 19(3)

Regulation 7(3)

Art.15.3

3. The host Member State may not impose a ban on entry in the context of an expulsion decision to which paragraph 1 applies.

Not transposed

Complete text of national provision (in language of Member State)

Fully in accord? (y/n)

Kingdom if – (a) he does not have or ceases to have a right to reside under these Regulations; or (b) he would otherwise be entitled to reside in the United Kingdom under these Regulations but the Secretary of State has decided that his removal is justified on grounds of public policy, public security or public health in accordance with regulation 21

Comments/Problems

the reasoning given in transposition note for the approach taken. However, there are some problematic elements elsewhere. For example, with regards to extended family members, their definition as a ‘family member’ (and consequential right of residence) under 7(3) is dependant upon having a valid permit, certificate or card. In addition, appeal rights under Regulation 26 are conditional upon producing a valid national identity card or passport issued by an EEA state.

7(3) Subject to paragraph (4), a person who is an extended family member and has been issued with an EEA family permit, a registration certificate or a residence card shall be treated as the family member of the relevant EEA national for as long as he continues to satisfy the conditions in regulation 8(2), (3), (4) or (5) in relation to that EEA national and the permit, certificate or card has not ceased to be valid or been revoked. N, Incomple te

Incomplete transposition The transposition note states that the only grounds for exclusion and removal from the United Kingdom are set out in Regulation 19. The re-entry of persons removed on grounds other than 19(3)(b) (i.e., under 19(3)(a)) is not addressed under the regulations. Regulation 24 lays out procedure for removal but does not address future right of reentry. However, the discretion involved in the issuing of EEA family permits may allow prior expulsion to be a factor in refusing to grant an EEA family permit and therefore denying entry (Regulation 12(3) extensive examination of personal circumstances). If Reg 12(3) is being used in this way then the Regulation’s silence in this matter is contrary to the Directive.

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Corresponding national provision (legal ref. & art.) Chapter IV. RIGHT OF PERMANENT RESIDENCE Section I. Eligibility Art.16.1 General rule for Union citizens The Immigration (European and their family members 1. Union citizens who have resided Economic Area) legally for a continuous period of Regulations 2006 five years in the host Member State shall have the right of permanent Regulation residence there. This right shall not 15(1)(a) be subject to the conditions provided for in Chapter III.

Art.16.2

Art.16.3

Citation of the Article of the Directive

2. Paragraph 1 shall apply also to family members who are not nationals of a Member State and have legally resided with the Union citizen in the host Member State for a continuous period of five years. 3. Continuity of residence shall not be affected by temporary absences not exceeding a total of six months a year, or by absences of a longer duration for compulsory military service, or by one absence of a maximum of 12 consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.

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The Immigration (European Economic Area) Regulations 2006 Regulation 15(1)(b) Immigration (European Economic Area) Regulations 2006 Regulation 3 (2)

Complete text of national provision (in language of Member State)

15(1)The following persons shall acquire the right to reside in the United Kingdom permanently – (a) an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years. 10(8) A person with a permanent right of residence under regulation 15 shall not become a family member who has retained the right of residence on the death or departure from the United Kingdom of the qualified person or the termination of the marriage or civil partnership, as the case may be, and a family member who has retained the right of residence shall cease to have that status on acquiring a permanent right of residence under regulation 15. (b) a family member of an EEA national who is not himself an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years.

3 (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 military service; or (c) any 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.

Fully in accord? (y/n)

N, Incorrect

Comments/Problems

Incorrect transposition There is no authority in the Directive for the rider that residence should be ‘under these Regulations’, as this goes further than simply requiring ‘legal’ residence, which could occur under other provisions of national law. The final sentence of Article 16(1) is not explicitly transposed, although it could be said to be implicit in the Regulations. For example, in relation to the retention of residence rights, it is dealt with by Regulation 10(8) which makes it clear that persons with permanent rights of residence are not subject to the conditions in Regulation 10 and by the reference in Regulation 15(2) to the right of permanent residence only being lost by absence from the UK.

N, Incorrect

Incorrect transposition There is no authority in the Directive for the rider that residence should be ‘under these Regulations’.

Y

Effective transposition

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Citation of the Article of the Directive

Art.16.4

4. Once acquired, the right of permanent residence shall be lost only through absence from the host Member State for a period exceeding two consecutive years.

Art.17.1 (a)

Exemptions for persons no longer working in the host Member State and their family members 1. By way of derogation from Article 16, the right of permanent residence in the host Member State shall be enjoyed before completion of a continuous period of five years of residence by: (a) workers or self-employed persons who, at the time they stop working, have reached the age laid down by the law of that Member State for entitlement to an old age pension or workers who cease paid employment to take early retirement, provided that they have been working in that Member State for at least the preceding twelve months and have resided there continuously for more than three years. If the law of the host Member State does not grant the right to an old age pension to certain categories of selfemployed persons, the age condition shall be deemed to have been met once the person concerned has reached the age of 60;

Milieu Ltd & Europa Institute

Corresponding national provision (legal ref. & art.) Immigration (European Economic Area) Regulations 2006 Regulation 15 (2) Immigration (European Economic Area) Regulations 2006

Regulation 5(1) & (2) and Regulation 15 (1) (c)

Pensions Act 1995 Schedule 4, s 126 (amended by Pensions Act 2007, Schedule 3, s 13)

Complete text of national provision (in language of Member State)

Fully in accord? (y/n)

15 (2) Once acquired, the right of permanent residence under this regulation shall be lost only through absence from the United Kingdom for a period exceeding two consecutive years.

Y

Almost literal transposition.

5(1) In these Regulations, “worker or self-employed person who has ceased activity� means an EEA national who satisfies the conditions in (2), (3), (4) or (5). (2) A person satisfies the conditions in this paragraph if he(a) terminates his activity as a worker or selfemployed person and – (i) has reached the age at which he is entitled to a state pension on the date on which he terminates his activity; or (ii) in the case of a worker, ceases working to take early retirement; (b) pursued his activity as a worker or self-employed person in the United Kingdom for at least twelve months prior to the termination; and (c) resided in the United Kingdom continuously for more than three years prior to the termination.

Y

Effective transposition.

Y

Effective transposition

15(1) The following persons shall acquire the right to reside in the UK permanently(c) a worker or self-employed person who has ceased activity (1) A man attains pensionable age when he attains the age of 65 years. (2) A woman born before 6th April 1950 attains pensionable age when she attains the age of 60. (3) A woman born on any day in a period mentioned in column 1 of the following table attains pensionable age at the commencement of the day shown against that period in column 2. (4) A woman born after 5th April 1955 attains pensionable age when she attains the age of 65.

Comments/Problems

UK grants a right to an old age pension in any event at 65/60.

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Citation of the Article of the Directive

Art.17.1 (b)

(b) workers or self-employed persons who have resided continuously in the host Member State for more than two years and stop working there as a result of permanent incapacity to work. If such incapacity is the result of an accident at work or an occupational disease entitling the person concerned to a benefit payable in full or in part by an institution in the host Member State, no condition shall be imposed as to length of residence;

Art.17.1 (c)

(c) workers or self-employed persons who, after three years of continuous employment and residence in the host Member State, work in an employed or selfemployed capacity in another Member State, while retaining their place of residence in the host Member State, to which they return, as a rule, each day or at least once a week.

Corresponding national provision (legal ref. & art.) Immigration (European Economic Area) Regulations 2006 Regulation 5(1) & (3) and Regulation 15(1) (c)

Immigration (European Economic Area) Regulations 2006 Regulation 5(1) & (4) and Regulation 15 (1) (c)

Complete text of national provision (in language of Member State)

Fully in accord? (y/n)

5(1) In these Regulations, “worker or self-employed person who has ceased activity” means an EEA national who satisfies the conditions in (2), (3), (4) or (5). (3) A person satisfies the conditions in this paragraph if(a) he terminates his activity in the United Kingdom as a worker or self-employed person as a result of a permanent incapacity to work; and (b) either(i) he resided in the United Kingdom continuously for more than two years prior to the termination; or (ii) the incapacity is the result of an accident at work or an occupational disease that entitles him to a pension payable in full or in part by an institution in the United Kingdom.

Y

Effective transposition.

Y

Effective transposition.

15(1) The following persons shall acquire the right to reside in the UK permanently(c) a 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 the conditions in (2), (3), (4) or (5). (4) A persons satisfies the conditions in this paragraph if(a) he is active as a worker or self-employed person in an EEA State but retains his place of residence in the United Kingdom, to which he returns as a rule at least once a week; and (b) prior to becoming so active in that EEA State, he had been continuously resident and continuously active as a worker or self-employed person in the United Kingdom for at least three years.

Comments/Problems

15(1) The following persons shall acquire the right to reside in the UK permanently(c) a worker or self-employed person who has ceased activity

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Citation of the Article of the Directive

For the purposes of entitlement to the rights referred to in points (a) and (b), periods of employment spent in the Member State in which the person concerned is working shall be regarded as having been spent in the host Member State.

Art.17.2

Art.17.3

Corresponding national provision (legal ref. & art.) Immigration (European Economic Area) Regulations 2006 Regulation 5(5)

Periods of involuntary unemployment duly recorded by the relevant employment office, periods not worked for reasons not of the person's own making and absences from work or cessation of work due to illness or accident shall be regarded as periods of employment.

Immigration (European Economic Area) Regulations 2006

2. The conditions as to length of residence and employment laid down in point (a) of paragraph 1 and the condition as to length of residence laid down in point (b) of paragraph 1 shall not apply if the worker's or the self-employed person's spouse or partner as referred to in point 2(b) of Article 2 is a national of the host Member State or has lost the nationality of that Member State by marriage to that worker or self-employed person. 3. Irrespective of nationality, the family members of a worker or a self-employed person who are residing with him in the territory of the host Member State shall have the right of permanent residence in that Member State, if the worker or selfemployed person has acquired himself the right of permanent

Immigration (European Economic Area) Regulations 2006

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Regulation 5 (7)

Complete text of national provision (in language of Member State)

Fully in accord? (y/n)

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

Y

5(7) For the purposes of this regulation(a) periods of inactivity for reasons not of the person’s own making; (b) periods of inactivity due to illness or accident; and (c) in the case of a worker, periods of involuntary unemployment duly recorded by the relevant employment office, shall be treated as periods of activity as a worker or self-employed person, as the case may be. 5(6) The conditions in paragraph (2) and (3) as to length of residence and activity as a worker or selfemployed person shall not apply in relation to a person whose spouse or civil partner is a United Kingdom national.

Y

Effective transposition.

Y

Effective transposition

15(1) The following persons shall acquire the right to reside in the UK permanently-‌ (b) a family member of an EEA national who is not himself an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years;‌ (d) the family member of a worker or self-employed person who has ceased activity

Y

Regulation 15 (1)(d)

Effective transposition. This provision gives an additional entitlement to persons who have not been resident in the UK.

There is no need to transpose the second part as a person would not lose UK nationality by virtue of marriage to a person of another nationality. Article 14 British Nationality Act 1948 abolished a previous law that women marrying non-UK nationals would lose their nationality.

Regulation 5(6)

Immigration (European Economic Area) Regulations 2006

Comments/Problems

Effective transposition The provisions of the UK Regulations appear more favourable than the provisions of the Directive, as they do not appear to impose any conditions in relation to the residence of the family member. However, paragraph (d) only appears to apply to EEA nationals, and paragraph (b) in relation to nonEEA nationals is more restrictive.

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Art.17.4 (a)

Art.17.4 (b)

Citation of the Article of the Directive

residence in that Member State on the basis of paragraph 1. 4. If, however, the worker or selfemployed person dies while still working but before acquiring permanent residence status in the host Member State on the basis of paragraph 1, his family members who are residing with him in the host Member State shall acquire the right of permanent residence there, on condition that: (a) the worker or self-employed person had, at the time of death, resided continuously on the territory of that Member State for two years; or (b) the death resulted from an accident at work or an occupational disease; or

Corresponding national provision (legal ref. & art.)

Complete text of national provision (in language of Member State)

Fully in accord? (y/n)

Immigration (European Economic Area) Regulations 2006

15(1) The following persons shall acquire the right to reside in the UK permanently(e) a person who was the family member of a worker or self-employed person where(i) the worker or self-employed person has died; (ii) the family member resided with him immediately before his death; and (iii) the worker or self-employed person had resided continuously in the United Kingdom for at least the two years immediately before his death or the death was the result of an accident at work or an occupational disease.

Y

Effective transposition.

15(1) The following persons shall acquire the right to reside in the UK permanently(e) a person who was the family member of a worker or self-employed person where(iii) the worker or self-employed person had resided continuously in the United Kingdom for at least the two years immediately before his death or the death was the result of an accident at work or an occupational disease 15(1) The following persons shall acquire the right to reside in the UK permanently(e) a person who was the family member of a worker or self-employed person where(i) the worker or self-employed person has died; (ii) the family member resided with him immediately before his death; and (iii) the worker or self-employed person had resided continuously in the United Kingdom for at least the two years immediately before his death or the death was the result of an accident at work or an

Y

Effective transposition

Y

Effective transposition

Regulation 15(1)(e)

Immigration (European Economic Area) Regulations 2006 Regulation 15(1)(e)(iii)

Art.17.4 (c)

(c) the surviving spouse lost the nationality of that Member State following marriage to the worker or self-employed person.

Immigration (European Economic Area) Regulations 2006 Regulation 15(1)(e)

Milieu Ltd & Europa Institute

Comments/Problems

There is no need to transpose the section explicitly as a person would not lose UK nationality by virtue of marriage to a person of another nationality, under Section 14 of the British Nationality Act 1948.

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Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

Art.18

Acquisition of the right of permanent residence by certain family members who are not nationals of a Member State.

Immigration (European Economic Area) Regulations 2006

Without prejudice to Article 17, the Regulation family members of a Union citizen 15(1)(f) to whom Articles 12(2) and 13(2) apply, who satisfy the conditions laid down therein, shall acquire the right of permanent residence after residing legally for a period of five consecutive years in the host Member State. Chapter IV. RIGHT OF PERMANENT RESIDENCE Section I. Administrative formalities Art.19.1 Document certifying permanent Immigration (European residence for Union citizens Economic Area) 1. Upon application Member States Regulations 2006 shall issue Union citizens entitled to permanent residence, after having Regulation 18(1) verified duration of residence, with a document certifying permanent residence.

Art.19.2

2. The document certifying permanent residence shall be issued as soon as possible.

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Immigration (European Economic Area) Regulations 2006

Complete text of national provision (in language of Member State)

occupational disease. 15(1) The following persons shall acquire the right to reside in the UK permanently(b) a family member of an EEA national who is not himself an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years;… (f) a person who(i) has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years; and (ii) was, at the end of that period, a family member who has retained the right of residence.

Fully in accord? (y/n)

N, Incorrect

Comments/Problems

Incorrect transposition There is no authority in the Directive for the rider that residence should be ‘under these Regulations’.

18(1) The Secretary of State must issue an EEA national with a permanent right of residence under regulation 15 with a document certifying permanent residence as soon as possible after an application for such a document and proof that the EEA national has such a right is submitted to the Secretary of State.

Y

18(1) The Secretary of State must issue an EEA national with a permanent right of residence under regulation 15 with a document certifying permanent residence as soon as possible after an application for

Y

Effective transposition. According to the UKBA forms (see Annex), the proof which applicants must provide is as follows: for periods spent in employment, letters from the employer, P60s & most recent wage slips; for time in self-employment accountant’s letter, payments of tax and NI contributions, etc; for time as a student letters from school/college/university with evidence of funds; for time as a self-sufficient person a bank statement with proof of funds; for time as a retired person evidence of receipt of a pension; for time spent permanently incapacitated a medical report confirming permanent incapacity, having previously been in employment or selfemployment.

Effective transposition. However, as not all documents which are necessary are cited in the initial application form (such as

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Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.) Regulation 18(1)

Complete text of national provision (in language of Member State)

Fully in accord? (y/n)

such a document and proof that the EEA national has such a right is submitted to the Secretary of State.

Comments/Problems

bank statements for the past 3 months, etc.), the application process could take up to a year. The document certifying permanent residence is only valid for the duration of the validity of the identification document (ID card or passport) submitted during the application process. When the validity of the card is linked to the validity of the travel document, this usually makes the conditions more restrictive and is contrary to Community law. In this case it is the experts’ view that the problem does not arise in relation to transposition as such of this text; it just arises in the way the UK has developed its practices.

Art.20.1

Art.20.2

Art.20.3

Permanent residence card for family members who are not nationals of a Member State 1. Member States shall issue family members who are not nationals of a Member State entitled to permanent residence with a permanent residence card within six months of the submission of the application. The permanent residence card shall be renewable automatically every 10 years. 2. The application for a permanent residence card shall be submitted before the residence card expires. Failure to comply with the requirement to apply for a permanent residence card may render the person concerned liable to proportionate and nondiscriminatory sanctions. 3. Interruption in residence not exceeding two consecutive years shall not affect the validity of the

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Immigration (European Economic Area) Regulations 2006 Regulation 18(2) & (3)

18(2) The Secretary of State must issue a person who is not an EEA national who has a permanent right of residence under regulation 15 with a permanent residence card no later than six months after the date on which an application for a permanent residence card and proof that the person has such a right is submitted to the Secretary of State. (3) Subject to paragraph (5) and regulation 20(3), a permanent residence card shall be valid for ten years from the date of issue and must be renewed on application.

The Secretary of State has decided not to implement this provision.

N/A

Immigration (European Economic Area)

15(2) Once acquired, the right of permanent residence under this regulation shall be lost only through absence from the United Kingdom for a

Y

Effective transposition The wording of paragraph 2 sets the deadline of six months by reference to the submission of the application form and proof that the person has such a right.

N/A

Y

While the Directive refers to renewal being automatic, the Regulations require that after 10 years the family member needs to reapply. This seems reasonable. But as there is no requirement to hold a residence card the reapplication process does seems to be a formality. This appears in the transposition note. It is not compulsory to have a residence card, and consequently sanctions for not having one do not apply. This may be regarded as contrary to the Directive, but there is clearly an obligation on the Secretary of State to issue a card if one is applied for.

Effective transposition. The UK legislation links the validity of the card to

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Citation of the Article of the Directive

permanent residence card.

Corresponding national provision (legal ref. & art.) Regulations 2006 Regulation 15(2) and Regulation 18(5)

Art. 21

Continuity of residence For the purposes of this Directive, continuity of residence may be attested by any means of proof in use in the host Member State. Continuity of residence is broken by any expulsion decision duly enforced against the person concerned.

Immigration (European Economic Area) Regulations 2006

Complete text of national provision (in language of Member State)

Fully in accord? (y/n) the residence.

period exceeding two consecutive years. 18(5) A document certifying permanent residence and a permanent residence card shall cease to be valid if the holder ceases to have a right of permanent residence under regulation 15. N, Incorrect 3(3) But continuity of residence is broken if a person is removed from the United Kingdom under regulation 19(3).

Regulation 3 (3)

19(3) Subject to paragraphs (4) and (5), a person who has been admitted to, or acquired a right to reside in, the United Kingdom under these Regulations may be removed from the United Kingdom if(a) he does not have or cease to have a right to reside under these Regulations; or (b) he would otherwise be entitled to reside in the United Kingdom under these Regulations but the Secretary of State has decided that his removal is justified on the grounds of public policy, public security or public health in accordance with regulation 21. Chapter V. PROVISIONS COMMON TO THE RIGHT OF RESIDENCE AND THE RIGHT OF PERMANENT RESIDENCE Immigration 13 (1) An EEA national is entitled to reside in the Y Territorial scope Art. 22 (European United Kingdom for a period not exceeding three The right of residence and the right Economic Area) months beginning on the date on which he is of permanent residence shall cover Regulations 2006 admitted to the United Kingdom provided that he the whole territory of the host holds a valid national identity card or passport issued Member State. Regulation 13 (1) by an EEA State. & (2) (2) A family member of an EEA national residing in Regulation 14 (1) the United Kingdom under paragraph (1) who is not – (4) himself an EEA national is entitled to reside in the Regulation 15 (1) United Kingdom provided that he holds a valid passport. 14 (1) A qualified person is entitled to reside in the

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Regulation 19(3)

Comments/Problems

Incorrect transposition The transposition note states illustrations of the type of proof that could be provided will be given in guidance. The means of proof for continuity of residence are the same as those set out in article 8 above. These seem to be ‘any means in use in the host Member State’. However, the lack of an explicit transposition of the first paragraph can result in a stricter treatment of the applications and thus it is contrary to Community law.

Effective transposition It is clear from the scope of the Regulations that they cover the territory of UK.

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Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

Complete text of national provision (in language of Member State)

Fully in accord? (y/n)

Comments/Problems

United Kingdom for so long as he remains a qualified person. (2) A family member of a qualified person residing in the United Kingdom under paragraph (1) or of an EEA national with a permanent right of residence under regulation 15 is entitled to reside in the United Kingdom for so long as he remains the family member of the qualified person or EEA national. (3) A family member who has retained the right of residence is entitled to reside in the United Kingdom for so long as he remains a family member who has retained the right of residence. (4) A right to reside under this regulation is in addition to any right a person may have to reside in the United Kingdom under regulation 13 or 15.

Member States may impose territorial restrictions on the right of residence and the right of permanent residence only where the same restrictions apply to their own nationals.

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Immigration (European Economic Area) Regulations 2006 Regulation 13 (1) & (2) Regulation 14 (1) – (4) Regulation 15 (1)

15 (1) The following persons shall acquire the right to reside in the United Kingdom permanently. 13 (1) An EEA national is entitled to reside in the United Kingdom for a period not exceeding three months beginning on the date on which he is admitted to the United Kingdom provided that he holds a valid national identity card or passport issued by an EEA State. (2) A family member of an EEA national residing in the United Kingdom under paragraph (1) who is not himself an EEA national is entitled to reside in the United Kingdom provided that he holds a valid passport. 14 (1) A qualified person is entitled to reside in the United Kingdom for so long as he remains a qualified person. (2) A family member of a qualified person residing in the United Kingdom under paragraph (1) or of an EEA national with a permanent right of residence under regulation 15 is entitled to reside in the United Kingdom for so long as he remains the family member of the qualified person or EEA national. (3) A family member who has retained the right of residence is entitled to reside in the United Kingdom

Y

Effective transposition There are no restrictions for nationals.

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Corresponding national provision (legal ref. & art.)

Complete text of national provision (in language of Member State)

Fully in accord? (y/n)

Comments/Problems

for so long as he remains a family member who has retained the right of residence. (4) A right to reside under this regulation is in addition to any right a person may have to reside in the United Kingdom under regulation 13 or 15.

Art.23

Related rights Irrespective of nationality, the family members of a Union citizen who have the right of residence or the right of permanent residence in a Member State shall be entitled to take up employment or selfemployment there.

Art.24.1

Equal treatment 1. Subject to such specific provisions as are expressly provided for in the Treaty and secondary law, all Union citizens residing on the

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Immigration Act 1971 S 1 (1)&(2)

Social Security (Persons from Abroad)(Amende d) Regulations 2006

15 (1) The following persons shall acquire the right to reside in the United Kingdom permanently. 1. (1) All those who are in this Act expressed to have the right of abode in the United Kingdom shall be free to live in, and to come and go into and from, the United Kingdom without let or hindrance except such as may be required under and in accordance with this Act to enable their right to be established or as may be otherwise lawfully imposed on any person. (2) Those not having that right may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by this Act; and indefinite leave to enter or remain in the United Kingdom shall, by virtue of this provision, be treated as having been given under this Act to those in the United Kingdom at its coming into force, if they are then settled there (and not exempt under this Act from the provisions relating to leave to enter or remain).

(2) No claimant shall be treated as habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland unless he has a right to reside in (as the case may be) the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland other than a right to reside which

N, Incomple te

N, Incomple te

Incomplete transposition The transposition note states that these regulations do not implement this provision as they only concern the right of movement of residence of EEA nationals and their family members. However, other Government Department may rely on this provision in making relevant instruments. The provision of the Immigration Act assumes that such persons covered by it already have the right to work. The right to work is in any event plain on the relevant Border and Immigration Agency web page so far as concerns the family members of workers and selfemployed persons: http://www.ind.homeoffice.gov.uk/eucitizens/rights andresponsibilites/. The difficulty arises, however, with the right to work of the family members of children seeking to show self-sufficiency precisely because the nonEEA family members are working and supporting them, unless the EEA family members have a right to work under national law, and entry clearance under domestic immigration law. The relevant provisions of the Immigration Rules were set out under Article 7(1) above, and the issue is discussed in more detail in the Conformity Study. Incomplete transposition The Regulations amend the Council Tax Benefit Regulations 2006, the Council Tax Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006, the Housing

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basis of this Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty. The benefit of this right shall be extended to family members who are not nationals of a Member State and who have the right of residence or permanent residence.

Art.24.2

2. By way of derogation from paragraph 1, the host Member State shall not be obliged to confer entitlement to social assistance

Milieu Ltd & Europa Institute

Corresponding national provision (legal ref. & art.) Regulations 2-9 By way of illustration, parts of Regulation 6 relating to income support benefits are set out here.

Social Security (Persons from Abroad)(Amende d) Regulations

Complete text of national provision (in language of Member State)

falls within paragraph (3). (3) A right to reside falls within this paragraph if it is one which exists by virtue of, or in accordance with, one or more of the following— (a) regulation 13 of the Immigration (European Economic Area) Regulations 2006; (b) regulation 14 of those Regulations, but only in a case where the right exists under that regulation because the claimant is— (i) a jobseeker for the purpose of the definition of "qualified person" in regulation 6(1) of those Regulations, or (ii) a family member (within the meaning of regulation 7 of those Regulations) of such a jobseeker; (c) Article 6 of Council Directive No. 2004/38/EC; or (d) Article 39 of the Treaty establishing the European Community (in a case where the claimant is a person seeking work in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland). (4) A claimant is not a person from abroad if he is— (a) a worker for the purposes of Council Directive No. 2004/38/EC; (b) a self-employed person for the purposes of that Directive; (c) a person who retains a status referred to in subparagraph (a) or (b) pursuant to Article 7(3) of that Directive; (d) a person who is a family member of a person referred to in sub-paragraph (a), (b) or (c) within the meaning of Article 2 of that Directive; (e) a person who has a right to reside permanently in the United Kingdom by virtue of Article 17 of that Directive. The Regulations amend the Council Tax Benefit Regulations 2006, the Council Tax Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006, the Housing

Fully in accord? (y/n)

Comments/Problems

Benefit Regulations 2006, the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006, the Income Support (General) Regulations 1987, the Jobseeker's Allowance Regulations 1996 and the State Pension Credit Regulations 2002 as well as the Social Fund Maternity and Funeral Expenses (General) Regulations 2005 by providing that where a person's right of residence is of a specified type under Directive 2004/38, he or she is not to be treated as a person from abroad for the purposes of entitlement to income support, jobseeker's allowance, housing benefit, council tax benefit and state pension credit (which require in each case that a person be habitually resident). No omissions from this piecemeal approach have yet come to light, but the UK has not adopted a general principle of equal treatment, and there is no analogous principle in (general) UK (constitutional) law.

Y

Effective transposition The transposition note states: ‘These Regulations do not implement this provision as they only concern

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during the first three months of residence or, where appropriate, the longer period provided for in Article 14(4)(b), nor shall it be obliged, prior to acquisition of the right of permanent residence, to grant maintenance aid for studies, including vocational training, consisting in student grants or student loans to persons other than workers, self-employed persons, persons who retain such status and members of their families.

Corresponding national provision (legal ref. & art.) 2006 Regulations 2-9 Education (Student Loans)(Amendm ent)(England & Wales) Regulations 2006 Schedule 1 Education (Student Support)(Amend ment) Regulations 2006

Art.25.1

Art.25.2

General provisions residence documents

concerning

1. Possession of a registration certificate as referred to in Article 8, of a document certifying permanent residence, of a certificate attesting submission of an application for a family member residence card, of a residence card or of a permanent residence card, may under no circumstances be made a precondition for the exercise of a right or the completion of an administrative formality, as entitlement to rights may be attested by any other means of proof. 2. All documents mentioned in paragraph 1 shall be issued free of charge or for a charge not exceeding

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Schedule 1 Immigration (European Economic Area) Regulations 2006 Regulation 14 (1) Regulation 15(1)

Immigration (European Economic Area)

Complete text of national provision (in language of Member State)

Fully in accord? (y/n)

Benefit Regulations 2006, the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006, the Income Support (General) Regulations 1987, the Jobseeker's Allowance Regulations 1996 and the State Pension Credit Regulations 2002 as well as the Social Fund Maternity and Funeral Expenses (General) Regulations 2005 by providing that where a person's right of residence is of a specified type, he or she is not to be treated as habitually resident for the purpose of entitlement to income support, jobseeker's allowance, housing benefit, council tax benefit and state pension credit.

Schedule 1 in both Regulations sets out the categories of students who are potentially eligible for support. 14 (1) A qualified person is entitled to reside in the United Kingdom for so long as he remains a qualified person

the right of movement and residence of EEA nationals and their family members. However, other Government Departments may rely on this provision in making relevant instruments.’ It is clear from the requirement of rights of residence that with the exception of workers and selfemployed persons, benefits are not going to be forthcoming in the first three months of residence, until the initial right of residence under Regulation 13 has come into effect.

Y

Effective transposition These provisions are cited because they make clear that it is the free movement rights themselves which are constitutive of the rights of the qualified persons, or persons acquiring permanent residence, not the documentation, as is also the objective of Article 25(1). As the UK does not require these documents, it does not make them compulsory for e.g., getting benefits.

15 (1) The following persons shall acquire the right to reside in the United Kingdom permanently….

16 (7) A registration certificate issued under this regulation shall state the name and address of the person registering and the date of registration and

Comments/Problems

Y

As further commented in the CS, the documents listed in this Directive’s provision are the most obvious documents for proving status for the purpose of getting benefits. This could be regarded as de facto compulsion, but it is the expert’s view that this cannot be presumed. Effective transposition

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that imposed on nationals for the issuing of similar documents.

Corresponding national provision (legal ref. & art.) Regulations 2006 Regulation 16 (7) Regulation 17 (7) Regulation 18 (4)

Art.26

Checks

N/A

Complete text of national provision (in language of Member State)

Fully in accord? (y/n)

Comments/Problems

shall be issued free of charge. 17 (7) A residence card issued under this regulation shall be issued free of charge. 18 (4) A document certifying permanent residence and a permanent residence card shall be issued free of charge. N/A

UK citizens are not at present required to carry identity cards, and so this provision does not apply in the UK. Under the criminal law, proof of identity can be effected by a variety of means.

Member States may carry out checks on compliance with any requirement deriving from their national legislation for non-nationals always to carry their registration certificate or residence card, provided that the same requirement applies to their own nationals as regards their identity card. In the event of failure to comply with this requirement, Member States may impose the same sanctions as those imposed on their own nationals for failure to carry their identity card. Chapter VI. RESTRICTIONS ON THE RIGHT OF ENTRY AND THE RIGHT OF RESIDENCE ON GROUNDS OF PUBLIC POLICY, PUBLIC SECURITY OR PUBLIC HEALTH Immigration Act 3(5) A person who is not a British citizen shall be Y Effective transposition Art.27.1 General principles 1971 liable to deportation from the United Kingdom-1. Subject to the provisions of this (a) if the Secretary of State deems his deportation to The UK has taken advantage of the opportunity to Chapter, Member States may restrict S 3 (5)&(6) be conducive to the public good… restrict freedom of movement and residence in the freedom of movement and 3(6) Without prejudice to the operation of subsection accordance with grounds of public policy, public residence of Union citizens and their (5) above, a person who is not a British citizen shall security or public health. Regulation 21(2) is an family members, irrespective of also be liable to deportation from the United effective transposition of the last sentence of the nationality, on grounds of public Kingdom if, after he has attained the age of Article. policy, public security or public seventeen, he is convicted of an offence for which he health. These grounds shall not be is punishable with imprisonment and on his The underlying UK terminology in relation to invoked to serve economic ends. conviction is recommended for deportation by a deportation, which continues to be the bedrock court empowered by this Act to do so. against which the issue of public policy is considered is whether a deportation is ‘conducive to the public good’. This is the basis for deportation

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Corresponding national provision (legal ref. & art.) Immigration (European Economic Area) Regulations 2006 Regulation 19(1), (3)(b) & (5) Regulation 20 (1) & (5) Regulation 21(1) & (2)

Complete text of national provision (in language of Member State)

19 (1) A person is not entitled to be admitted to the United Kingdom by virtue of regulation 11 if his exclusion is justified on grounds of public policy, public security or public health in accordance with regulation 21. (3) Subject to paragraphs (4) and (5), a person who has been admitted to, or acquired a right to reside in, the United Kingdom under these Regulations may be removed from the United Kingdom if – (b) he would otherwise be entitled to reside in the United Kingdom under these Regulations but the Secretary of State has decided that his removal is justified on the grounds of public policy, public security or public health in accordance with regulation 21. (5) A person must not be removed under paragraph (3) if he has a right to remain in the United Kingdom by virtue of leave granted under the 1971 Act unless his removal is justified on the grounds of public policy, public security or public health in accordance with regulation 21. 20 (1) The Secretary of State may refuse to issue, revoke or refuse to renew a registration certificate, a residence card, a document certifying permanent residence or a permanent residence card if the refusal or revocation is justified on grounds of public policy or public health. (5) An immigration officer may, at the time of a person’s arrival in the United Kingdom, revoke that person’s EEA family permit if – (a) the revocation is justified on the grounds of public policy, public security or public health; or (b) the person is not at that time the family member of an EEA national with the right to reside in the United Kingdom under these Regulations or is not accompanying that national or joining him in the United Kingdom. 21 (1) In this regulation a "relevant decision" means

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Fully in accord? (y/n)

Comments/Problems

provided for under section 3(5) of the Immigration Act, and is the approach taken to the deportation of EU citizens. Section 3(6) deportation, which is court recommended deportation after deportation is not the approach taken to EU citizens, although judges do from time to time make a recommendation that an EU citizen whom they have sentenced to imprisonment should be deported. UK law on removal, also includes the category of administrative removal which is applied in relation to breaches of immigration law or where a person does not have the right to be present in the territory, i.e. persons who in the context of EU law do not have any rights under the Treaty or the relevant secondary legislation. This category of removal is not explicitly dealt with by the Directive. However, there are extensive provisions dealing with these scenarios in the Regulations. It is worth noting that the traditional freedom enjoyed by the UK executive in relation to the issue of deportation (in relation to all categories of nonnationals) has been limited by the effects of the Human Rights Act 1998, although this point is not directly related to EU law, which contains its own standards in this area. However, clearly the Human Rights Act, as with EU fundamental rights standards, also applies in relation to the deportation of persons covered by EU free movement rules and protected by the standards and procedural rules in the Directive. In interpreting the meaning of public policy, in particular, the traditional starting point for the analysis given by most UK courts is the relevant paragraphs of the ECJ judgment in R v. Bouchereau, which refers to ‘the existence, in addition to the perturbation of the social order

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an EEA decision taken on the grounds of public policy, public security or public health. (2) A relevant decision may not be taken to serve economic ends.

Art.27.2

2. Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.

Immigration (European Economic Area) Regulations 2006

The personal conduct of the individual concerned must represent

Immigration (European

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Regulation 21 (5)(a), (b) & (e)

Comments/Problems

which any infringement of the law involves, of a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society’ (para. 35).

21 (5) Where a relevant decision is taken on grounds of public policy or public security it shall, in addition to complying with the preceding paragraphs of this regulation, be taken in accordance with the following principles—(a) the decision must comply with the principle of proportionality; (b) the decision must be based exclusively on the personal conduct of the person concerned; (e) a person's previous criminal convictions do not in themselves justify the decision.

Y

More generally, the case of Machado provides guidance: ‘does the appellant’s conduct manifest a real and sufficiently serious threat to a fundamental interest of society, and if it does is it proportionate in all the circumstances to deport him.’ This is discussed in more detail in the Conformity Study. Almost literal transposition.

21 (5) (c) the personal conduct of the person concerned must represent a genuine, present and

Y

LC v. Secretary of State for the Home Department (Learco Chindamo), 17 August 2007, illustrates that the Courts take into account the requirements in Articles 27, 28 and 29 not withstanding substantial public pressure. Learco Chindamo, an Italian national who came to the UK at the age of 7, was convicted of murdering Philip Lawrence in 1996 (a rather celebrated case). In 2006 the Secretary of State decided to make a deportation order against Chindamo to take effect on his release from detention. Chindamo appealed to the Asylum and Immigration Tribunal. In considering whether to allow the deportation order to proceed or not the Tribunal carefully considered the requirements raised by the Directive/Regulations. In particular, the Tribunal took into account Chindamo’s model behaviour as a prisoner and found that he did not pose a serious threat to the public in the future. As the EU rules do not allow deportation to be used as a mode of punishment or to dissuade other aliens from committing similar crimes, the deportation could not be used as a response to Chindamo having committed a serious crime in the past. For the Tribunal that was sufficient to allow Chindamo’s appeal against deportation to Italy. Almost literal transposition.

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Art.27.3

Art.27.4

Citation of the Article of the Directive

a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted. 3. In order to ascertain whether the person concerned represents a danger for public policy or public security, when issuing the registration certificate or, in the absence of a registration system, not later than three months from the date of arrival of the person concerned on its territory or from the date of reporting his/her presence within the territory, as provided for in Article 5(5), or when issuing the residence card, the host Member State may, should it consider this essential, request the Member State of origin and, if need be, other Member States to provide information concerning any previous police record the person concerned may have. Such enquiries shall not be made as a matter of routine. The Member State consulted shall give its reply within two months. 4. The Member State which issued the passport or identity card shall allow the holder of the document who has been expelled on grounds of public policy, public security, or public health from another Member State to re-enter its territory without any formality even if the document is no longer valid or the nationality of the holder is in dispute.

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Corresponding national provision (legal ref. & art.) Economic Area) Regulations 2006

Complete text of national provision (in language of Member State)

Regulation 21 (5) (c) & (d)

sufficiently serious threat affecting one of the fundamental interests of society; (d) matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;

Not transposed.

N/A

The transposition note states that legislation is not required

N/A

Fully in accord? (y/n)

Comments/Problems

N, Incomple te

Incomplete transposition

N, Incomple te

Incomplete transposition

The transposition note states that legislation is not required in this field. There are references in the European Casework Instructions, e.g., Chapter 8, point 9.2 ‘factors to be taken into account’, to making checks with Interpol to ascertain whether further offences have been committed abroad. There is no transposition in the legislation of the obligation on the UK to reply within two months where requested by another Member State.

The general duty to admit nationals derives from customary international law, but it would seem that the Directive imposes an additional explicit obligation on Member States to accept returning nationals, which needs to be transposed.

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Art.28

Protection against expulsion 1. Before taking an expulsion decision on grounds of public policy or public security, the host Member State shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin. 2. The host Member State may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on serious grounds of public policy or public security.

Corresponding national provision (legal ref. & art.) Immigration (European Economic Area) Regulations 2006 Regulation 21 (6)

Immigration (European Economic Area) Regulations 2006 Regulation 21 (1) & (3)

3. An expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by Member States, if they: (a) have resided in the host Member State for the previous 10 years; or

Immigration (European Economic Area) Regulations 2006

(b) are a minor, except if the expulsion is necessary for the best interests of the child, as provided for in the United Nations Convention on

Immigration (European Economic Area) Regulations 2006

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Regulation 21 (1) & (4) (a)

Complete text of national provision (in language of Member State)

Fully in accord? (y/n)

Comments/Problems

21 (6) Before taking a relevant decision on the grounds of public policy or public security in relation to a person who is resident in the United Kingdom the decision maker must take account of considerations such as the age, state of health, family and economic situation of the person, the person's length of residence in the United Kingdom, the person's social and cultural integration into the United Kingdom and the extent of the person's links with his country of origin.

Y

Almost literal transposition.

21 (1) In this regulation a "relevant decision" means an EEA decision taken on the grounds of public policy, public security or public health. (3) A relevant decision may not be taken in respect of a person with a permanent right of residence under regulation 15 except on serious grounds of public policy or public security.

Y

Effective transposition. The case of Court of Appeal case of Bulale v. SSHD which discussed the meaning of ‘serious grounds of public policy’ will be examined in more detail in the Conformity Study.

21 (1) In this regulation a "relevant decision" means an EEA decision taken on the grounds of public policy, public security or public health. (4) A relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who—(a) has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision;

Y

21 (1) In this regulation a "relevant decision" means an EEA decision taken on the grounds of public policy, public security or public health. (4) A relevant decision may not be taken except on

Y

The courts have so far concluded that there is a difference between ‘serious’ and ‘imperative’ grounds, but they have not given guidance as to what that is precisely. Effective transposition. The Court of Appeal case of LG (Italy) v. SSHD which discussed the meaning of ‘imperative grounds of public security’ will be examined in more detail in the Conformity Study. The courts have so far concluded that there is a difference between ‘serious’ and ‘imperative’ grounds, but they have not given guidance as to what that is precisely. Effective transposition.

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Citation of the Article of the Directive

the Rights of the Child of 20 November 1989.

Art. 29.1

Art.29.2

Art.29.3

Public health 1. The only diseases justifying measures restricting freedom of movement shall be the diseases with epidemic potential as defined by the relevant instruments of the World Health Organisation and other infectious diseases or contagious parasitic diseases if they are the subject of protection provisions applying to nationals of the host Member State. 2. Diseases occurring after a threemonth period from the date of arrival shall not constitute grounds for expulsion from the territory.

3. Where there are serious indications that it is necessary, Member States may, within three months of the date of arrival, require persons entitled to the right of residence to undergo, free of charge, a medical examination to certify that they are not suffering from any of the conditions referred to in paragraph 1. Such medical examinations may not be required as a matter of routine.

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Corresponding national provision (legal ref. & art.) Regulation 21 (1) & (4) (b)

Immigration (European Economic Area) Regulations 2006

Complete text of national provision (in language of Member State)

imperative grounds of public security in respect of an EEA national who— (b) is under the age of 18, unless the relevant decision is necessary in his best interests, as provided for in the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th November 1989. 21 (7) In the case of a relevant decision taken on grounds of public health—(a) a disease that does not have epidemic potential as defined by the relevant instruments of the World Health Organisation or is not a disease to which section 38 of the Public Health (Control of Disease) Act 1984 applies (detention in hospital of a person with a notifiable disease) shall not constitute grounds for the decision;

Fully in accord? (y/n)

Comments/Problems

Y

Effective transposition.

21 (7) In the case of a relevant decision taken on grounds of public health – (b) if the person concerned is in the United Kingdom, diseases occurring after the three month period beginning on the date on which he arrived in the United Kingdom shall not constitute grounds for the decision.

Y

Effective transposition.

Y

Effective transposition

Immigration Act 1971

22(2)(c) A person to whom this regulation applies is to be treated as if he were a person seeking leave to enter the United Kingdom under the 1971 Act for the purposes of paragraphs 2, 3, 4, 7, 16 to 18 and 21 to 24 of Schedule 2 of the 1971 Act (administrative provisions as to control on entry etc), except that – (c) a medical examination is not be carried out under paragraph 2 or paragraph 7 as a matter of routine and may only be carried out within three months of a person’s arrival in the United Kingdom.

Schedule 2, para 2&7

2 (1) An immigration officer may examine any persons who have arrived, or who are seeking to

Regulation 21 (7) (a)

Immigration (European Economic Area) Regulations 2006 Regulation 21 (7) (b) Immigration (European Economic Area) Regulations 2006 Regulation 22 (2) (c)

The Immigration Act allows an immigration officer to require a medical examination of each person seeking leave to enter the UK. However, in respect of EEA nationals the Regulations soften the provisions in the 1971 Act in order to comply with the Directive.

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Corresponding national provision (legal ref. & art.)

Complete text of national provision (in language of Member State)

Fully in accord? (y/n)

Comments/Problems

arrive, in the United Kingdom through the tunnel system for the purpose of determining (a) whether any of them is or is not a British citizen; and (b) whether, if he is not, he may or may not enter the United Kingdom without leave; and (c) whether, if he may not (i) he has been given leave which is still in force, (ii) he should be given leave and for what period or on what conditions (if any), or (iii) he should be refused leave. (1A) The power conferred by sub-paragraph (1) is exercisable (a) as respects persons who have arrived in the United Kingdom, in a control area, and (b) as respects persons seeking to arrive in the United Kingdom (who may first be questioned to ascertain whether they are seeking to do so), in a control zone in France or Belgium. (2) Any such person, if he is seeking to enter the United Kingdom, may be examined also by a medical inspector or by any qualified person carrying out a test or examination required by a medical inspector.

7 (1) This paragraph applies if an immigration officer examining a person under paragraph 2 decides (a) that he may be given leave to enter the United Kingdom; but (b) that a further medical test or examination may be required in the interests of public health. (2) This paragraph also applies if an immigration officer examining a person under paragraph 2A decides (a) that his leave to enter the United Kingdom should not be cancelled; but (b) that a further medical test or examination may be required in the interests of public health. (3) The immigration officer may give the person concerned notice in writing requiring him (a) to report his arrival to such medical officer of health as may be specified in the notice; and (b) to attend at such place and time and submit to such test or examination (if any), as that medical officer of health may require.

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Citation of the Article of the Directive

Art.30.1

Notification of decisions 1. The persons concerned shall be notified in writing of any decision taken under Article 27(1), in such a way that they are able to comprehend its content and the implications for them.

Corresponding national provision (legal ref. & art.) Immigration (European Economic Area) Regulations 2006

Complete text of national provision (in language of Member State)

Fully in accord? (y/n)

26(7) The provisions of or made under the 2002 Act referred to in Schedule 1 shall have effect for the purposes of an appeal under these Regulations to the Asylum and Immigration Tribunal in accordance with that Schedule.

N, Incorrect

Regulation 26(7) Nationality, Immigration and Asylum Act 2002 S 105 Immigration (Notices) Regulations 2003 Regulation 4 & 5

105 (1) The Secretary of State may make regulations requiring a person to be given written notice where an immigration decision is taken in respect of him. (2) The regulations may, in particular, provide that a notice under subsection (1) of a decision against which the person is entitled to appeal under section 82(1) must state— (a) that there is a right of appeal under that section, and (b) how and when that right may be exercised. (3) The regulations may make provision (which may include presumptions) about service. 4 (1) Subject to regulation 6, the decision-maker must give written notice to a person of any immigration decision or EEA decision taken in respect of him which is appealable. (2) The decision-maker must give written notice to a person of the relevant grant of leave to enter or remain if, as a result of that grant, a right of appeal arises under section 83(2) of the 2002 Act. (3) If the notice is given to the representative of the person, it is to be taken to have been given to the person.

Comments/Problems

Incorrect transposition Regulation 26(7) refers outside the 2006 Regulations to the Nationality, Immigration and Asylum Act 2002, which contains a competence clause empowering the Secretary of State to make certain regulations about giving written notice. The Secretary of State has duly made such regulations (the Immigration (Notices) Regulations 2003 (S.I 2003/658)) which duly apply to EEA decisions under the 2006 Regulations. However, there is no specific obligation to make provide notification in writing ‘in such a way that [the persons concerned] are able to comprehend its content and the implications for them’. Persons subject to enforcement action under the immigration rules are entitled to an interpreter for any interviews which are conducted by enforcement officers. Information about this is to be found in the enforcement instructions and guidance available on the UKBA website (http://www.bia.homeoffice.gov.uk/policyandlaw/g uidance/enforcement/). Translations are made of written statements made by persons subject to enforcement action. Interpretation and translation is also available for court proceedings (see Asylum and Immigration Tribunal (Procedure) Rules 2005, available from http://www.ait.gov.uk/).

5(1) A notice given under regulation 4(1) is to - (a) include or be accompanied by a statement of the reasons for the decision to which it relates; and (b) if it relates to an immigration decision specified in section 82(2)(a), (g), (h), (i) or (j) of the 2002 Act, state the country or territory to which it is proposed to remove the person. (2) A notice given under regulation 4(2) is to include or be accompanied by a statement of the reasons for

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the rejection of the claim for asylum. (3) Subject to paragraph (6), the notice given under regulation 4 shall also include, or be accompanied by, a statement which advises the person of - (a) his right of appeal and the statutory provision on which his right of appeal is based; (b) whether or not such an appeal may be brought while in the United Kingdom; (c) the grounds on which such an appeal may be brought; and (d) the facilities available for advice and assistance in connection with such an appeal. (4) Subject to paragraph (6), the notice given under regulation 4 shall be accompanied by a notice of appeal which indicates the time limit for bringing the appeal, the address to which it should be sent or may be taken by hand and a fax number for service by fax. (5) Subject to paragraph (6), where the exercise of the right is restricted by an exception or limitation by virtue of a provision of Part 5 of the 2002 Act, the notice given under regulation 4 shall include or be accompanied by a statement which refers to the provision limiting or restricting the right of appeal. (6) The notice given under regulation 4 need not comply with paragraphs (3), (4) and (5) where a right of appeal may only be exercised on the grounds referred to in section 84(1)(b), (c) or (g) of the 2002 Act by virtue of the operation of section 88(4), 89(3), 90(4), 91(2), 98(4) or (5) of that Act. (7) Where notice is given under regulation 4 and paragraph (6) applies, if the person claims in relation to the immigration decision or the EEA decision that - (a) the decision is unlawful by virtue of section 19B of the Race Relations Act 1976(discrimination by public authorities); (b) the decision is unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to the Human Rights Convention) as being incompatible with the person's Convention rights; or (c) removal of the person from the United Kingdom

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in consequence of the immigration decision would breach the United Kingdom's obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the person's Convention rights, the decision-maker must as soon as practicable re-serve the notice of decision under regulation 4 and paragraph (6) of this regulation shall not apply. (8) Where a notice is re-served under paragraph (7), the time limit for appeal under the Procedure Rules shall be calculated as if the notice of decision had been served on the date on which it was re-served Art.30.2

2. The persons concerned shall be informed, precisely and in full, of the public policy, public security or public health grounds on which the decision taken in their case is based, unless this is contrary to the interests of State security.

Immigration (European Economic Area) Regulations 2006 Regulation 12(3), 16(6) and 17(5) Nationality, Immigration and Asylum Act 2002 S 105 Immigration (Notices) Regulations 2003 Regulation 4 & 5 (1)-(4)

12(3) Where an entry clearance officer receives an application under paragraph (2) he shall undertake an extensive examination of the personal circumstances of the applicant and if he refuses the application shall give reasons justifying the refusal unless this is contrary to the interests of national security. 16(6) Where the Secretary of State receives an application under paragraph (5) he shall undertake an extensive examination of the personal circumstances of the applicant and if he refuses the application shall give reasons justifying the refusal unless this is contrary to the interests of national security. 17(5) Where the Secretary of State receives an application under paragraph (4) he shall undertake an extensive examination of the personal circumstances of the applicant and if he refuses the application shall give reasons justifying the refusal unless this is contrary to the interests of national security.

Y

Effective transposition The transposition note indicates that the same provisions as in relation to Article 30(1) regarding notification of decisions applies. The Immigration (Notices) Regulations apply to decisions to make a deportation order which may be appealable under the 2002 Act. The obligation to be informed ‘precisely and in full’ is contained in the Immigration (Notices) Regulations 2003, regulation 5 (contents of notice). The transposition note also refers to decisions taken concerning extended family members as defined in the Regulations, and these provisions have been included here, although they may not be strictly appropriate.

105 (1) The Secretary of State may make regulations requiring a person to be given written notice where an immigration decision is taken in respect of him. (2) The regulations may, in particular, provide that a notice under subsection (1) of a decision against which the person is entitled to appeal under section

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82(1) must state— (a) that there is a right of appeal under that section, and (b) how and when that right may be exercised. (3) The regulations may make provision (which may include presumptions) about service. 4 (1) Subject to regulation 6, the decision-maker must give written notice to a person of any immigration decision or EEA decision taken in respect of him which is appealable. (2) The decision-maker must give written notice to a person of the relevant grant of leave to enter or remain if, as a result of that grant, a right of appeal arises under section 83(2) of the 2002 Act. (3) If the notice is given to the representative of the person, it is to be taken to have been given to the person. 5. (1) A notice given under regulation 4(1) is to (a) include or be accompanied by a statement of the reasons for the decision to which it relates; and (b) if it relates to an immigration decision specified in section 82(2)(a), (g), (h), (i) or (j) of the 2002 Act, state the country or territory to which it is proposed to remove the person. (2) A notice given under regulation 4(2) is to include or be accompanied by a statement of the reasons for the rejection of the claim for asylum. (3) Subject to paragraph (6), the notice given under regulation 4 shall also include, or be accompanied by, a statement which advises the person of (a) his right of appeal and the statutory provision on which his right of appeal is based; (b) whether or not such an appeal may be brought while in the United Kingdom; (c) the grounds on which such an appeal may be brought; and (d) the facilities available for advice and assistance in connection with such an appeal. (4) Subject to paragraph (6), the notice given under

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regulation 4 shall be accompanied by a notice of appeal which indicates the time limit for bringing the appeal, the address to which it should be sent or may be taken by hand and a fax number for service by fax. Art.30.3

3. The notification shall specify the court or administrative authority with which the person concerned may lodge an appeal, the time limit for the appeal and, where applicable, the time allowed for the person to leave the territory of the Member State. Save in duly substantiated cases of urgency, the time allowed to leave the territory shall be not less than one month from the date of notification.

Immigration (European Economic Area) Regulations 2006 Regulation 24(1), (4) & (6)

Y

Effective transposition The Immigration (Notices) Regulations 2003 (S.I 2003/658) apply.

(4) A person who enters or seeks to enter the United Kingdom in breach of a deportation order made against him pursuant to paragraph (3) shall be removable as an illegal entrant under Schedule 2 to the 1971 Act and the provisions of that Schedule shall apply accordingly. (6) A person to whom this regulation applies shall be allowed one month to leave the United Kingdom, beginning on the date on which he is notified of the decision to remove him, before being removed pursuant to that decision except(a) in duly substantiated cases of urgency; (b) where the person is detained pursuant to the sentence or order of any court; (c) where a person is a person to whom regulation 24(4) applies.

Regulation 26(6)

26(6) Except where an appeal lies to the Commission, an appeal under these Regulations lies to the Asylum and Immigration Tribunal.

Nationality, Immigration and Asylum Act 2002

105 (1) The Secretary of State may make regulations requiring a person to be given written notice where an immigration decision is taken in respect of him. (2) The regulations may, in particular, provide that a notice under subsection (1) of a decision against which the person is entitled to appeal under section 82(1) must state— (a) that there is a right of appeal under that section, and

S 105

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24(1) This regulation applies to a person whom it has been decided to remove from the United Kingdom in accordance with regulation 19 (3).

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(b) how and when that right may be exercised. (3) The regulations may make provision (which may include presumptions) about service. Art.31.1

Procedural safeguards 1. The persons concerned shall have access to judicial and, where appropriate, administrative redress procedures in the host Member State to appeal against or seek review of any decision taken against them on the grounds of public policy, public security or public health.

Immigration (European Economic Area) Regulations 2006 Regulation 26 (1), (2), (6), (7)

Regulation 28 (1) – (4)

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26 —(1) Subject to the following paragraphs of this regulation, a person may appeal under these Regulations against an EEA decision. (2) If a person claims to be an EEA national, he may not appeal under these Regulations unless he produces a valid national identity card or passport issued by an EEA State [is this a normal requirement under UK law?) (3) If a person claims to be the family member or relative of an EEA national he may not appeal under these Regulations unless he produces—(a) an EEA family permit; or (b) other proof that he is related as claimed to an EEA national. (6) Except where an appeal lies to the Commission, an appeal under these Regulations lies to the Asylum and Immigration Tribunal. (7) The provisions of or made under the 2002 Act referred to in Schedule 1 shall have effect for the purposes of an appeal under these Regulations to the Asylum and Immigration Tribunal in accordance with that Schedule. 28 —(1) An appeal against an EEA decision lies to the Commission where paragraph (2) or (4) applies. (2) This paragraph applies if the Secretary of State certifies that the EEA decision was taken— (a) by the Secretary of State wholly or partly on a ground listed in paragraph (3); or (b) in accordance with a direction of the Secretary of State which identifies the person to whom the decision relates and which is given wholly or partly on a ground listed in paragraph (3). (3) The grounds mentioned in paragraph (2) are that the person's exclusion or removal from the United Kingdom is—(a) in the interests of national security;

N, Incorrect

Incorrect transposition The appeal will normally be possible to the Asylum and Immigration Tribunal, and thence to the Court of Appeal on points of law. However, in certain circumstances an appeal will go straight to the Special Immigration Appeals Commission (SIAC) in the area of national security cases: if the requirements in regulation 28 (2) or (4) are fulfilled, i.e. that the Secretary of State has certified that the decision was taken either by the Secretary of State or in accordance with a direction of the Secretary of State (for more details see http://www.siac.tribunals.gov.uk/aboutus.htm). There does not appear to be a basis in EU law for Regulation 28, as those appearing before SIAC do not enjoy the safeguards set out in Articles 30 and 31 of the Directive (e.g. being informed precisely and in full’ of the public policy, public security or public health reasons for their exclusion unless it is contrary to the interests of State Security). The SIAC system specifically allows the Secretary of State to reveal material which he does not wish to reveal to the applicant to the court alone, and a Special Advocates scheme has been established whereby barristers with security clearance are given that information, and allowed to use it in constructing the defence of their client, but they must not reveal it to the client. This is highly controversial in the UK. There is no basis in EU law for treating the interests of relations between the UK and another country, which is one of the grounds in Regulation 28(2)(b). An appeal will lie to the Court of Appeal, which

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Art.31.2

Citation of the Article of the Directive

2. Where the application for appeal against or judicial review of the expulsion decision is accompanied by an application for an interim order to suspend enforcement of that decision, actual removal from the territory may not take place until such time as the decision on the interim order has been taken, except: — where the expulsion decision is based on a previous judicial decision; or — where the persons concerned have had previous access to judicial review; or — where the expulsion decision is based on imperative grounds of public security under Article 28(3).

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Corresponding national provision (legal ref. & art.)

Immigration (European Economic Area) Regulations 2006 Regulation 27

Complete text of national provision (in language of Member State)

or (b) in the interests of the relationship between the United Kingdom and another country. (4) This paragraph applies if the Secretary of State certifies that the EEA decision was taken wholly or partly in reliance on information which in his opinion should not be made public—(a) in the interests of national security; (b) in the interests of the relationship between the United Kingdom and another country; or (c) otherwise in the public interest. 27 —(1) Subject to paragraphs (2) and (3), a person may not appeal under regulation 26 whilst he is in the United Kingdom against an EEA decision—(a) to refuse to admit him to the United Kingdom; (b) to refuse to revoke a deportation order made against him; (c) to refuse to issue him with an EEA family permit; or (d) to remove him from the United Kingdom after he has entered or sought to enter the United Kingdom in breach of a deportation order. (2) Paragraph (1)(a) does not apply where— (a) the person held an EEA family permit, a registration certificate, a residence card, a document certifying permanent residence or a permanent residence card on his arrival in the United Kingdom or can otherwise prove that he is resident in the United Kingdom; (b) the person is deemed not to have been admitted to the United Kingdom under regulation 22(3) but at the date on which notice of the decision to refuse to admit him is given he has been in the United Kingdom for at least 3 months; (c) the person is in the United Kingdom and a ground of the appeal is that, in taking the decision, the decision maker acted in breach of his rights under the Human Rights Convention or the Refugee Convention, unless the Secretary of State certifies that that ground of appeal is clearly unfounded.

Fully in accord? (y/n)

Comments/Problems

will operate under the same constraints in relation to national security issues, with the Special Advocate scheme applying as necessary. As appeal is on points of law only, it is anticipated that the security issues which arise in relation to the facts should be less prominent.

Y

Effective transposition Regulation 27 is included because it indicates that the normal appeal is out of country, except where the applicant is already resident. This reverses the priority given in the Directive to in country appeals, except in certain limited circumstances. Regulation 29 is included because it deals with the effects of appeals, including the suspensory effects which are also regulated by Article 31(2), although it makes no specific reference to imperative grounds of public security. The effects of the UK Regulations can be judged to be equivalent to the Directive, but they represent a somewhat confusing transposition, which intersects to a very high degree with ‘ordinary’ immigration legislation, such as the provisions of the Immigration and Nationality Act 2002, which are included also. The UK rules were reformulated in response to the ECJ judgment in Yiadom, where it held that a decision refusing leave to enter the UK after the applicant had been in the UK for seven months on temporary admission was in reality a decision to remove her, not a decision on entry. The ECJ found that it was not appropriate to give someone a temporary status in the country, then make a decision which means they must leave, but to label it a decision on entry rather than removal and so

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(3) Paragraph (1)(d) does not apply where a ground of the appeal is that, in taking the decision, the decision maker acted in breach of the appellant's rights under the Human Rights Convention or the Refugee Convention, unless the Secretary of State certifies that that ground of appeal is clearly unfounded. Regulation 29

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Fully in accord? (y/n)

Comments/Problems

deprive them of appeal rights. In that respect, the rules for EU citizens and their family members are more generous than the ordinary immigration laws.

29 —(1) This Regulation applies to appeals under these Regulations made to the Asylum and Immigration Tribunal. (2) If a person in the United Kingdom appeals against an EEA decision to refuse to admit him to the United Kingdom, any directions for his removal from the United Kingdom previously given by virtue of the refusal cease to have effect, except in so far as they have already been carried out, and no directions may be so given while the appeal is pending. (3) If a person in the United Kingdom appeals against an EEA decision to remove him from the United Kingdom, any directions given under section 10 of the 1999 Act or Schedule 3 to the 1971 Act for his removal from the United Kingdom are to have no effect, except in so far as they have already been carried out, while the appeal is pending. (4) But the provisions of Part I of Schedule 2, or as the case may be, Schedule 3 to the 1971 Act with respect to detention and persons liable to detention apply to a person appealing against a refusal to admit him or a decision to remove him as if there were in force directions for his removal from the United Kingdom, except that he may not be detained on board a ship or aircraft so as to compel him to leave the United Kingdom while the appeal is pending. (5) In calculating the period of two months limited by paragraph 8(2) of Schedule 2 to the 1971 Act for—(a) the giving of directions under that paragraph for the removal of a person from the United Kingdom; and (b) the giving of a notice of intention to give such

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directions, any period during which there is pending an appeal by him under is to be disregarded. (6) If a person in the United Kingdom appeals against an EEA decision to remove him from the United Kingdom, a deportation order is not to be made against him under section 5 of the 1971 Act while the appeal is pending. (7) Paragraph 29 of Schedule 2 to the 1971 Act (grant of bail pending appeal) applies to a person who has an appeal pending under these Regulations as it applies to a person who has an appeal pending under section 82(1) of the 2002 Act. Nationality, Immigration and Asylum Act 2002 S 78 & 82 (1)

S 78 (1) While a person’s appeal under section 82(1) is pending he may not be— (a) removed from the United Kingdom in accordance with a provision of the Immigration Acts, or (b) required to leave the United Kingdom in accordance with a provision of the Immigration Acts. (2) In this section “pending” has the meaning given by section 104. (3) Nothing in this section shall prevent any of the following while an appeal is pending— (a) the giving of a direction for the appellant’s removal from the United Kingdom, (b) the making of a deportation order in respect of the appellant (subject to section 79), or (c) the taking of any other interim or preparatory action. (4) This section applies only to an appeal brought while the appellant is in the United Kingdom in accordance with section 92.

S 82 (1) Where an immigration decision is made in respect of a person he may appeal to an adjudicator. Art.31.3

3. The redress procedures shall allow for an examination of the legality of the decision, as well as of

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Immigration (European Economic Area)

26(1) Subject to the following paragraphs of this regulation, a person may appeal under these Regulations against an EEA decision.

Y

Effective transposition No specific provision for the text of Article 31(3) is

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Citation of the Article of the Directive

the facts and circumstances on which the proposed measure is based. They shall ensure that the decision is not disproportionate, particularly in view of the requirements laid down in Article 28.

Art.31.4

4. Member States may exclude the individual concerned from their territory pending the redress procedure, but they may not prevent the individual from submitting his/her defence in person, except when his/ her appearance may cause serious troubles to public policy or public security or when the appeal or judicial review concerns a denial of entry to the territory.

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Corresponding national provision (legal ref. & art.) Regulations 2006 Regulation 26(1) & 28(1)

Immigration (European Economic Area) Regulations 2006 Regulation 27

Complete text of national provision (in language of Member State)

Fully in accord? (y/n)

28 —(1) An appeal against an EEA decision lies to the Commission where paragraph (2) or (4) applies

27 —(1) Subject to paragraphs (2) and (3), a person may not appeal under regulation 26 whilst he is in the United Kingdom against an EEA decision—(a) to refuse to admit him to the United Kingdom; (b) to refuse to revoke a deportation order made against him; (c) to refuse to issue him with an EEA family permit; or (d) to remove him from the United Kingdom after he has entered or sought to enter the United Kingdom in breach of a deportation order. (2) Paragraph (1)(a) does not apply where— (a) the person held an EEA family permit, a registration certificate, a residence card, a document certifying permanent residence or a permanent residence card on his arrival in the United Kingdom or can otherwise prove that he is resident in the United Kingdom; (b) the person is deemed not to have been admitted to the United Kingdom under regulation 22(3) but at the date on which notice of the decision to refuse to admit him is given he has been in the United Kingdom for at least 3 months; (c) the person is in the United Kingdom and a ground of the appeal is that, in taking the decision, the decision maker acted in breach of his rights under the Human Rights Convention or the Refugee Convention, unless the Secretary of State certifies that that ground of appeal is clearly unfounded. (3) Paragraph (1)(d) does not apply where a ground of the appeal is that, in taking the decision, the

N, Incomple te

Comments/Problems

made in the Regulations. However, the general national law on appeals, and the EU principle of national procedural autonomy should cover the question. Furthermore, there is no evidence that the scope of appeal rights has previously been an issue in relation to UK compliance with EU law in this field, and UK courts have shown, on the whole, a willingness to refer difficult questions to the ECJ, although there are some specific doubts about compliance in UK courts with the principles contained in the Jia case of the ECJ. Incomplete transposition No specific provision is made for presentation of the defence in person.

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Art.32.1

Citation of the Article of the Directive

Duration of exclusion orders 1. Persons excluded on grounds of public policy or public security may submit an application for lifting of the exclusion order after a reasonable period, depending on the circumstances, and in any event after three years from enforcement of the final exclusion order which has been validly adopted in accordance with Community law, by putting forward arguments to establish that there has been a material change in the circumstances which justified the decision ordering their exclusion.

The Member State concerned shall reach a decision on this application within six months of its submission.

Corresponding national provision (legal ref. & art.)

Immigration (European Economic Area) Regulations 2006 Regulation 24(3)

Immigration Act 1971 S 5(1) & (2)

Immigration (European Economic Area) Regulations 2006 Regulation 24(3)

Art.32.2

2. The persons referred to in paragraph 1 shall have no right of entry to the territory of the Member State concerned while their

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Immigration (European Economic Area) Regulations 2006

Complete text of national provision (in language of Member State)

decision maker acted in breach of the appellant's rights under the Human Rights Convention or the Refugee Convention, unless the Secretary of State certifies that that ground of appeal is clearly unfounded. 24(3) Where the decision is under regulation 19(3)(b), the person is to be treated as if he were a person to whom section 3(5)(a) of the 1971 Act (liability to deportation) applied, and section 5 of that Act (procedure for deportation) and Schedule 3 to that Act (supplementary provision as to deportation) are to apply accordingly.

Fully in accord? (y/n)

N, Incorrect

Comments/Problems

Incorrect transposition The transposition note states that Section 5(2) of the Immigration Act 1971 provides that a person may apply at any time to have any outstanding deportation order in place against him revoked. It is doubtful whether these provisions effectively transpose the provisions of the Directive.

5 (1) Where a person is under section 3(5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom; and a deportation order against a person shall invalidate any leave to enter or remain in the United Kingdom given him before the order is made or while it is in force. (2) A deportation order against a person may at any time be revoked by a further order of the Secretary of State, and shall cease to have effect if he becomes a British citizen. 24(3) Where the decision is under regulation 19(3)(b), the person is to be treated as if he were a person to whom section 3(5)(a) of the 1971 Act (liability to deportation) applied, and section 5 of that Act (procedure for deportation) and Schedule 3 to that Act (supplementary provision as to deportation) are to apply accordingly.

N, Incorrect

24 (4) A person who enters or seeks to enter the United Kingdom in breach of a deportation order made against him pursuant to paragraph (3) shall be removable as an illegal entrant under Schedule 2 to

Y

Incorrect transposition In the absence of a specific process the same doubts apply as in relation to Article 32(1), first sentence.

Effective transposition.

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application is being considered. Regulation 24 (4) Art.33.1

Expulsion as a penalty or legal consequence

Immigration Act 1971

1. Expulsion orders may not be issued by the host Member State as a penalty or legal consequence of a custodial penalty, unless they conform to the requirements of Articles 27, 28 and 29.

S 3 (5)&(6)

UK Borders Act 2007 ss32 and 33

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Fully in accord? (y/n)

Comments/Problems

the 1971 Act and the provisions of that Schedule shall apply accordingly. 3 (5) A person who is not a British citizen shall be liable to deportation from the United Kingdom-(a) if, having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave; or (a) if he has obtained leave to remain by deception; or (b) if the Secretary of State deems his deportation to be conducive to the public good; or (c) if another person to whose family he belongs is or has been ordered to be deported. (6) Without prejudice to the operation of subsection (5) above, a person who is not a British citizen shall also be liable to deportation from the United Kingdom if, after he has attained the age of seventeen, he is convicted of an offence for which he is punishable with imprisonment and on his conviction is recommended for deportation by a court empowered by this Act to do so.

Y

Effective transposition The evolution of the UK law and policy in this area needs to be read against the wider politicisation of the question of the (automatic) deportation of foreign criminals at the conclusion of their sentences. There has been recent legislation (UK Borders Act 2007) to make deportation, as provided for under the Immigration Act 1971 automatic, whilst introducing saving clauses for EU citizens protecting from autonomic deportation, and ensuring that they remain subject to the provisions of the 2006 EEA Regulations. However, there are fears, which are expanded upon in the Conformity Study, that in the heightened state of public hysteria about this question, EU citizens may be swept up in the rush by the Government to be seen to be ‘doing something’ about foreign criminals. However, as illustrated by the cases on Articles 27, 28 and 29, especially the Chindamo case, there are no major concerns that UK law is not in compliance in practice with the Directive.

32 Automatic Deportation (1) In this section ‘foreign criminal’ means a person(a) who is not a British citizen, (b) who is convicted in the United Kingdom of an offence, and (c) to whom Condition 1 or 2 applies (2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months (3) Condition 2 is that(a) the offence is specified by order of the Secretary of State under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (serious criminal), and (b) the person is sentence to a period of imprisonment.

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Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member-States Art

Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

Complete text of national provision (in language of Member State)

Fully in accord? (y/n)

Comments/Problems

(4) For the purpose of section 3(5)(a) of the Immigration Act 1971, the deportation of a foreign prisoner is conducive to the public good. ‌ 33 Exceptions (1) Section 32(4) and (5)(a) do not apply where an exception in this section applies ‌ (4) Exception 3 is where the removal of a foreign criminal from the United Kingdom in pursuance of a deportation order would breach rights of the foreign criminal under the Community treaties. Art.33.2

Art.34

2. If an expulsion order, as provided for in paragraph 1, is enforced more than two years after it was issued, the Member State shall check that the individual concerned is currently and genuinely a threat to public policy or public security and shall assess whether there has been any material change in the circumstances since the expulsion order was issued. Publicity Member States shall disseminate information concerning the rights and obligations of Union citizens and their family members on the subjects covered by this Directive, particularly by means of awarenessraising campaigns conducted through national and local media and other means of communication.

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Immigration (European Economic Area) Regulations 2006 Regulation 24 (5)

No legislative action taken, however, the explanatory note to the Immigration (EEA) Regulations 2006 sets out that the Secretary of State will make appropriate notification of the rights and

24 (5) Where such a deportation order is made against a person but he is not removed under the order during the two year period beginning on the date on which the order is made, the Secretary of State shall only take action to remove the person under the order after the end of that period if, having assessed whether there has been any material change in circumstances since the deportation order was made, he considers that the removal continues to be justified on the grounds of public policy, public security or public health.

Y

Effective transposition

The UK Border Agency has a website which sets ou in detail the rules applicable to EU citizens and their family members, and provides access to both the relevant forms for applying for documents such as registration certificates and residence cards, and the European Casework Instructions which amplify the UK Government approach in this area. http://www.ukba.homeoffice.gov.uk/eucitizens/.

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Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member-States Art

Citation of the Article of the Directive

Art.35

Abuse of rights Member States may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Directive in the case of abuse of rights or fraud, such as marriages of convenience. Any such measure shall be proportionate and subject to the procedural safeguards provided for in Articles 30 and 31.

Art.36

Sanctions Member States shall lay down provisions on the sanctions applicable to breaches of national rules adopted for the implementation of this Directive and shall take the measures required for their application. The sanctions laid down shall be effective and proportionate. Member States shall notify the Commission of these provisions not later than 30 April 2006 and as promptly as possible in the case of any subsequent changes.

Milieu Ltd & Europa Institute

Corresponding national provision (legal ref. & art.) obligations arising under the Directive and the Regulations. Immigration (European Economic Area) Regulations 2006

Complete text of national provision (in language of Member State)

Fully in accord? (y/n)

2 (1) “civil partner” does not include a party to a civil partnership of convenience; “spouse” does not include a party to a marriage of convenience;

Y

s 24 Illegal entry and similar offences. (1) A person who is not a British citizen shall be guilty of an offence punishable on summary conviction with a fine of not more than level 5 on the standard scale or with imprisonment for not more than six months, or with both, in any of the following cases:-(a) if contrary to this Act he knowingly enters the United Kingdom in breach of a deportation order or without leave; (b) if, having only a limited leave to enter or remain in the United Kingdom, he knowingly either-- (i) remains beyond the time limited by the leave; or (ii) fails to observe a condition of the leave; (c) if, having lawfully entered the United Kingdom without leave by virtue of section 8(1) above, he remains without leave beyond the time allowed by section 8(1); (d) if, without reasonable excuse, he fails to comply with any requirement imposed on him under Schedule 2 to this Act to report to a medical officer of health, or to attend, or submit to a test or examination, as required by such an officer;

Y

Comments/Problems

Effective transposition No general principle enacted into the legislation, but rather merely a reference to the ‘marriage of convenience’.

Regulation 2 (1)

Immigration Act 1971 S 24 S 33

Effective transposition The transposition states that no legislative action is required. Some general immigration law sanctions are set out here. A level 5 fine is fixed at £5000 by s 37 of the Criminal Justice Act 1982 for England and Wales, s 225(1) of the Criminal Procedure (Scotland) Act 1995, and s 5 of the Fines and Penalties (Northern Ireland) Order 1984. Ultimately, a UK court will be able to decide whether this constitutes an effective and proportionate sanction if this is challenged in an appeal process.

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Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member-States Art

Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

Complete text of national provision (in language of Member State)

Fully in accord? (y/n)

Comments/Problems

(e) if, without reasonable excuse, he fails to observe any restriction imposed on him under Schedule 2 or 3 to this Act as to residence , as to his employment or occupation or as to reporting to the police[, to an immigration officer or to the Secretary of State]; (f) if he leaves a train in the United Kingdom after being placed on board under Schedule 2 or 3 to this Act with a view to his removal from the United Kingdom; (g) if he leaves or seeks to leave the United Kingdom through the tunnel system in contravention of a restriction imposed by or under an Order in Council under section 3(7) of this Act. (1A) A person commits an offence under subsection (1)(b)(i) above on the day when he first knows that the time limited by his leave has expired and continues to commit it throughout any period during which he is in the United Kingdom thereafter; but a person shall not be prosecuted under that provision more than once in respect of the same limited leave. (3) The extended time limit for prosecutions which is provided for by section 28 below shall apply to offences under subsection (1)(a) and (c) above. (4) In proceedings for an offence against subsection (1)(a) above of entering the United Kingdom without leave,-(a) any stamp purporting to have been imprinted on a passport or other travel document by an immigration officer on a particular date for the purpose of giving leave shall be presumed to have been duly so imprinted, unless the contrary is proved; (b) proof that a person had leave to enter the United Kingdom shall lie on the defence if, but only if, he is shown to have entered within six months before the date when the proceedings were commenced. S 33 "illegal entrant" means a person-(a) unlawfully entering or seeking to enter in breach of a deportation order or of the immigration laws, or

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Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member-States Art

Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

Complete text of national provision (in language of Member State)

Fully in accord? (y/n)

Comments/Problems

(b) entering or seeking to enter by means which include deception by another person, and includes also a person who has entered as mentioned in paragraph (a) or (b) above; Art.37

Art.38

Art.39

More favourable provisions

national

The provisions of this Directive shall not affect any laws, regulations or administrative provisions laid down by a Member State which would be more favourable to the persons covered by this Directive. 1. Articles 10 and 11 of Regulation (EEC) No 1612/68 shall be repealed with effect from 30 April 2006. 2. Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC shall be repealed with effect from 30 April 2006. 3. References made to the repealed provisions and Directives shall be construed as being made to this Directive. No later than 30 April 2008 the Commission shall submit a report on the application of this Directive to the European Parliament and the Council, together with any necessary proposals, notably on the opportunity to extend the period of time during which Union citizens and their family members may reside in the territory of the host Member State without any conditions. The Member States shall

Milieu Ltd & Europa Institute

No action taken.

Immigration (EEA) Regulations 2006 The Explanatory Note details the amended and repealed Regulation and Directives.

N/A

These Regulations implement Directive 2004/38/EC of the European Parliament and the Council of 29th April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC.

N/A

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Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member-States Art

Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

Complete text of national provision (in language of Member State)

Fully in accord? (y/n)

Comments/Problems

Immigration (European Economic Area) Regulations 2006

1. These Regulations may be cited as the Immigration (European Economic Area) Regulations 2006 and shall come into force on 30th April 2006.

Y

Effective transposition

These Regulations implement Directive 2004/38 of the European Parliament and the Council of 29th April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC.

Y

Effective transposition

provide the Commission with the information needed to produce the report. Art.40

Transposition 1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 30 April 2006. When Member States adopt those measures, they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by the Member States. 2. Member States shall communicate to the Commission the text of the provisions of national law which they adopt in the field covered by this Directive together with a table showing how the provisions of this Directive correspond to the national provisions adopted.

Milieu Ltd & Europa Institute

Regulation 1 Immigration (European Economic Area) Regulations 2006 Explanatory Note

The Explanatory Memorandum to The Immigration (European Economic Area) Regulations 2006 No. 1003 contains a table showing how the provisions of this Directive correspond to the national provisions adopted.

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