NEWSLETTER No. 49 - February 2016

ILR Indefinite Leave to RemainUNITED KINGDOM – the new immigration rules proposed after the EU Referendum

After the recent negotiations in Brussels, we now have further information on proposed changes to immigration law if the UK votes to remain in the EU following the referendum in June.

The UK government has agreed a deal to give the UK “special status” in the EU – assuming the referendum is passed.

There are 2 main areas of immigration that will be affected by new regulations after June.

These are;

1) Family Members of EU / EEA citizens.

2) British citizens using EU law for family members (the Surinder Singh route)


Let’s look at each of these areas.

* Family Members of EU / EEA citizens.

For the first group (Family Members of EU / EEA citizens), the UK government is trying to take back control of the rights of those family members to live in the UK under EU law. In summary, unless those family members already have a right of residence in an EU member state then it seems they will be subject to UK immigration law.

The document states they will exclude;

“from the scope of free movement rights, third country nationals who had no prior lawful residence in a Member State before marrying a Union citizen or who marry a Union citizen only after the Union citizen has established residence in the host Member State”

In such cases;

“the host Member State's immigration law will apply”

Currently, such family members can use their EU free movement rights to move to the UK with their EU citizen spouse. This can be done regardless of where they live – in the EU or outside the EU. They can apply for EEA family permits from outside the UK and EEA residence cards in the UK.

In future, it seems the UK government will be allowed to insist that such applicants are treated under UK immigration law – which is much tougher. UK immigration law requires a minimum income test, proof of English language ability, greater proof of relationships, high immigration application fees and overall a much tougher regime.

In short - the applicant loses all the advantages of applying through the EEA Family Member route.

This would seem to be a radical change and will especially affect the many EU citizens and their spouses living outside the EU.

So, for instance – after June, a Brazilian citizen married to a French citizen living in Brazil, would have to apply under the UK immigration rules to move to the UK. This would mean that they would need to meet the UK immigration financial requirement. Perhaps by showing they have substantial savings or the French citizen might need to move to the UK first to work for 6 months. The Brazilian citizen would need to pass an English test and pay the high UK immigration application fees.

Currently – none of these requirements are in place when applying as an EEA family member.

Obviously we are yet to see exactly what specific requirements will be introduced and a timetable for this. But the new rules will only be in place at some point after June so many applicants should consider whether they should apply now to move to the UK through the EEA route – such as applying now for EEA family permits or EEA residence cards.

Applicants who are classed as an EEA family member before June should be able to continue to stay in the UK through their EU Free Movement rights.


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* British citizens using EU law for family members (the Surinder Singh route)

The second group of applicants that are specifically mentioned in the UK / EU deal are those British citizens who use EU law to live in another EU member state and then return to the UK with their spouse. This is usually referred to the Surinder Singh route after the case that first established this principle of EU free movement.

The document states;

“Member States can address specific cases of abuse of free movement rights by Union citizens returning to their Member State of nationality with a non-EU family member where residence in the host Member State has not been sufficiently genuine to create or strengthen family life and had the purpose of evading the application of national immigration rules.”

So while there is nothing to suggest this route will be abolished, this seems to signal much greater scrutiny of such applications after June. The UK government already has a rigorous “centre of life test” in their EEA regulations for such applications – requiring the British citizen to show that they have moved the centre of their life to the other EU member state.

The document seems to be giving much greater powers to the UK to require longer periods of residence, more evidence of employment / self-employment and in effect trying to put the UK’s “centre of life test” beyond any legal challenge.

Summary

It is important to understand that the UK / EU deal is contingent on the result of the UK referendum on 23 June 2016 being a vote to remain in the UK.

The proposed changes above will then be implemented by the UK and the EU – with changes in the necessary Directives and Regulations as required.

The changes could take a little time to be phased in – the exact timetable and scope of the changes is still not clear.

EEA family members should seriously consider if they can move to the UK now under the current existing rules before the new rules are introduced.

If the referendum is not passed then we really are in unchartered territory. This would result in the UK withdrawing from the EU and working out an agreement for the rights of EU citizens and their family members currently living in the UK. This would also have to include the rights of British citizens and their family members currently living in other EU member states.


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Regards
Tim McMahon
Commonwealth Immigration
www.commonwealthimmigration.com

 
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