By Colin Yeo

Summary

The Home Office has hardened its position on EU citizens who are living in the UK but who do not have a “right of residence” under Directive 2004/38/EC. New regulations were introduced on 1 February 2017 and a swathe of policy documents were updated shortly afterwards.

These regulations and policies increasingly suggest that an EU citizen who is physically present in the UK but who the Home Office considers does not have a right of residence is in a precarious and unlawful position and can be removed from the UK at any time. New powers have been assumed by the Home Office to do just that: remove an EU citizen who has no “right to reside” under the UK’s already restrictive regulations.

It is highly unlikely that the Home Office will begin a programme of mass expulsion of EU citizens even where they do not have a right of residence. It is extremely unfortunate, though, that the UK government is casting doubt on the right of residence of so many EU citizens living in the UK.

Who is affected?

There are three principal groups affected:

The main group affected are EU citizens who are self sufficient but who do not have comprehensive sickness insurance. This would include an EU citizen married to a British citizen where the EU citizen does not have comprehensive sickness insurance, is not currently working or self employed and has not worked or been self employed for five continuous years. EU citizen students (past or present) are also affected where they did not have comprehensive sickness insurance. Other EU citizens who are physically present in the UK but not qualified persons are also affected. This would include EU citizens simply living in the UK who are not having recourse to public funds but do not have comprehensive sickness insurance and street homeless EU citizens.

Explainer: Comprehensive sickness insurance: what is it and who needs it?

The tougher approach, which has been building up for some time but on a previously informal legal basis, is probably aimed at street homeless Eastern European and Baltic state nationals. There has been a dramatic increase in detentions and removals of this group, and some reports of others being caught up in the same scheme.

Because in EU law the legal situation of these groups is the same, though, the regulations and policies should affect all equally if the law is equally applied.

What is the effect?

If the Home Office is correct and these groups have no right of residence in EU then there are a number of consequences for those affected:

They can be invited to prove their case to the Home Office and/or be invited to attend an interview with the Home Office. They can be removed from the UK at any time. Any appeal against removal would have to be after removal. If they leave the UK and re-enter they may be committing a criminal offence under section 24 of the Immigration Act 1971. They cannot qualify for British citizenship for at least five years because they need to acquire permanent residence first, at least in the opinion of the Home Office. They may not qualify for British citizenship for up to 10 years because they may face refusal on good character groups for breaching UK immigration laws. Their children will not be born British citizens (unless the other parent is a British citizen or is settled).

These are serious consequences with a profound impact on people’s lives and their sense of security. However, there is a very strong argument in EU law and UK law that the Home Office position is incorrect.

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It might be thought to be somewhat insensitive of the Home Office to be adopting a legally dubious and restrictive stance on the residence rights of EU citizens at exactly the time that EU citizens already feel extremely anxious about their position in the UK. It might also be thought potentially counterproductive given the impending negotiations on the terms of the UK’s departure from the EU.

What new powers has the Home Office acquired?

Under new regulations which came into force on 1 February 2017, the Immigration (European Economic Area) Regulations 2016, the Home Office has acquired controversial new enforcement powers against EU citizens:

Investigation of right of residence

Previously, EU citizens could live in the UK freely and without any need to prove their status. Paragraph 22 of the new regulations enables the Home Office to “verify” the right of residence of an EU citizen. This involves inviting the person to prove evidence of their right of residence and/or inviting the person to attend an interview with Home Office officials.

Where a person fails to comply with such a request, “the Secretary of State may draw any factual inferences about A’s entitlement to a right to reside as appear appropriate in the circumstances.” Specifically, the Secretary of State may decide that the person does not have or ceases to have a right to reside.

Enforced removal

Paragraph 23(6) confers on the Home Office the unfettered power to remove a person the Home Office considers does not have a right of residence under the regulations (note use of word “or” between (b) and (c), meaning each power exists independently of the others):

(6) Subject to paragraphs (7) and (8), an EEA national who has entered the United Kingdom or the family member of such a national who has entered the United Kingdom may be removed if— (a) that person does not have or ceases to have a right to reside under these Regulations; (b) the Secretary of State has decided that the person’s removal is justified on grounds of public policy, public security or public health in accordance with regulation 27; or (c) the Secretary of State has decided that the person’s removal is justified on grounds of misuse of rights under regulation 26(3).

This power applies to the EU national spouse of a British citizen who is self sufficient but does not have comprehensive sickness insurance. Under the regulations such a person has no right to reside and may therefore be removed from the UK.

Any appeal against removal has to occur from outside the UK after departure from the UK. Waiting times for immigration appeals are as long as 72 weeks. The value of such an appeal is therefore somewhat questionable.

Example Martin applies for a permanent residence certificate. He has been resident in the UK for 20 years as the spouse of a British national. He has never worked or been a qualified person continuously for five years because he does not have private comprehensive sickness insurance so has never acquired permanent residence. His application is rejected by the Home Office. Under the new regulations he can be removed immediately as a person with no right to reside and who is therefore (in the opinion of the Home Office) unlawfully present in the UK. This could be enforced with a dawn raid and detention at an immigration detention centre pending departure.

Whether the Home Office will actually seek to follow this approach seems questionable but this is what the new regulations provide for.

Where do rights of residence of EU citizens in the UK come from?

There are three sources of rights for EU citizens resident in the UK:

1. Treaties

The treaties that underpin the European Union, principally the Treaty on the Functioning of the European Union (TFEU). TFEU Article 21 begins:

Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.

This has been held by the Court of Justice of the European Union to confer a general right to reside in another Member State. For example, in Zambrano C‑34/09 and a series of cases that follow it, TFEU Article 21 (and Article 20, which is in similar terms) has been interpreted as conferring a direct and strong right of residence on an EU citizen, even an EU citizen who does not fulfil the criteria for the “right of residence” described in Article 7 of Directive 2004/38/EC below.

2. Directives and Regulations made by the EU

Directives and Regulations have to be made under the treaties and be consistent with the treaties. They elucidate and give life to rights set out in the treaties. They do not replace or circumscribe rights in the treaties.

The principal relevant Directive is Directive 2004/38/EC, often referred to in shorthand as “the Citizens’ Directive”. This is “directly effective” meaning that the rights in the Directive may be directly relied on by an affected person and must be respected by the tribunals and courts of Member States.

Directive 2004/38/EC begins:

Citizenship of the Union confers on every citizen of the Union a primary and individual right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaty and to the measures adopted to give it effect.

It goes on:

The fundamental and personal right of residence in another Member State is conferred directly on Union citizens by the Treaty and is not dependent upon their having fulfilled administrative procedures.

Directive 2004/38/EC includes a “right of residence” at Article 7:

1. 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 (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 (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 – 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).

The Home Office position is that the “right of residence” is ONLY conferred where the qualifying criteria in Article 7 are satisfied. The Home Office position has serious and adverse consequences for a very large number of EU citizens resident in the UK. Essentially, the Home Office position is that any EU citizen physically present in the UK for longer than three months who does not have an Article 7 right of residence (or permanent residence) is living unlawfully in the UK.

There is a very strong argument that the Home Office position is incorrect, however. The language of Article 7 is not exhaustive in nature and entirely ignoring TFEU Article 21 seems very peculiar, particularly given that in Zambrano and other cases the Court of Justice has confirmed that Article 21 confers a direct right to reside.

3. Domestic laws of the United Kingdom

The main Acts of Parliament are the Immigration Act 1988 and the European Community Act 1972. The former provides that

A person shall not … 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 EU right or of any provision made under section 2(2) of the European Communities Act 1972.

The key relevant provision made under the ECA 1972 is the Immigration (European Economic Area) Regulations 2016. These came into force on 1 February 2017 and replaced similar regulations dating from 2006, which in turn replaced regulations dating from 2000.

The Immigration (EEA) Regulations 2016 are supposed to transpose EU law into domestic law. They are followed and applied by immigration officials. However, where a court or tribunal decides that the regulations do not faithfully transpose EU law, EU law must be upheld anyway and applied directly.

What is the “right of residence”?

When the precise words “right of residence” are used, this will usually be interpreted as a reference to the “right of residence” set out in Article 7 of Directive 2004/38/EC. This states that a worker, self employed person, self sufficient person with comprehensive sickness insurance or student with comprehensive sickness insurance has a right of residence.

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However, TFEU Articles 20 and 21 also states that all EU citizens have a right to reside and move freely around the EU. This is also on the face of it a “right to reside”.

The usual analysis for explaining the co-existence of these provisions is that TFEU Articles 20 and 21 confers a right on an EU citizen to be physically present in any Member State and to physically remain in the territory of any Member State. There is no time limit on this right to reside.

The “right of residence” in Directive 2004/38/EC is an enhanced right to be joined by family members and access welfare benefits amongst other things.

This interpretation is consistent with Court of Justice case law such as Zambrano C‑34/09. In that case the Court held that TFEU Article 20 does not confer a general right to be joined by family members other than where the genuine enjoyment of the rights of Union citizenship is at stake.

The Home Office analysis seems essentially to be that TFEU Article 21 adds nothing to Directive 2004/38/EC. To put it another way, the Article 21 right to reside is entirely expressed and contained in Directive 2004/38/EC. However, the Home Office does recognise some additional categories of EU rights of residence, for example in what are often referred to as Surinder Singh cases and Zambrano cases. The Home Office does not accept that there is any wider principle or right of residence established by TFEU Article 21.

What is the Home Office position on the right of reside?

The Home Office has gradually over the last 10 to 15 years adopted the position that Article 21 TFEU does not confer any right to reside in the UK on EU citizens; only Directive 2004/38/EC confers any right of residence in EU law. This is surprising but it has become increasingly clear in different contexts.

Written Parliamentary answers

In recent answers to written questions in Parliament, the Home Office has confirmed that in its view EU citizens can only remain in the UK if they meet the requirements of the Immigration (European Economic Area) Regulations 2016. For a self sufficient person or student this means possessing comprehensive health insurance.

See Free Movement of People : Written question – 63253 answered on 20 February 2017:

EU nationals may enter the UK and reside for up to three months from the date of entry, provided that they do not become a burden on the social assistance system in the UK. EU nationals wishing to stay beyond three months can only do so where they are exercising a Treaty right. Exercising Treaty rights in this context means they must be working, self-employed, self-sufficient or a student, or the family member of an EU national who is exercising a Treaty right. These requirements are set out in Directive 2004/38/EC (often referred to as ‘the Free Movement Directive’). This EU Directive applies to all EU Member States. The Directive is currently implemented in the UK through the Immigration (European Economic Area) Regulations 2016.

Emphasis is added. See also Free Movement of People : Written question – HL5522 answered on 28 February 2017.

Acquisition of British nationality for children of EU citizens

For several years the Home Office has taken the view that an EU citizen resident in the UK without permanent residence is not “settled” or free of immigration time restrictions for the purpose of the British Nationality Act 1981.

Section 1(1) of the British Nationality Act 1983 provides:

A person born in the United Kingdom after commencement, or in a qualifying territory on or after the appointed day, shall be a British citizen if at the time of the birth his father or mother is— (a) a British citizen; or (b) settled in the United Kingdom or that territory.

The Home Office position is that an EU citizen must possess permanent residence in order to be considered “settled.” This means that the Home Office believes a child born in the UK to an EU citizen parent is not born British unless the EU citizen has permanent residence. This has never to my knowledge been tested in court.

Where a child is born in the UK and one of the parents is a British citizen then the child is born British, however, so the children of a British-EU couple will be born British.

Removals and revocations of EU citizens

In a newly updated policy document entitled Removals and revocations of EEA nationals, the Home Office makes plain that a person with no right of residence under Directive 2004/38/EC can (and perhaps should) be removed from the UK. Such a person would be considered and any appeal would have to be from outside the UK after departure.

The document states:

Examples of where a person may cease to have a right to reside are: – EEA nationals without a permanent right of residence who cease to be a qualified person because, for example they are no longer working in the UK – EEA nationals who have had their EEA nationality renounced or revoked – family members of EEA nationals who have divorced their spouse and have not retained a right of residence The regulations enable enforcement officers to take enforcement action against those EEA nationals without a permanent right of residence who are not exercising Treaty rights. Such that they cannot be considered a ‘qualified person’ and do not benefit from the right to reside in the UK. Such individuals who are not in the UK lawfully should be treated as if they were a person to whom section 10 of the Immigration and Asylum Act 1999 applies.

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Section 10 IAA 1999 is entitled “Removal of persons unlawfully in the United Kingdom.” It applies to a person who “requires leave to enter or remain in the United Kingdom but does not have it.” If TFEU Article 21 were an enforceable Community right then section 7 of the Immigration Act 1988 would mean that the person does not need leave to enter or remain (see above).

The logic of the Home Office position is that an EEA citizen who is not a “qualified person” (worker, self employed, self sufficient with comprehensive sickness insurance, student with comprehensive sickness insurance) or with permanent residence then the person is unlawfully resident.

Example Anna is an EU national. She entered the UK in 1995 to live with her British husband. She has lived in the UK since then but has never been a qualified person because she has never held comprehensive sickness insurance, at least in the view of the Home Office. She has also therefore never acquired permanent residence. Anna is considered by the Home Office to have no right of residence and to be living in the UK in breach of immigration laws. If Anna leaves the UK, for example on holiday, when she re-enters she may be committing a criminal offence under section 24 of the Immigration Act 1971. The Home Office could take enforcement action against her at any time to remove her and she would only be able to appeal from abroad. If she applies for naturalisation as a British citizen she will be refused because she does not have permanent residence. Even if she now becomes a qualified person, for example by purchasing comprehensive sickness insurance, because of what the Home Office considers to be her unlawful residence in the UK, she would be barred from naturalising as a British citizen for at least 10 years because she would not pass the Home Office’s good character test.

The Home Office position has serious consequences if it is enforced.

Allegations of “misuse of rights of residence”

In a newly updated Home Office policy document entitled “European Economic Area nationals: misuse of rights and verification of EEA rights of residence” the Home Office adopts the stance that the “right of residence” can be abused by an EU citizen repeatedly entering and leaving the UK:

There are instances where EEA nationals may seek to misuse, their initial right of residence by leaving the UK shortly before the 3 month period expires, and then re- entering the UK and benefitting from another 3 month’s initial right of residence. When repeated, this behaviour means the EEA national can reside in the UK indefinitely, without ever exercising free movement rights. Such actions are against the principles of the Free Movement of Persons Directive 2004/38/EC (the Directive) and are considered a misuse of a right to reside.

If Articles 20 and 21 confers a more general right to reside, this Home Office position would make no sense at all.

Meaning of “In breach of immigration laws”

The latest version of Home Office policy document “European Economic Area (EEA) and Swiss nationals: free movement rights” makes plain the Home Office position on rights of residence in several passages. This is one of the key policy documents for Home Office officials dealing with EU law applications.

The final section of the document is on EEA free movement rights: breach of the immigration laws and begins on page 24. The purpose of the section is to describe when a person would or would not be considered to be in breach of immigration laws for the purpose of naturalisation as a British citizen.

For example on page 24:

If an EEA national remains in the UK without a right of residence and without leave under the Immigration Act then they will be subject to restrictions on the period for which they can remain in the UK. A person will be in breach of the immigration laws under section 11 of the Nationality, Immigration and Asylum Act 2002 at any time when they: – require permission to be in the UK – do not have such permission The provision is deemed always to have had effect, except in relation to persons who had rights of residence in the UK under European Union Community law either: – on 7 November 2002 – at any time following their most recent arrival in the UK before that date Where either of the above applies, the person should only be regarded as having remained in breach of the immigration laws before 7 November 2002 if the individual was then in the UK in breach of a deportation or removal order.

Page 25 then sets out examples of how this provision is considered by the Home Office to work in practice:

This page provides example scenarios on when a European Economic Area (EEA) national is considered in breach of the immigration laws for the purposes of the British Nationality Act 1981 (BNA 1981). Scenario 1 Paolo, an Italian citizen, came to the UK for employment in 1997. He voluntarily left work on 1 December 2000. No deportation or removal order was made against him, and he has remained without any right of residence under community law, and without leave, ever since. Paolo has been in the UK in breach of the immigration laws only since 7 November 2002, when section 11 of the Nationality, Immigration and Asylum Act 2002 came into force. His residence here between 1 December 2000 and 6 November 2002, although unauthorised, should not be regarded as a breach. Scenario 2 Sabine, a French citizen, enrolled as a student in October 1990. Her course ended in June 1993. She then remained in the UK without leave and without any entitlement under community law. No deportation or removal order was made against her. In 1996 she commenced employment, and this has continued to the present day. Sabine should not be treated as having been in the UK in breach of the immigration laws at any time. Scenario 3 Colette, a Belgian citizen, came to the UK for a holiday in August 2003 but then remained without permission or entitlement under community law. Any residence in the UK after her entitlement under community law came to an end was residence in breach of the immigration laws.

Scenario 3 is the most worrying of these examples. The situation of Collette is essentially the situation of many EU citizen spouses of British citizens.

The document clearly assumes that the “right of residence” is that contained in Article 7 of Directive 2004/38/EC, not that in TFEU Article 21. Otherwise in all three examples the EU citizen would not be in any danger of being resident in breach of immigration laws in the first place.

Why is the Home Office doing this?

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The Home Office has hardened its position to restrict rights of residence of EU citizens. This has been a trend for some time and it considerably pre-dates Brexit. The new Immigration (European Economic Area) Regulations 2016 were laid before Parliament on 3 November 2016 and it seems likely that work had commenced on these some time before 23 June 2016. It may be the case that civil servants and Ministers have not appreciated that the changes introduced will affect a wide group of EU citizens resident in the UK and already fearful for their future.

Discriminatory and selective approach to enforcement

It seems likely that these changes are aimed at EU citizens the Home Office considered “undesirable”, such as the street homeless who are not having recourse to public funds. However, the hardened position potentially affects any EU citizen who does not have a right of residence or permanent residence under Directive 2004/38/EC.

If the changes in approach introduced by the Home Office are applied selectively then there is a clear risk of discriminatory treatment of some individuals.

It may well be that the Home Office has no plans to enforce removals of white, middle class EU citizens who are married to British citizens and have British children in the UK. A Roma person from an Accession state who has no fixed home address may not be so fortunate, despite being in the same position under EU law.

Total abolition of EU free movement law even for existing EU residents

Another possibility is that the Home Office is seeking to reduce the apparent value of EU law protections for EU residents of the United Kingdom with a view to completely abolishing EU free movement law even for existing residents when Brexit occurs. Instead, EU citizens would be offered a domestic UK law immigration status such as ILR.

If this were to occur, EU residents would lose pension, family reunion, non discrimination, protection against deportation and other rights in EU law. EU residents would be entirely at the mercy of UK politicians obsessed with sounding tough on immigration and would have no recourse to the Court of Justice of the European Union to protect their rights.

It would be far preferable for EU law to be properly respected by the UK — for access to the NHS to be treated as comprehensive sickness insurance and Articles 20 and 21 of the Treaty on the Functioning of the European Union to be properly respected — and for those free movement rights of existing EU residents to be preserved along with continued access to the Court of Justice of the European Union for this limited group when Brexit occurs, as recommended by the excellent House of Lords Justice Committee report on acquired rights.