FOI 35020 – Annex 4
From:
Free Movement Operational Policy Team
Subject:
New and Updated Modernised Guidance
Date:
26 February 2015
Issue number:
03/2015 (revised)
Purpose of notice
1. This notice provides information on the new and updated EEA
Modernised Guidance which has been published on
Horizon1 and
externally
on Gov.uk.
Background
2. The Free Movement Operational Policy Team has undertaken a
substantive review of all EEA guidance with the objective of making the
guidance current, focused and more user-friendly.
3. This guidance takes into account any changes to the Regulations up to
and including November 2014. Much of the information is from the current
published European Casework Instructions (ECIs) and Immigration
Directorate’s Instructions (IDIs) but has been clarified or expanded upon
where necessary.
4. Further amendments will be made to this guidance to coincide with the
introduction of a requirement for non-EEA nationals applying for European
documentation to provide biometric information as part of the application
process. This is currently planned to be introduced in March 2015.
5. Any guidance or information superseded by this new or updated
modernised guidance will be archived in the usual way.
Details of guidance published
6. The new modernised guidance provides up to date and detailed
consideration for all decision-makers assessing rights of residence for
EEA nationals and their family members. The guidance is arranged
according to the route in which the person is applying (i.e. as a direct
family member) as opposed to the document being issued (i.e. a
residence card). This reflects recent changes made to the application
forms (see EOPN 02/2015) and guides both the caseworker and customer
more effectively through the consideration process. A list of the revised
sections of the guidance is provided below:
1 Note: links to the Home Office staff intranet (‘Horizon’) have been removed, since these are not
accessible outside of the Home Office. You can view the public version of the same guidance via the
following link
: https://www.gov.uk/government/collections/eea-swiss-nationals-and-ec-association-
agreements-modernised-guidance
FOI 35020 – Annex 4
EEA and Swiss nationals: Free movement rights
EEA nationals qualified persons
Direct family members of EEA nationals
Extended family members of EEA nationals
Family members of EEA nationals who have retained the right of
residence
Derivative rights of residence
EEA case law and appeals
Abuse of rights, fraud and verification of EEA rights of residence
Removals and revocations of EEA nationals
Processes and procedures for EEA documentation applications
7. Decision-makers should familiarise themselves with all sections of the
guidance, but for ease of reference we have highlighted the following
sections which are of particular importance:
EEA nationals qualified persons
Pages 8-9 of this guidance provide further information to decision-makers
on assessing rights of residence for jobseekers following changes which
came into effect in July 2014.
Page 12 provides information on the most recent HMRC Primary Earnings
Threshold (PET). This is the point at which employees must pay class 1
National Insurance contributions and can be used to assess whether any
employment is genuine and effective.
Derivative rights of residence
This section provides more detailed guidance on assessing the rights of a
primary carer to enter and reside in the UK in order to facilitate the rights
of another Union citizen. This includes
Zambrano,
Chen and
Ibrahim/Teixeira cases.
EEA case law and appeals
This chapter provides an overview of relevant judgments from the Court of
Justice of the European Union (ECJ), including:
Page 29 outlines the recent judgments in the cases of
MG and
NO which
consider the impact of time in prison on a person’s residence in the UK
and on calculating the ten year continuous residence threshold for
imperative public security purposes.
Page 13 sets out the ECJ judgment in
O and S which considered further
the scope of the rights of family members to enter and reside in the UK
with their British citizen family member (
Surinder Singh).
FOI 35020 – Annex 4
This chapter also sets out detail on a number of recent domestic cases in
the UK Courts such as:
Page 56 outlines the Court of Appeal judgment in
W and X (China) which
stated that the NHS cannot be relied upon in lieu of comprehensive
medical insurance.
Page 39 provides information on the Upper Tier Tribunal case of
Shabani
which ruled that a jobseeker finding employment then becoming a ‘second
time’ jobseeker can potentially fall within regulation 6(4). The judgment
further ruled that the primary carer of a child in reception class may be
entitled to a derivative right of residence.
8. Masterclass sessions on the modernised guidance will be available for all
decision-makers who require it over the next few weeks. If specific
training is required on any section in particular, please email the Free
Movement Operational Policy Team mailbox at the following address in
the first instance
: xxxxxxxxxxxxxxxxxxx@xxxxxxxxxx.xxx.xxx.xx
<Redacted – s. 40(2)> Head of Free Movement Operational Policy Team
26 February 2015