The Immigration (European Economic Area) (Amendment) Regulations 2012, SCHEDULE 3 Transitional Provisions

Response to this request is long overdue. By law, under all circumstances, Home Office should have responded by now (details). You can complain by requesting an internal review.

Dear Home Office,

How many British persons who fulfil the criteria outlined in the Schedule 3 Transitional Provisions will continue to be considered EEA nationals?

How many are provided with derivative residence cards, instead of residence cards?

The Immigration (European Economic Area) (Amendment) Regulations 2012, SCHEDULE 3 Transitional Provisions state

Amendments to the definition of EEA national

2. (1) Where the right of a family member (“F”) to be admitted to, or reside in, the United Kingdom pursuant to the 2006 Regulations depends on the fact that a person (“P”) is an EEA national, P will, notwithstanding the effect of paragraph 1(d) of Schedule 1 to these Regulations, continue to be regarded as an EEA national for the purpose of the 2006 Regulations where the criteria in subparagraphs (2), (3) or (4) are met and for as long as they remain satisfied in accordance with subparagraph (5).

(2) The criterion in this subparagraph is met where F was on 16th July 2012 a person with a permanent right to reside in the United Kingdom under the 2006 Regulations.

(3) The criteria in this subparagraph are met where F—

(a)was on the 16th July 2012 a person with a right to reside in the United Kingdom under the 2006 Regulations; and
(b)on the 16th October 2012—
(i)held a valid registration certificate or residence card issued under the 2006 Regulations;
(ii)had made an application under the 2006 Regulations for a registration certificate or residence card which had not been determined; or
(iii)had made an application under the 2006 Regulations for a registration certificate or residence card which had been refused and in respect of which an appeal under regulation 26 could be brought while the appellant is in the United Kingdom (excluding the possibility of an appeal out of time with permission) or was pending (within the meaning of section 104 of the Nationality, Immigration and Asylum Act 2002(1)).
(4) The criteria in this subparagraph are met where F—

(a)had, prior to the 16th July 2012, applied for an EEA family permit pursuant to regulation 12 of the 2006 Regulations; or
(b)has applied for and been refused an EEA family permit and where, on the 16th July 2012, an appeal under regulation 26 against that decision could be brought (excluding the possibility of an appeal out of time with permission) or was pending (within the meaning of section 104 of the 2002 Act).
(5) Where met, the criteria in subparagraph (2), (3) and (4) remain satisfied until the occurrence of the earliest of the following events—

(a)the date six months after an EEA family permit has been issued if F has not within that period been admitted to the United Kingdom;
(b)the date on which an appeal against a decision referred to in subparagraph (3)(b)(iii) or (4)(b) can no longer be brought (ignoring the possibility of an appeal out of time with permission) where no such appeal has been brought;
(c)the date on which any appeal against a decision referred to in subparagraph (3)(b)(iii) or (4)(b) is finally determined, is withdrawn or is abandoned (within the meaning of section 104 of the 2002 Act) (save where the outcome of the appeal process is that the document in question falls to be granted);
(d)the date on which F ceases to be the family member of an EEA national; or
(e)the date on which a right of permanent residence under regulation 15 of the 2006 Regulations is lost in accordance with regulation 15(2) of those Regulations.
(6) P will only continue to be regarded as an EEA national for the purpose of considering the position of F under the 2006 Regulations.

Yours faithfully,

Brown

FOI Requests, Home Office

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R.Brown left an annotation ()

Further guidance:

Regulation 8 of the 2006 Regulations covers extended family members (for example,
brothers, sisters, aunts and cousins). It also covers direct family members (such as
parents or children over the age of 21) who have failed to provide evidence of financial
dependency.

An applicant may be considered under regulation 8 of the 2006 Regulations if s/he falls
within any of the following conditions (see overleaf):

Was living as part of the EEA national‟s household in an EEA state before
the EEA national came to the United Kingdom¹; or
Is living as part of the EEA national‟s household in the United Kingdom; or
Has joined the EEA national in the UK and continues to be dependent on
the EEA national or his/her spouse (see section 2.3.2); or
Strictly requires personal care from the EEA national on serious health
grounds; or
Can prove that s/he is in a durable relationship with the EEA national²

¹Note: there is no dependency test for persons who can show that they have lived under the same roof as
the EEA national before coming to the UK.

²EC law now recognises “durable relationships”. For this reason an applicant may also be considered
under regulation 8 if s/he:

Is the EEA national‟s partner (other than a civil partner) and can show the decision maker that
s/he is in a durable relationship with the EEA national.

For guidance on how to assess if a relationship is durable, see Chapter 5 of the ECIs..

Directive 2004/38 refers to facilitating the entry and residence of any member of the
family who meets any of the above conditions. Providing that a person falls within one
of these categories, we may issue a residence card if in all the circumstances it appears
appropriate to do so. The Directive states:

“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”

When deciding whether it is appropriate in all the circumstances to issue a residence
card, we must assess whether refusing the family member would deter the EEA
national from exercising his/her Treaty rights or would create an effective obstacle to
exercise of Treaty rights. Each case must be assessed on an individual basis but an
example of where it might be appropriate to issue a residence card would be if the
family member was very elderly or incapacitated. In assessing such cases, it would be
important to consider whether there were any relatives to care for him/her in the home
country.

For guidance on assessing if extended family members can be issued with a document
confirming their right of residence, see Chapter 5 of the ECIs.

Freedom Of Information Team ( IND ), Home Office

Dear R Brown

Thank you for your recent e mail concerning the above matter. We are dealing with your enquiry and will respond in due course.

Regards

Information Management Services (IMS),
Corporate Services
Home Office
12th Floor Lunar House, 40 Wellesley Road, Croydon CR9 2BY
www.gov.uk/home-office

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NW Region FOI, Home Office

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Please find attached a response to your enquiry made under the Freedom of
Information Act 2000.

 

Kind Regards

 

NW FOI Team

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Dear Home Office,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Home Office's handling of my FOI request 'The Immigration (European Economic Area) (Amendment) Regulations 2012, SCHEDULE 3 Transitional Provisions'.

You refused to answer every question. I doubt each question cost more than £600. I think you just don't want to answer.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/t...

Yours faithfully,

R.Brown

FOI Requests, Home Office

Thank you for contacting the FOI Requests mailbox.

Your message has been logged and will be dealt with shortly.

We aim to provide a response to all FOI requests within 20 working days.

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query please ensure you have left any file references and contact details.

 

Thank you.

 

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Wayne Pearsall left an annotation ()

The Home Office dislike giving straight answers....

R.Brown left an annotation ()

People who should qualify for residence cards are being "pushed" in to derivative residence cards.

It isn't even lawful for them to have a derivative residence category as it discriminates against one particular class of family member; i.e., parents.

For example, the cousin of an EEA national can qualify for a residence card as an other family member and access all the rights of a British national. The parent of an EEA national is barred from doing so, simply because they are parents.

Family Barristers and Solicitors argued discrimination on the wrong grounds, which is why they failed in court. They argue that the derivative card is discriminatory based on nationality, but the UK can discriminate on nationality (even if it is mean).

Wayne Pearsall left an annotation ()

It's a hard case to argue... we are still awaiting my wifes leave to remain to be issued by the home office following 'kicking their arses' in court ;)

but I absolutely agree. Its disgusting the way that british citizens are unfairly discriminated against... we need fair family immigration policies... heck, ireland and many other countries do not charge to process citizens applications...

disgusting that the uk do...

FOI Responses, Home Office

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R Brown

Please find attached a response to your request for an internal review

 

 

Diana Pottinger

Information Access Team

Information Management Services

Corporate Services

Ground Floor Seacole

2 Marsham Street

London

SW1P 4DW

 

 

Please note that any futher correspondence should be sent to 
[1][Home Office request email]  not FOI responses.

 

 

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