Overly thinking and excessively analysing EEA law probably results in Upper Tribunal decisions such as Kareem  UKUT 24 and TA  UKUT 316 (IAC) (and of course, arguably Sala).
It is now evident, following on from the very recent Court of Appeal decision of Awuku v Secretary of State for the Home Department  EWCA Civ 178, that directly as a result of Kareem, those non – EEA nationals who had conducted proxy marriages with UK resident treaty exercising EEA nationals, were most likely denied the benefit of rights due to them as family members. This is because for a period of 3 years, following this Upper Tribunal decision, such affected persons would have had their applications and appeals negatively decided when they should not have been.
The Home Office must have realised that their previous August 2016 Policy Notes could be readily rubbished at appeal as they have now replaced most of those and published further Notes on the security and humanitarian situation in Iraq:Country policy and information note: Security and humanitarian situation, Iraq, March 2017
Prior to 9 March 2017, the general view certainly was that, Home Office practice (subject to some exceptions), was to routinely grant settlement to refugees who had completed the 5year probationary period. On 9 March 2017, the Home Office however published updated Guidance, Refugee Leave dated 2 March 2017, firmly indicating that, “All those who apply for settlement protection after completing the appropriate probationary period of limited leave will be subject to a safe return review with reference to the country situation at the date the application is considered”.
Not only that but that refugees can be subject to the review procedure at any juncture whilst holding refugee status, “ A person’s case may also be reviewed at any point in the process either when triggered by their actions, for example, they are convicted of a serious crime, or in light of a significant and non-temporary change in conditions in their country of origin such that they no longer need protection”.
Just when we thought we had seen the back of the 2006 EEA Regulations, it appears that the Court of Appeal is not quite yet done with their interpretation: the Court of Appeal is still having to grapple with arguments put forward that the UK Government did not correctly implement the parent Citizen’s Directive via the 2006 Regulations.
On 1 February 2017, the EEA Regulations 2006 were revoked and replaced by the EEA Regulations 2016.
The Home Office position is this: “EEA Regulations 2016 in large part consolidate and clarify the provisions, modernise the language used and simplify terms where possible in line with current drafting practice. The EEA Regulations 2016 reflect the margin of appreciation enjoyed by member states to determine their own requirements of public policy and public security, for their own purposes, from time to time. They also make a number of substantive changes, including in respect of public policy and public security decisions”.
The effect and impact of these sweeping new changes upon EEA nationals and their family members, is that they are highly liable to removal, expulsion or deportation: not only for failure to exercise treaty rights in the UK, but also for engaging in certain types of behaviour. The reach of the new regulations is such that even those with impending prosecutions as well as those who have not committed any crime may be caught by the new changes, purely on the basis of decisions which can be taken on preventative grounds.