The New 2016 EEA Regulations: Fertile Ground for Removal, Expulsion and Deportation of EEA Nationals and their Family Members

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”.

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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.

The EEA Regulations 2016 introduce a range of deportation orders, ranging from indefinite deportation orders to time-limited deportation orders.

 

The changes to the public policy and public security provisions of the 2106 EEA Regulations  require individuals to be removed under a time-limited deportation order (under public policy) rather than through an administrative removal if they:

 

  • have entered into, attempted to enter into, or assisted another person to (attempt to) enter into a marriage of convenience

  • have fraudulently obtained an EEA right to reside

There has therefore been a removal of sham marriage as an administrative removal category.

 

Unlike a decision to deport under Regulation 23(6)(b), a person who is administratively removed from the UK is not subject to a fixed bar on re-entry.

 

The regulations further clarify  issues of proportionality and vulnerability in relation to rough sleepers.

 

The various EEA removal pathways have also been classified  broadly  as follows;

 

  • Regulation 23(6)(a):Does not or ceases to have a right to reside

  • Regulation 23(6)(b) :Public policy, public security or public health

  • Regulation 23(6)(c): Misuse of a right to reside

  • Regulation 32(4): Entry in breach of a deportation or exclusion order

 

In addition to the EEA administrative removal criteria, certain types of behaviour considered contrary to the fundamental interests of society (as set out in schedule 1 to the EEA Regulations 2016) may mean the EEA national is more suited to removal under a time-limited deportation order on the grounds of public policy (regulation 27) rather than through an administrative removal.

 

The EEA Regulations 2016 require the courts or tribunals to take into account these interests when considering, for example, an EEA national’s appeal against a deportation decision.

 

Main subject headings to be addressed below:

 

    • The right of residence for EEA nationals and their family members

    • The right of residence and comprehensive sickness insurance

    • Removal pathways

    • Administrative Removal

    • Revocation of documentation

    • EEA marriages of convenience: administrative removal or public policy decision ?

    • Removal: Sham marriages and marriages of convenience

    • Time-limited deportation ( under public policy)

 

(1)THE RIGHT OF RESIDENCE FOR EEA NATIONALS AND THEIR FAMILY MEMBERS

 

Initial right to reside- resident less than 3 months:

 

An EEA national has an initial right of residence for 3 months beginning on the date on which they were admitted to the UK (regulation 13).

 

During this 3 month period, an EEA national must not become an unreasonable burden on the social assistance system of the UK. There are no other conditions or restrictions placed upon them (other than the requirement to have a valid passport or ID card). If an EEA national wishes to remain beyond this initial 3 month period, they must show they are exercising Treaty rights in the UK.

 

However, an EEA national can be removed from the UK during their initial 3 month period of residence on the grounds of a misuse of a right to reside.

 

EEA extended right to reside – resident between 3 months and 5 years:

 

Beyond the initial 3 month period, an EEA national is entitled to remain in the UK as a qualified person through exercising a Treaty right.

 

An individual may lose their right to reside and be subject to administrative removal if they cease to exercise a Treaty right.

 

The term ‘Treaty right’ refers to the following categories:

 

  • jobseeker

  • worker

  • self-employed person

  • student

  • self-sufficient person

 

The family member of an EEA national may lose their entitlement to an extended right to reside in the UK, and be subject to administrative removal, if the EEA national ceases to exercise a Treaty right or if the individual ceases to be a family member of the EEA national.

 

EEA permanent right to reside – resident over 5 years:

 

The EEA Regulations set out that after a period of 5 years of continuous lawful residence in the UK (in accordance with EEA Regulations that were in force during that 5 year period), an EEA national, or a family member of an EEA national, who is in the UK acquires a right of permanent residence that does not require them to be exercising a Treaty right. This right can only be lost through an absence from the UK of more than 2 consecutive years.

 

Retained right to reside:

 

There are a number of circumstances, as set out in regulation 10, in which non-EEA national family members of EEA nationals may retain their right of residence in the UK if the EEA national leaves the UK, dies, or the relevant marriage or civil partnership is terminated.

 

Time spent in prison and continuity of Residence:

 

Regulation 3 of the EEA Regulations 2016 gives effect to the Court of Justice of the European Union (ECJ) judgments in Onuekwere (Judgment of the Court) [2014] EUECJ C-378/12 and Secretary of State for the Home Department v MG (Judgment of the Court) [2014] EUECJ C-400/12 to clarify that continuity of residence is broken when a person serves a sentence of imprisonment.

 

Time spent in prison or a young offenders institute does not count as legal residence and interrupts continuity of residence for the purpose of acquiring a right of permanent residence under the EEA Regulations 2016 for an EEA national or their family member.

 

A period of imprisonment is also in principle capable of interrupting continuity of residence when assessing whether an EEA national or their family member has accrued 10 years’ residence in accordance with the EEA Regulations 2016. When assessing whether any previous integrating links with the UK have been broken by time in prison, Home Office decision makers  may take into account the time spent in the UK prior to imprisonment.

 

When calculating continuity of residence, Home Office decision makers  must count backwards from the date of decision.

 

(2)THE RIGHT OF RESIDENCE AND COMPREHENSIVE SICKNESS INSURANCE

 

Applicants who must have comprehensive sickness insurance(CSI):

 

Regulation 4(1)(c)(ii) and (d)(ii) of the Immigration EEA Regulations 2016 states that nationals living in the UK as self sufficient people or students must have CSI.

 

Regulation 4(2) of the regulations states that CSI must also cover the family members of self-sufficient persons. From 6 April 2015 (implemented in practice from 22 June 2015), this also applies to the family members of students.

 

Following the changes to the EEA Regulations 2016, regulation 4(4) has been amended to include dependent children of primary carers as well as primary carers for the purposes of regulation 16(2). This means that there is a requirement for all family members, who are dependent on that child for a right of residence, to hold CSI.

 

Family members of British citizens under regulation 9 must have CSI if the British citizen intends to be economically inactive in the UK on their return. As British citizens have free access to the NHS they would not be required to hold CSI.

 

If the following persons do not provide evidence of CSI, the Home Office decision maker  must refuse the application:

 

  • a self sufficient person or any of their family members

  • a student or any of their family members

  • family members dependent on a child under regulation 16(2) (Chen)

  • family members of British citizens where the British citizen is economically inactive

 

Before the decision maker refuses the application,  they  must consider if:

 

  • transitional arrangements apply where the application is for permanent residence and the EEA national has been issued with a registration certificate as a student before 20 June 2011

  • arrangements apply where the CSI is required for the family members of students following changes to the regulations on 6 April 2015

 

Comprehensive sickness insurance:

 

The decision maker can accept an EEA national or their family member as having CSI if they hold any form of insurance that will cover the costs of the majority of medical treatment they may receive in the UK.

 

The decision maker must take a proportionate approach when  they  consider if an insurance policy is comprehensive. For example, a policy may contain certain exemptions but if the policy covers the applicant for medical treatment in the majority of circumstances the decision maker  can accept it.

 

The definition of CSI does not include:

 

  • cash back health schemes, such as dental, optical,prescription charges

  • travel insurance policies

  • access to the UK’s NHS

For applications for a registration certificate or a residence card:

 

Applicants must provide one of the following documents to show they have CSI:

 

  • a comprehensive private medical insurance policy document

  • a valid European Health Insurance Card (EHIC) issued by an EEA member state other than the UK (for people temporarily in the UK)

  • form S1

  • form S2

  • form S3

 

For applications for a document certifying permanent residence or a permanent residence card:

 

They must provide one of the following documents or a combination of these documents covering their 5 continuous year’s residence in the UK:

 

  • a comprehensive private medical insurance policy document

  • a valid European Health Insurance Card (EHIC) issued by an EEA member state other than the UK (or its predecessor form E111)

  • form S1 (or its predecessor forms E109 or E121)

  • form S2 (or its predecessor form E112)

  • form S3

 

(3)REMOVAL PATHWAYS

 

  • Regulation 23(6)(a):Does not or ceases to have a right to reside

  • Regulation 23(6)(b) :Public policy, public security or public health

  • Regulation 23(6)(c): Misuse of a right to reside

  • Regulation 32(4): Entry in breach of a deportation or exclusion order

 

(4)ADMINSTRATIVE REMOVAL

 

EEA administrative removal:

 

The EEA administrative removal criteria falls into 2 main categories under:

 

  • EEA Regulation 23(6)(a): no right to reside

  • EEA Regulation 23(6)(c): misuse of a right to reside

 

An EEA national or their family member (or any person with a derivative right of residence) can therefore be administratively removed from the UK for the following reasons:

 

  • they never had or stopped having a right to reside under the regulations (regulation 23(6)(a))

  • their removal from the UK is justified on the grounds of the misuse of a right to reside (regulation 23(6)(c))

 

Unlike a decision to deport (under 23(6)(b), a person who is administratively removed from the UK is not subject to a fixed bar on re-entry.

 

However, in line with regulation 26(4), where a person has been administratively removed from the UK, and they seek to re-enter within 12 months of that removal, they must show they are exercising Treaty rights immediately upon re-entry.

 

Ceased to have a right to reside:

 

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 can be removed from the UK.

 

EEA nationals who have had their EEA nationality renounced or revoked can be removed from the UK.

 

Family members of EEA nationals who have divorced their spouse and have not retained a right of residence can be removed from the UK.

 

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.

 

Removals under regulation 23(6)(a) must meet one of the following criteria, either:

 

the person must:

 

-not yet have acquired a right of permanent residence

-have no rights to reside on any other basis

-be failing to exercise a Treaty right or they are the family member of an EEA national who is failing to exercise a Treaty right

-have been resident in the UK for longer than 3 months if they are an EEA national (this does not apply to EEA family members)

.there is evidence that the person never had a right to reside under the EEA Regulations (for example through a sham marriage)

 

In all cases, it must also be proportionate to proceed with a removal given all the circumstances of the case.

 

Regulation 23(6)(a) applies as if the individual were someone to whom section 10(1)(a) of the 1999 Act applies (EEA Regulation 32(2) refers).

 

Never had a right to reside:

 

A person can also have a document revoked and be removed from the UK if they never had a right to reside. This is intended to deal with situations where a document is wrongly issued (whether due to mistake or abuse).

 

Decisions to remove on the basis that a person never had or ceased to have a right to reside, will lead to an administrative removal. The person will be treated as if they were someone to whom section 10(1)(a) of the 1999 Act applied (regulation 32(2) refers).

 

A decision to remove taken under regulation 23(6)(a) treats the person as if they were a person to whom section 10(1)(a) of the 1999 Act applied should not to be confused with a decision taken solely under UK immigration legislation that the person is to be removed under section 10. Decisions which can be taken under UK immigration legislation only and not under the regulations are where a non-EEA national has not previously been engaged with or recognised by the EEA regime.

 

Regulation 23(6)(c) may be used where there are reasonable grounds to suspect a misuse of a right to reside under the EEA Regulations.

 

Removals under regulation 23(6)(c) must meet at least one of the following criteria, they:

 

  • have engaged in conduct which appears to be intended to circumvent the requirement to be a qualified person

  • are sleeping rough

  • have attempted to enter the UK within 12 months of being removed under regulation 23(6)(a), and are unable to provide evidence that upon re-entry, the conditions for any right to reside, other than the initial right of residence, are met

 

All 23(6)(c) removals must also be seen as proportionate taking into account all the circumstances of the case.

 

This regulation may apply even if the EEA national has been in the UK for less than 3 months, or is otherwise exercising Treaty rights.

 

An appeal against removal under regulation 23(6) (with the exception of a decision taken on the grounds of public policy, public security or public health under 23(6)(b)) will suspend removal.

 

Misuse of a right to reside:

 

Regulation 26 of the regulations came into effect on 1 February 2017. This allows the Secretary of State to make an EEA decision where there are reasonable grounds to suspect the misuse of a right to reside and it is proportionate to do so given all the circumstances of the case.

 

Regulation 26 sets out that a misuse of a right to reside includes:

 

  • observation of the requirements of these regulations in circumstances which do not achieve the purpose of the regulations

  • intention to obtain an advantage from these regulations by engaging in conduct which artificially creates the conditions required to satisfy the criteria set out in the regulations

 

Regulation 26 states that a Home Office decision maker  can make an EEA decision against EEA nationals who observe the requirements of the regulations in circumstances which do not achieve the purpose of the regulations. Or where they intend to obtain an advantage from these regulations by engaging in conduct which artificially creates the conditions required to satisfy the criteria set out in these regulations.

 

There must be reasonable grounds to suspect the misuse of a right to reside and the decision must be proportionate.

 

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. The Home Office approach is that 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.

 

Persons who are removed under regulation 23(6)(c) who seek to re-enter the UK within 12 months of that removal, must demonstrate they will be a qualified person upon-re-entry to the UK.

 

Regulation 26(2) sets out that a misuse of a right to reside includes attempting to enter the UK within 12 months of being administratively removed under the regulations where the person attempting to do so is unable to provide evidence that immediately upon re-entry they will be a qualified person.

 

Regulation 26(4) sets out that a person who has been administratively removed from the UK may re-enter during that 12 month period if there has been a material change in the circumstances which justified their removal.

 

If that same EEA national can show they would be a qualified person, for example because they are entering the UK to take up an offer of employment and can supply evidence of an employment contract to support this, admission must be granted.

 

In line with regulation 26(3), the Secretary of State may take an EEA decision on the grounds of a misuse of a right to reside if there are reasonable grounds to suspect the misuse of a right to reside and it is proportionate to do so.

 

Whether there are reasonable grounds will depend on the nature of the misuse of a right to reside.

 

Home Office policy states that there would be reasonable grounds to suspect a misuse of a right to reside if an EEA national is seeking to enter the UK following administrative removal and cannot show at the border that they would be a qualified person immediately upon entry.

 

If anyone has avoided border controls and is encountered in the UK, the enforcement officer must find out if they are now exercising free movement rights. If they are not, they will be liable to the administrative removal process again, even if it is less than 3 months since they re-entered the country.

 

In line with regulation 26(3), any decision taken on the grounds of a misuse of a right to reside must be proportionate.

 

When considering if a decision will be proportionate it is important to consider the:

 

  • level of misuse of a right to reside, including: -the degree the person benefitted from the misuse of rights

  • -the degree of involvement or knowledge the person had in the misuse of rights

  • -the severity of the misuse of rights

  • personal circumstances of the person

 

In all cases the impact of the individual’s misuse of rights must be balanced against the impact on the individual.

 

Personal circumstances must be taken into account when considering whether a decision is proportionate. This includes considering the person’s:

 

  • age

  • state of health

  • family ties to the UK

  • length of residence in the UK

  • social and cultural integration

 

Regulation 23(6)(c)-circumventing qualified person requirements:

 

This provision can only be used in cases of a misuse of a right to reside. That is where there is behaviour that is intended to misuse the initial 3 month right of residence in order to circumvent the requirement to exercise Treaty rights. For example, an EEA national who repeats a cycle of leaving the UK shortly before their 3 month period expires, only to re-enter in order to benefit from a further 3 month’s period of residence, therefore being able to reside indefinitely without exercising Treaty rights.

 

It is generally only considered to be proportionate to make a decision to remove an EEA national on these grounds, where the misuse of rights has taken place more than once.

 

Regulation 23(6)(c) – rough sleeping:

 

Rough sleeping may be a misuse of a right to reside, therefore EEA nationals or their family members encountered sleeping rough may be subject to administrative removal under regulation 23(6)(c) where it is appropriate to do so.

 

A decision to administratively remove an EEA national can be made under regulation 23(6)(c) only where it is considered proportionate.

 

The definition of rough sleeping is provided by both the Department for Communities and Local Government and the Combined Homelessness and Information Network (CHAIN). This sets out individuals are identified as rough sleepers where they are; sleeping, about to bed down (sitting on or in or standing next to their bedding) or actually bedded down, on the street or in other open spaces or locations not designed for habitation, such as doorways, stairwells, parks or derelict buildings.

 

This does not include people in hostels or shelters, people in campsites or other sites used for recreational purposes or organised protest, squatters or travellers.

 

‘Bedded down’ is taken to mean either lying down or sleeping. ‘About to bed down’ includes those who are sitting in or on or near a sleeping bag or other bedding.

 

The Home Office may consider the administrative removal of EEA nationals or their family members who are sleeping rough, even if they:

 

  • have been in the UK for less than 3 months

  • are otherwise exercising Treaty Rights

 

Individuals removed under regulation 23(6)(c) for rough sleeping will be subject to re-entry restrictions for 12 months following their removal or voluntary departure, and will attract the standard notification periods for appeal.

 

Individuals who provide evidence that they have ceased rough-sleeping will no longer be liable for removal as a rough sleeper under regulation 23(6)(c).

 

Where the Home Office encounter a rough sleeper who  they consider to be a threat to one of the fundamental interests of society as set out in schedule 1 to the EEA Regulations, they  must consider whether it is appropriate to remove them on the grounds of public policy under regulation 27.

 

Examples of behaviour that could be considered to be against the fundamental interests of society includes, but is not limited to:

 

  • a history of low-level persistent criminal offending

  • anti-social behaviour such as criminal damage

  • drug offences and offences committed to fund a drug or alcohol habit, or committed while under the influence of drugs or alcohol

  • acquisitive crime including theft and shoplifting

 

Where it is believed that  the rough sleeper may be a potential victim of trafficking, they  must referred to the National Referral Mechanism (NRM).

 

Acting proportionately- EEA administrative removal decisions:

 

Consideration must be given to ensure actions are proportionate when deciding to administratively remove an EEA national or the family member of an EEA national.

 

During the decision making process the decision maker must consider a number of factors to ensure that removal action remains proportionate in each case. They  must balance any impact arising from the individual’s misuse of rights, against the impact on the individual.

 

To do this, each case must be assessed on its individual merits considering the:

 

Type of decision being taken:

 

The decision, the Home Office  take will depend upon the status of the relevant person and the proportionality of the decision. An EEA decision is defined within regulation 2 of the EEA Regulations and includes:

 

  • decisions taken to refuse an application for, or revoke, a document issued under EEA law

  • decisions to refuse admission to the UK

  • making a removal decision in line with regulation 23(6)

 

When considering whether to take enforcement action against a rough sleeper the decision must be proportionate, and action should only be taken where it is apparent that the rough sleeper is misusing their right to reside.

 

Factors to consider may include:

 

  • the length of time or the number of occasions the individual has been sleeping rough

  • the reasons why the individual is sleeping rough and whether they are taking any steps to find accommodation

  • whether there is evidence of anti-social or criminal behaviour

 

Level of the misuse of a right to reside:

 

Grounds that may be a factor in making a decision to remove under regulation 23(6)(c) could include a number of circumstances, including personal circumstances.

 

Personal circumstances of the individual including any vulnerabilities:

 

The decision maker must take into account personal circumstances when they  consider whether a decision under regulation 23(6)(c) is proportionate. This includes regard to the relevant person’s:

 

  • age

  • state of health

  • family ties to the UK

  • length of residence in the UK

  • social and cultural integration

  • economic situation

  •  need for any support or assistance available if the individual is considered to be vulnerable

 

The implications of limiting the individual’s free movement:

 

An example of a disproportionate decision to serve administrative removal papers could be where an EEA national has been living lawfully in the UK as a student for 3 years and has a child at school here, but fails to hold their required comprehensive sickness insurance.  Although there is evidence that the EEA national is not fulfilling all the requirements for the exercising Treaty rights as a student; given the length of residence here and the family situation, it would be disproportionate to serve administrative removal papers to the EEA national in these circumstances.  However, any further or more significant non-exercise of Treaty rights or misuse of rights may affect the proportionality of any decision to remove.

 

Low level persistent offenders- considering deportation:

 

Where information reveals a criminal history (either in the UK and overseas), including low level persistent offending, Home Office policy is that it may be appropriate to consider, depending upon the nature, severity and escalation of offences, whether deportation for public policy or public security reasons is more suitable before proceeding with administrative removal.

 

During the minded to remove (MTR) interview, the Home Office decision maker must use the EEA deportation advice questionnaire to investigate whether the individual has any custodial sentences, fines, suspended sentences, and community orders. They must then consider whether:

 

  • the person has committed a serious crime in the UK or overseas or whether there is a pattern of low level persistent offending that is harmful to the public

  • the pattern of offending indicates escalating seriousness and the potential of future risk of harm

  • there is a risk of re-offending

  • the individual has acquired a right of permanent residence through 5 years residence in the UK

  • the individual has close family ties in the UK

 

This is in order to establish whether  the deportation criteria is likely to be met.

 

Minded to administratively remove letter and minded to remove interview:

 

Before a Home Office decision maker takes a decision to remove an EEA national or a family member of an EEA national,  they must take all reasonable steps at that time to ascertain whether the individual fits the EEA administrative removal criteria as detailed under:

 

  • EEA Regulation 23(6)(a): no right to reside

  • EEA Regulation23(6)(c): misuse of a right to reside

 

Before proceeding with an EEA administrative removal, the decision maker must also determine that a public policy decision or deportation is not a more appropriate removal option for the case.

 

If the decision maker is  satisfied that the individual fits the EEA administrative removal criteria they  should proceed straight to service of administrative removal papers.

 

If the decision maker  needs  to undertake further investigations,  they must invite the individual to a minded to remove interview.

 

Home Office policy guidance is clear that EEA nationals should not be invited to interview on a systematic basis, however, if there is indication, but not strong evidence, of criminality or other penalties, the decision maker must invite the individual to attend a minded to remove interview to investigate further.

 

If an immigration officer encounters a non EEA national claiming to be the spouse or civil partner of an EEA national, and who therefore claims to be entitled to live and work in the UK, and the officer has  reasonable grounds to suspect that the relationship is not genuine, they should investigate further. Reasonable grounds could include the context in which the officer   encountered the person, their behaviour or their responses when interviewed. If  the immigration officer has  reasonable grounds for suspecting that an immigration offence may have been committed, they  may arrest and detain them pending further investigation.

 

If the decision maker needs to undertake further investigation they must serve ICD.4621, the minded to administratively remove letter, inviting the individual to interview to provide further details and evidence. This invitation should only be issued when further investigation is required to determine whether removal is appropriate.

 

Service of the minded to remove letter is important, as it is used to trigger regulation 22 of the EEA Regulations, which allows for factual inferences to be drawn in the case of non-compliance or lack of evidence.

 

The minded to remove  interview, where required, allows decision makers  to gather further information about the individual’s residence which will allow  then  to establish if they fit the EEA administrative removal criteria.

 

The decision maker does not have to carry out the MTR interview under caution, or record it on tape. A hand written record of the interview is sufficient with the interviewee given the opportunity to initial each answer and sign at the bottom to agree it is a true record.

 

At any point, if the decision maker  suspects a marriage of convenience may have taken place, they  must investigate by conducting a marriage interview, which they  only need to carry out in accordance with the Police and Criminal Evidence Act (PACE) if it meets both the following factors:

 

  • a criminal offence is suspected

  • it is intended to prosecute

 

 

If insufficient information is provided for a decision during the interview, or the decision makers  wishes  to consider removal action following an individual refusing or failing to show for a requested interview,  they must conduct reasonable checks of available sources of information to establish whether the person has a right to reside.

 

Factual inferences may be drawn about the EEA national or their family members’ entitlement to reside if the individual fails to attend the minded to remove interview, or fails to provide sufficient information by the date set, on at least 2 occasions without good reason. The decision maker  must not decide this on the sole basis of the failure to comply. They must conduct all reasonable checks of available sources of information to establish whether the person has a right to reside.

 

Where the decision maker  determines the administrative removal criteria has been met,  they will proceed to service of administrative removal papers.

 

Verifying a right of residence and verifying eligibility:

 

Regulation 22 of the 2016 Regulation include provision for the Secretary of State to draw a factual conclusion and refuse or revoke documentation, or remove a person, if they have failed to meet this regulation.

 

Regulation 22(1) applies where a decision maker :

 

  • has reasonable doubt a person has a right to reside under regulation 14(1) or 14(2)

  • wants to check the eligibility of a person to apply for documentation under the regulations

 

If regulation 22(1) applies, decision maker can invite a person to:

 

 

  • provide evidence to support the existence of a right to reside

  • provide evidence to support an application for documentation

  • attend an interview

 

If without good reason a person fails to provide the additional information asked for or fails to attend an interview on 2 occasions, the decision maker may draw a factual conclusion about that person’s entitlement to reside in the UK.

 

Verifying a right of residence:

 

As regards reasonable doubt about a person’s right to reside, this  power may be engaged at any point, even if there is no application for documentation, providing there are reasonable grounds to doubt a person’s right to reside under the regulations.

 

Verifying eligibility for documentation:

 

This power is only engaged if an application for documentation is made.

 

Although there should be some basis to ask for additional information, there is no requirement for decision maker to have reasonable doubt.

 

Invitation to verify a right of residence:

 

If a decision maker has reasonable doubts or  they are verifying the eligibility of a person to apply for documentation, they  can request further evidence to support that right or invite them for interview.

 

Regulation 22(2) states a decision maker can ask the applicant to:

 

  • provide evidence to support the existence of a right to reside

  • provide evidence to support an application for documentation

  • attend an interview

 

Whether the decision maker asks  the person to provide more evidence or to attend an interview will depend on the individual circumstances of the case.

 

Failure to verify a right of residence:

 

Under regulation 22(4), the decision maker can draw any factual conclusions about a person’s entitlement to a right to reside if, without good reason, that person fails to:

 

  • provide the extra information they were asked for

  • attend an interview on at least 2 occasions, if they are asked to do so The decision maker may only draw the conclusion that, on the balance of probabilities, the person does not have, or has ceased to have, a right to reside in these situations if there is other evidence to suggest the person does not have a right to reside.

They must not decide that a person does not have, or ceased to have, a right to reside just because they didn’t provide the information or failed to attend an interview on at least 2 occasions.

 

There must be other grounds to suggest there is no right to reside.

 

Administrative removal papers:

 

The decision maker can proceed to serve administrative removal papers on the individual, after the following actions are complete:

 

  • initial investigations

  • public policy decisions and deportation have been ruled out

  • it is determined criteria for administrative removal has been met

  • it is considered proportionate to administratively remove

 

The administrative removal papers are:

 

IS151A (EEA) – this tells the person about their immigration status and liability to detention and removal.   Does not initiate any notice period.

 

IS151B (EEA) – this tells the person about their right of appeal from outside the UK against the decision to remove. Initiates 2 periods of notice that will run simultaneously:

 

  • a 14 day notification for appeals

  • a 30 day (minimum) period of notice during which the individual is invited to leave the UK

 

The notification period of one calendar month, may not apply in cases of duly substantiated urgency where the person is detained following sentencing or a court order. For example, foreign national offender cases that will remain in custody whilst being considered under the early removals scheme .

 

IS151D (EEA) – this tells the person about the arrangements for their removal. The form must be served at least 72 hours before removal, with a removal date at least one calendar month after service of the IS151B (EEA). In practice the IS151D form can be served along with the IS151B (EEA) allowing the 72 hours period to run concurrently with the other periods of notice

 

Service of the IS151B (EEA) provides a right of appeal by virtue of EEA Regulation 36, and triggers a period of 14 days during which the individual can appeal the decision to administratively remove.

 

The decision maker must also serve relevant appeals papers (ICD.1041 and ECD.3138).

 

Removal cannot take place while any in country appeals are ongoing.

 

In line with regulation 32(6) the person will be allowed a period of one month to leave the UK voluntarily, beginning on the date of notification of the decision to remove. In practice this will be from the date on which they are deemed to have received the IS151B (EEA).

 

During this period and while any appeal against the decision to remove could be brought or is pending, the person cannot be removed from the UK. Except for cases when a person should clearly be deported urgently or where the person is detained because of the sentence or order of any court. They must be allowed a period of one month to leave the UK voluntarily, beginning on the date of notification of the decision to make a deportation order. This is in line with regulation 32(6).

 

Where an individual wishes to make a voluntary departure before removal,following service of an IS151A (EEA) form or an IS151B (EEA) form, the decision maker must complete the IS101 (EEA) voluntary departure disclaimer form and retain it on file. The form includes a script which the decision maker  must read out to the individual.

 

Invalidation of documentation following a decision to remove:

 

In line with regulation 24(2), a decision under regulation 23(6) to remove a person from the UK will (except during any period in which a right of residence is deemed to continue in line with regulation 16(2)) invalidate the following documents held by that person:

 

  • registration certificate

  • residence card

  • document certifying permanent residence

  • permanent residence card

  • derivative residence card Also, any application made by that person for such a document where there has been a removal decision made under regulation 23(6) will invalidate that application.

 

This means that the Home Office  do not need to revoke a document held by a person in order to remove them from the UK. This is because any such removal will automatically invalidate that document.

 

Cancellation of right of residence:

 

In line with regulation 25 of the regulations, the Home Office  can cancel a person’s right of residence in the UK where the following conditions are met:

 

  • a person has a right to reside in the UK as a result of the regulations

  • the Secretary of State has decided that cancelling that person’s right to reside in the UK is either: -on the grounds of misuse of rights in line with regulation 26

  • -justified on the grounds of public policy, public security or public health in line with regulation 27

  • the circumstances are such that the Secretary of State cannot make a decision under regulation 10(1)

  • it is not possible for the Secretary of State to remove the person from the UK under regulation 23(6)(b) or (c)

 

 

This means that a person who cannot be refused a document (because they have not applied for one) or removed (because human rights reasons prevent this) will no longer be able to continue to benefit from the terms of the Free Movement Directive and can still have their right to reside cancelled.

 

Imposing restrictions whilst in the UK :

 

Any measures restricting an EEA national, or their family members, whilst in the UK need to be proportionate and taken on a case by case basis. They include restrictions on:

 

  • residency

  • reporting

  • employment

 

Retention of documents:

 

Decision makers do not have powers to retain an EEA national’s documents until the point at which they have served an IS151A (EEA). At this point paragraph 17 of the 2004 Act allows for retention of documents to facilitate removal.

 

However, if the EEA national makes a reasonable request for the document to be returned (for example for a job interview) during the 30 day notification period, the decision maker must consider this on a case by case basis. Withholding the document may prevent the individual from exercising Treaty rights.

 

Detention:

 

In line with regulation 32(1), if there are reasonable grounds for suspecting a person is someone who can be removed from the UK under regulation 23(6)(b)( public policy), the person can be detained under the authority of the Secretary of State pending a decision as to whether or not to remove that person.

 

A person who is detained on the grounds set out about above is to be treated as though they are being detained under paragraph 16 of Schedule 2 of the 1971 Act for the purposes of paragraphs 17 and 18 of Schedule 2 to the 1971 Act.

 

Decision makers must not detain EEA nationals and their family members whilst a decision to administratively remove is pending.

 

Following the decision to administratively remove (service of the IS151A (EEA), the decision make may detain individuals at the authority of a CIO or Higher Executive Officer (HEO), only where it is decided upon balance that both:

 

  • detention is necessary (for example where an individual is suspected of actively engaging in criminality or there is a clear risk of absconding)

  • the individual meets the current Home Office criteria for detention – an HMI or SEO must review detention at the 24 hours point

 

Regulation 23(6)(b) provides an anticipatory power of detention for cases being considered for deportation. Meaning EEA nationals and their family members who meet the criteria may be detained whilst a decision to deport is pending with criminal casework.

 

If Criminal Casework decide not to proceed with deportation, detention may only continue lawfully if the Home Office both:

 

  • proceed with administrative removal instead

  • has served an IS151A (EEA)

 

Where a decision is taken to remove a person under regulation 23(6)(a) or 23(6)(c), the person must be treated as if they were a person to whom, section 10(1)(a) of the 1999 Act applied. The Home office decision maker must apply section 10 of that act (removal of certain persons unlawfully in the UK) in line with this. This means that an EEA national cannot be detained until a removal decision has been made. In practice, this follows an IS151A (EEA) being served.

 

Decisions to detain must be made on a case by case basis.

 

EEA family groups and the family returns process:

 

The family returns process will apply to all EEA families with a dependent child or children (aged under 18) where an adult family member is liable to be removed, and where the children will either be removed as a dependant of that adult or may be reasonably expected to accompany them.

 

EEA families with children under 18 are referred to the Family Returns team at the earliest possible opportunity.

 

Once all in-country appeal rights have been exhausted and the family has no legal right to remain in the UK (for example, where no appeals are received within the 14 days after service of the IS151B (EEA), and any outstanding documentation or other barriers can be resolved in parallel with the returns process)

 

Where the family has indicated that they wish to leave the UK voluntarily and are willing to sign a disclaimer IS101 (EEA), to withdraw any outstanding notification periods and outstanding applications.

 

EEA removals under the early release scheme:

 

The early release scheme (ERS) is mandatory for all foreign national offenders who are liable to deportation or removal from the UK. Those eligible cannot opt out however, a number of foreign national offenders remain ineligible for the ERS.

 

Where Criminal Casework workflow determines that a foreign national offenders case is not suitable for deportation under the ERS scheme, they will forward the case to Returns Preparation who must determine if the individual is suitable for EEA administrative removal under the ERS scheme

 

Home office decision makers must follow the ERS process, as detailed in the Criminal Casework early removal scheme instructions. This includes completing the referral forms and gaining authorisation from the national offender management service (NOMS).

 

If authority to administratively remove under the ERS scheme is granted by NOMS, the decision maker  must follow the service of papers process before referring to the relevant Immigration, Compliance and Enforcement (ICE) team tasked with removal.

 

Wherever possible, removal must be effected on or as soon after the automatic release date, conditional release date or parole eligibility date where applicable.

 

Where the ERS criteria is not met, or authority is not granted, the decision maker  must issue an ICD.0260 EEA warning letter, and update CID and the file record. The completed ICD.0260 (EEA) must be faxed to the governor of the prison at which the individual is serving their custodial sentence.

 

Previously removed under regulation 23(6)(a):

 

If an immigration officer encounters, in-country, an EEA national who has re-entered the UK in the 12 months following their 23(6)(a) removal, they  must establish whether the person has been admitted at the border and whether the person is currently exercising Treaty rights.  If the person has been admitted at the border but is not exercising Treaty rights, the officer  can remove them again even if it is less than 3 months since they re-entered the country. This is because they were admitted to the UK on the basis that they would be immediately exercising Treaty rights upon re-entry. This is unless they have a right of residence in another capacity, for example as the family member of another EEA national.

 

If the immigration officer suspects that the person has re-entered the UK without being admitted at the UK border or has deliberately circumvented the border,  they will refer to EEA illegal entry: regulation 32(4).

 

Previously removed under regulation 23(6)(c):

 

Under regulation 26(4), an applicant who has been administratively removed under regulation 23(6)(c) can make an application to have that decision set aside, if there has been a material change in the circumstances which justified that decision. Such an application can only be made from outside the UK. This also applies if Border Force refuse re-admission to an EEA national who has been removed under either regulations 23(6)(a) or 23(6)(c).

 

If an immigration officer encounters, in-country, an EEA national who has re-entered the UK in the 12 months following a 23(6)(c) removal, and they have not made an application to have the decision set aside, they must:

 

  • establish whether the person was admitted at the Border

  • whether or not there are reasonable grounds to suspect the misuse of rights will continue

 

If the person has been admitted at the border but there are reasonable grounds to suspect the misuse of rights will continue then the immigration officer may remove them under regulation 23(6)(c).

 

Reasonable grounds for suspicion of a misuse of rights can include:

 

  • the EEA national has been removed for sleeping rough and there are:-no significant changes in their personal circumstances-indications that the person may again attempt to sleep rough

  • the EEA national has been removed for trying to circumvent the residence requirement and upon re-encounter is not immediately exercising Treaty rights

 

If an immigration officer  suspects that the person has re-entered the UK without being admitted at the UK border or has deliberately circumvented the border such as, by deliberately entering through the common travel area, they will refer to EEA illegal entry: regulation 32(4).

 

EEA illegal entry-regulation 32(4) :

 

Regulation 32(4) provides for EEA nationals and their family members to be treated as illegal entrants under schedule 2 of the Immigration Act 1971 on the grounds:

 

  • of entry in breach of a deportation or exclusion order

  • that they would have been refused admission on public policy, public security or abuse grounds had they presented at the border

 

An Immigration Officer  may use this power in respect of EEA nationals or their family members who are encountered in the UK. If an Officer is  satisfied that, or there are reasonable grounds to suspect that, the person has not sought admittance and been admitted at the UK border since their previous refusal or removal, and at least one of the following criteria are met:

 

  • they entered in breach of a deportation or exclusion order

  • they entered using false or fraudulent documentation

  • they entered the UK either clandestinely or by deliberately circumventing UK border controls, for example:

  • -by deliberately entering through the common travel area (CTA) after previously being refused admittance at the border under regulation 23(1) (public policy, public security, public health) or 23(3) (misuse of rights)

  • they entered the UK either clandestinely or by deliberately circumventing UK border controls, within 12 months of a previous removal under regulation 23(6)(a) or 23(6)(c)

 

The Officer must serve form ICD.5008 EEA entry in breach of a deportation order  and other illegal entrants’ form.

 

The 30 day notification window in regulation 32(6) does not apply, and the EEA national is removed as an illegal entrant as per 32(4). They have an out of country right of appeal under regulation 37.

 

(5)REVOCATION OF DOCUMENTATION

 

In line with regulation 24, a decision maker may  revoke a document on the grounds of:

 

  • public policy, public security or public health

  • misuse of rights

  • the person has stopped having or never had a right of residence or permanent right of residence

 

Appeal rights:

 

If a person has a document revoked in line with regulation 24, they will have an in-country right of appeal against that revocation.

 

There are some limited circumstances however, when the right of appeal will be out of country. These are, as follows, where the decision was to:

 

  • refuse to revoke a deportation or exclusion order

  • revoke, refuse to issue or renew any document where that decision was taken at a time when the relevant person was outside the UK

 

(6)EEA MARRIAGES OF CONVENIENCE: ADMINSTRATIVE REMOVAL OR PUBLIC POLICY DECISION?

 

Under EU law, marriages, civil partnerships and durable partnerships of convenience are defined as those contracted for the sole purpose of obtaining a right of free movement and residence under the EEA Regulations to which someone would not otherwise be entitled. The important factor in a marriage of convenience is the absence of intention of the couple to create a genuine family unit.

 

Under EEA Regulations a spouse does not include a party to a marriage of convenience, preventing non-EEA nationals from acquiring EU law rights directly from the marriage. However, EU law rights may have already been obtained outside of the marriage.

 

If   the Home Office case owner has  reasonable grounds to suspect an individual has either entered into, attempted to enter into, or assisted another person to enter or attempt to enter into, a marriage of convenience, they  must identify the most appropriate removal pathway.

 

The removal pathway for these cases (either administrative removal or a public policy decision) will depend on whether the individual is an EEA national or not, and whether EU rights have previously been recognised by the Home Office.

 

Sham marriage removal pathways:

 

  • Overstayers, illegal entrants, breach of conditions, and leave by deception: Where an EEA residence card has not been issued, and the individual concerned does not have free movement rights under EU law, administrative removal decision, standard non-EEA administrative removal procedures apply.

  • Extant leave (but assisting, entering or attempting to enter a marriage of convenience): Where an EEA residence card has not been issued, and the individual concerned does not have free movement rights under EU law, administrative removal decision applies with curtailment and simultaneous standard administrative removal decision by fast track referral to curtailment team

  • Marriage of convenience. EEA residence card issued:  For example Home Office previously recognised an EEA right on the basis of a sham relationship, but evidence now suggests that the person never had a right to reside under the EEA Regulations. Administrative removal decision. EEA administrative removal procedures under EEA Regulation 23(6)(a) – which automatically invalidates the extant EEA card. Any extant leave must be curtailed after the 23(6)(a) decision

  • Genuine family member, but involved in abuse of immigration laws:.For example facilitating a marriage of convenience.  Public policy decision.Regulation 23(6)(b) of EEA regulations 2016.

  • Involved in a marriage of convenience: For example facilitating or entering or attempting to enter a marriage, civil partnership or durable partnership of convenience. Public policy decision- Regulation 23(6)(b) of EEA regulations 2016.

 

Consideration will be given to referral to Criminal and Financial Investigation (CFI) teams for prosecution.

 

(7)REMOVAL: SHAM MARRIAGES AND MARRIAGES OF CONVENIENCE

 

Sham marriage, civil partnership and marriage of convenience:

 

Under section 24 of the Immigration and Asylum Act 1999, as amended by section 55 of the Immigration Act 2014, a sham marriage is one in which all of the following apply:

 

  • one or both of the parties is not a British citizen, a European Economic Area (EEA) national or a Swiss national

  • there is no genuine relationship between the parties to the marriage

  • either, or both, of the parties enter into the marriage for the purpose of circumventing UK immigration controls, including under the Immigration Rules or the Immigration (EEA) Regulations 2006

 

The Free Movement Directive 2004/38/EC, uses the term ‘marriages of convenience’ rather than sham marriage. It defines marriages of convenience as marriages contracted for the sole purpose of obtaining a right of free movement and residence under European Union (EU) law, which someone would not otherwise be entitled to.

 

The Free Movement Directive is transposed into domestic law by the Immigration (European Economic Area) Regulations 2016 (the EEA Regulations 2016). Regulation 2 sets out that a marriage of convenience includes a marriage entered into for the purpose of using these regulations, or any other right conferred by the EU treaties, as a means to circumvent either:

 

  • Immigration Rules that apply to non-EEA nationals (such as any applicable requirement under the 1971 Act to have leave to enter or remain in the UK)

  • criteria that the party to a marriage of convenience would otherwise have to meet in order to enjoy a right to reside under these regulation or the EU treaties

 

The important factor in a marriage of convenience is the absence of intentions of the married couple to be involved in a genuine and subsisting marriage, or relationship akin to marriage, and to create a family unit.

 

Paragraph 6(a) of schedule 1 to the EEA Regulations 2016 states that it is consistent with public policy and public security requirements to refuse, terminate or withdraw an EEA right. Including removal, where there are reasonable grounds to suspect that either an EEA national or a family member for the purposes of the EEA Regulations 2016 has:

 

  • entered into a marriage, civil partnership or durable partnership of convenience

  • attempted to enter into a marriage, civil partnership or durable partnership of convenience

  • assisted another person to enter or attempt to enter into a marriage, civil partnership or durable partnership of convenience

 

Marriage and civil partnership referral and investigation scheme:

 

Part 4 of the Immigration Act 2014 introduced a referral and investigation scheme for proposed marriages and civil partnerships across the UK involving a non-EEA national who could benefit in immigration terms.

 

Under this scheme all proposed marriages and civil partnerships in the UK are to be referred to the Home Office by the registration official if they involve:

 

  • a non-EEA national with limited or no immigration status in the UK

  • a non-EEA national who does not provide specified evidence that they are exempt from the scheme

 

Cases referred for investigation under this scheme must be conducted in accordance with the statutory guidance and according to the procedures outlined in the marriage and civil partnership referral and investigations scheme section.

 

Where a decision is made to investigate a proposed marriage or civil partnership under the scheme, the investigation must be conducted in accordance with the Proposed Marriages and Civil Partnerships (Conduct of Investigations, etc) Regulations 2015.

 

The following legislation requires all non-EEA nationals, except those exempt from immigration control, to give notice of marriage or civil partnership at a designated register office (DRO):

 

  • the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004

  • Civil Partnership Act 2004 as amended by section 58 of the Immigration Act 2014

  • Referral and Investigation of Proposed Marriages and Civil Partnerships (Northern Ireland and Miscellaneous Provisions) Order 2015

  • Referral and Investigation of Proposed Marriages and Civil Partnerships (Scotland) Order 2015

 

This includes non-EEA nationals with a temporary or permanent right to enter or remain in the UK under the Immigration Rules, and those who have a European Union (EU) right to enter or remain in the UK. For example, holders of EEA family permits, residence cards and permanent residence cards.

 

In England and Wales, both parties to the marriage or civil partnership must attend the DRO together in person.

 

In Scotland and Northern Ireland, notice may also be given by post as well as in person, and it must be given at a designated register office. Currently every register office is designated for Northern Ireland and Scotland.

 

Section 24 and 24A of the Immigration and Asylum Act 1999, as amended by section 55 of the Immigration Act 2014, places a duty on a registration officer to report to the Home Office any reasonable suspicions that a marriage or civil partnership will be, or is, a sham. A report can be made at any point from when initial contact is made at the register office to any time immediately after the marriage or civil partnership has taken place.

 

 

Under schedule 6 of the Immigration Act 2014, a registration officer may also disclose any information or supply any document to the Home Office for immigration purposes. Including for example where a suspected immigration offender while registering a birth or death.

 

UK Visas and Immigration (UKVI) are responsible for considering applications for leave to remain based on a marriage or a civil partnership and applications for EU residence documentation.

 

UKVI may invite the couple for an interview or alternatively commission a home visit.

 

There is no criminal offence of entering into a sham marriage but there are other offences for which a person could be prosecuted for involvement in a sham marriage.

 

These include:

 

  • section 24A of the Immigration Act 1971 – obtaining or seeking to obtain leave to enter or remain in the UK by deception

  • section 25(1) of the Immigration Act 1971 – assisting unlawful immigration (facilitation)

 

Notice periods:

 

The 2014 act extended the marriage and civil partnership notice period from 15 days to 28 days for all couples marrying in the UK following civil preliminaries or forming a civil partnership. It also required all couples involving a non-European Economic Area (EEA) national, who wish to marry in the Anglican Church in England and Wales, to complete civil preliminaries and give notice at a designated register office and be subject to the 28 day notice period.

 

All marriage or civil partnership notices involving non-EEA nationals with limited or no immigration status in the UK are referred from a registration officer to the Marriage Referral and Assessment Unit (MRAU). All referrals are initially assessed by MRAU and consideration is given as to whether to conduct an investigation into the marriage or civil partnership. If the marriage or civil partnership is to be investigated, both parties and the relevant registration official are notified that the notice period is to be extended from 28 to 70 days.

 

Where there are reasonable grounds to suspect a sham marriage and at least one of the parties is not exempt from the scheme, the Home Office may decide to investigate whether the marriage or civil partnership is a sham. If the marriage or civil partnership is to be investigated, both parties and the relevant registration official are notified that the notice period is to be extended from 28 to 70 days.

 

Although the notice period is extended to 70 days, the deadline for a notification of the result of the investigation to the registration officer is 65 days.

 

Where the Secretary of State decides to investigate a couple referred under the scheme, the investigation must be conducted in accordance with the Proposed Marriages and Civil Partnerships (Conduct of Investigations, etc) Regulations 2015.

 

Section 3 of the marriage and civil partnership referral and investigation scheme statutory guidance sets out how an investigation into a proposed marriage or civil partnership should be conducted by the investigating officer for the purpose of establishing whether it is a sham. Including the:

 

  • methods of investigation that can be used

  • time periods relevant to the conduct of the investigation

  • procedures and safeguards applicable to each investigation method

 

Both parties to the proposed marriage or civil partnership must comply with the requirements of an investigation. One or both of the parties may be required to provide information, evidence or photographs and be interviewed in any of the following circumstances:

 

  • in person at home

  • in person at Home Office premises in or outside the UK

  • whilst detained in the UK

  • by telephone, video-link or over the internet

 

As part of the investigation, each party may be required to provide information or evidence about:

  • themselves and about the other party

  • their relationship with the other party

  • their living arrangements and those of the other party

  • their future plans and those of the other party

 

The MRAU or the relevant ICE team may require persons investigated under the scheme, to make contact by telephone, text, email or post to arrange an interview.

 

The ICE team arrange the first interview under Operation Equal procedures and are responsible for re-arranging interviews if required.

 

ICE teams should invite the parties to interview using form ICD.4977 giving:

 

  • at least 3 working days’ written notice of the date, place and time of the interview, unless other agreements are in place

  • details of the date, place and time of the interview verbally or by email, where agreements have been made for an interview with less than 3 days’ notice

 

A failure to respond to any question asked during an interview, or a refusal to answer any further questions thereby bringing the interview to an end, may be regarded as a failure to comply with the requirement to be interviewed.

 

Where the investigation determines that the proposed marriage or civil partnership is a sham the Home Office may, where appropriate:

 

  • take an enforcement decision, such as curtailment, administrative removal or deportation, against any non-EEA or EEA nationals involved

  • refuse any application under the Immigration (European Economic Area) Regulations 2016 (the regulations) or the Immigration Rules which is based on the relationship in terms that will withstand any appeal

  • seek the prosecution of those involved in a criminal offence, such as perjury or facilitation of illegal immigration, by consultation with or reference to, the relevant prosecuting authority

 

Role of European casework:

 

 

European casework has a number of important roles within European Economic Area (EEA) marriage investigations including:

 

  • close liaison between Immigration Compliance and Enforcement (ICE) teams and European casework,

  • requesting ICE teams to investigate a suspected abusive application, which cannot be refused solely on the papers

  • Visits may also lead to intelligence on other offending, with consequent arrests and removals

  • prioritising EEA applications that are made at the last minute in an attempt to delay or prevent removal

 

If decision maker is considering the removal of an individual who still has a pending application for a residence card which is based on a sham marriage or sham civil partnership,  they  should contact European casework to request consideration for immediate refusal.

 

Non – suspensive right if appeal:

 

In most cases, an appeal against refusal of an EEA residence card is likely to be non-suspensive (that is, it does not necessarily suspend removal), depending on the individual case circumstances. There may be additional factors to be taken into account. It is different to an appeal against a removal decision which will, in most circumstances, suspend removal.

 

Genuine relationships involving EEA nationals:

 

Where there is evidence that a non-EEA immigration offender is now genuinely married to an EEA national, the decision maker  must not serve enforcement papers on the non-EEA national immigration offender. This is regardless of whether an application has been made for a residence card under the EEA Regulations.

 

However, the decision maker can  serve enforcement papers where a person meets all of the following criteria:

 

  • is the genuine unmarried partner of an EEA national

  • does not yet hold an EEA residence card

  • is an immigration offender

 

This is because a person has no rights under European Union (EU) law as an unmarried partner of an EEA national until they have been issued a residence card on this basis. In such circumstances, the decision maker  must advise them to submit an application on this basis and ask European casework to expedite any application received. If no application is submitted within a reasonable timeframe,  the decision maker can proceed with removal action.

 

The Home Office may also encounter a marriage where one party to the marriage has been deceived by their partner and believes they are entering into a genuine marriage. If, following interview, it is clear that the EEA national believed they were entering into a genuine marriage and that, they have not engaged in fraud or abuse; the decision maker must not serve removal papers on the EEA national.

 

Removal decisions and revoking residence cards:

 

Where a non-EEA national has been issued with a document by the Home Office confirming a right of residence under EU law, any removal action must be taken under the EEA Regulations 2016.

 

Documents issued to non-EEA nationals to confirm EU law rights are:

 

  • EEA family permit

  • UK issued residence card

  • UK issued permanent residence card

 

In these cases a removal decision should be taken under regulation 23(6)(a) of the EEA Regulations 2016 which automatically invalidates the residence card. An appeal against removal under regulation 23(6) will suspend removal.

 

Where no EU rights exist and no EEA documentation has been issued, normal provisions for removing a non-EEA national will apply. The decision maker can proceed with removal in accordance with part 1, section 1, of the Immigration Act 2014 if the person requires leave to enter or remain in the UK but does not have it.

 

If extant leave to enter or remain (such as work or student leave) needs to be curtailed, the curtailment caseworker will make a simultaneous removal decision under section 47 of the Immigration, Asylum and Nationality Act 2006.

 

If an individual has both falsely obtained a residence card and existing leave to enter or remain, make the regulation 23(6)(a) decision first. The existing leave can then be curtailed as detailed previously.

 

Action against EEA nationals contracting sham marriages:

 

On the 1 of February 2017, changes to the public policy and public security provisions of the EEA Regulations 2016 commenced.

 

The changes mean that EEA nationals involved in a marriage, civil partnership or durable partnership of convenience is subject to a public policy decision can be removed from the UK by means of a time-limited deportation order rather than an administrative removal, as was the case under the EEA Regulations 2006.

 

A decision to deport on the grounds of public policy can be considered where there are reasonable grounds to suspect an EEA national has entered into, attempted to enter into, or assisted another person to enter into or attempt to enter into, a marriage, civil partnership or durable partnership of convenience.

 

Such decisions can be made under regulation 23(6)(b) of the EEA Regulations 2016, where this is considered proportionate.

 

(8)TIME- LIMITED DEPORTATION( UNDER PUBLIC POLICY)

 

All previous Home Office guidance on public policy and public security decisions made under the Immigration (European Economic Area) Regulations 2006 cease to be in force as the current applicable Home Office Policy Guidance is EEA decisions on grounds of public policy and public security Version 1.0, 1 February 2017.

 

The guidance applies to EEA nationals, family members of EEA nationals, any person with a derivative right of residence and extended family members provided they have valid documentation confirming a right of residence which satisfies regulation 8 of the EEA Regulations 2016.

 

The guidance must be used in EEA decisions taken on the grounds of public policy and public security including a decision

 

  • to refuse admission to the UK under regulation 23(1)

  • to exclude from the UK under regulation 23(5)

  • to deport from the UK under regulation 23(6)(b)

  • to refuse to issue, revoke or refuse to renew a residence card or residence permit under regulation 24(1). An EEA decision, as defined in regulation 2 of the EEA Regulations 2016, taken on the grounds of public policy or public security must be in accordance with regulation 27 of the EEA Regulations 2016.

 

 

Public policy and public security:

 

Public policy and public security are not defined in the directive or the EEA Regulations 2016. The Home Office approach is that since there is no uniform scale of public policy or public security values across member states, the government has discretion as to the standards of public policy and public security that apply in the UK from time to time. This position is reinforced by paragraph 1 of schedule 1 of the EEA Regulations 2016.

 

Protection against restriction of Free Movement rights and removal:

 

Article 28 of the Directive provides additional protection in relation to decisions to remove an EEA national or their family members including higher thresholds for the removal of certain EEA nationals and their family members based on their length of residence in the UK. A different threshold applies where the decision relates to a person who has a permanent right of residence or, in relation to an EEA national only, who has resided in the UK for a period of at least ten years or who is a child.

 

Individuals with a permanent right of residence:

 

Where an EEA national or their family member has established a permanent right of residence, a decision to refuse admission, exclude, revoke residence or remove the person from the UK, is only permitted on serious grounds of public policy or public security.

 

Serious grounds is not defined in the EEA Regulations 2016 or the directive. To justify a decision on serious grounds, there must be stronger grounds than would be applicable for a person who does not have a permanent right of residence.

 

Regulation 15 of the EEA Regulations 2016 sets out the circumstances when an EEA national or their family member can acquire a permanent right of residence in the UK.

 

EEA nationals with 10 years’ residence in the UK and EEA children:

 

Under regulation 27(4) of the EEA Regulations 2016, a decision to refuse admission, exclude, revoke residence or remove the person from the UK, is only permitted on imperative grounds of public security. Where an EEA national either:

 

  • has resided in the UK for a continuous period of at least ten years prior to the decision

  • is under the age of 18, unless the relevant decision is in the best interests of the person concerned, as provided for by the Convention on the Rights of a Child

 

Imperative grounds is not defined in the EEA Regulations 2016 or the directive. It must be interpreted more widely than threats to the state or its institutions, and can, for example, include serious criminality, such as drug dealing as part of an organised group(Tsakouridis (European citizenship) [2010] EUECJ C-145/09).

 

Restriction of EEA rights on grounds of public policy or public security:

 

Regulation 27 and schedule 1 of the EEA Regulations 2016 set out the principles to be considered when making a decision to refuse admission, exclude, refuse or revoke residence or remove an EEA national or their family member from the UK on grounds of public policy or public security.

 

Regulation 27(5) requires that, where such a decision is taken, it must be in accordance with the following principles:

 

  • the decision must comply with the principle of proportionality

  • the decision must be based exclusively on the personal conduct of the person concerned

  • the personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, taking into account past conduct of the individual and that the threat does not need to be imminent

  • matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision

  • the individual’s previous criminal convictions do not in themselves justify the decision

  • the decision may be taken on preventative grounds, even in the absence of a previous criminal conviction, provided the grounds are specific to the person

 

Principles to follow when making public policy or public security decisions:

 

A decision taken on grounds of public policy or public security must be in accordance with the principles set out in regulation 27(5) of the EEA Regulations 2016.

 

In every case where a decision is made on the grounds of public policy or public security, the decision maker must consider the following six principles:

 

  • the principle of proportionality

  • the personal conduct of the person concerned

  • whether the personal conduct of the individual concerned represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, taking into account past conduct of the person and that the threat does not need to be imminent

  • matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision

  • a person’s previous criminal convictions do not in themselves justify the decision

  • the decision may be taken on preventative grounds, even in the absence of a previous criminal conviction, provided the grounds are specific to the person

 

Genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, taking into account past conduct of the person and the threat does not need to be imminent.

 

Having regard to Home Office policy guidance, the threat must exist but it does not need to be imminent. An indication of a present threat may include intelligence or any precautionary measures which have been imposed on the individual. Even a low risk can constitute a present threat, especially where the consequences of any offence could be serious. The Home Office position is that an argument by the individual that they pose a low risk of offending should not be determined automatically in their favour when making a public policy decision. For the purpose of determining whether a person is a present threat while they are detained, the fact that they are detained should not be taken into account. The threat does not need to be imminent at the point of release.

 

Taking into account the policy guidance,  this  clarifies that  the  threat must be serious enough to affect one of the fundamental interests of society but does not need to be a serious threat. It is also not necessary to demonstrate that an individual is likely to commit a specific type of offence.

 

The duration of any rehabilitative efforts will be relevant to the public policy decision. Where such efforts are in their infancy (for example a few weeks in the community, or a few sessions undertaken) these should not be considered to be determinative of the question of a risk of recidivism. Where an individual relies on rehabilitative prospects in their country of origin compared to the UK, any differences in rehabilitative provisions will be minor, unless there is strong evidence to the contrary.

 

The decision may be taken on preventative grounds, even in the absence of a previous criminal conviction, provided the grounds are specific to the person:

 

Home Office policy guidance clarifies that a decision may be made on public policy or public security grounds to prevent the specific individual from carrying out certain, specific types of conduct. This is considered particularly important in the national security context, where there is reliable intelligence to suggest that a Union citizen or their family member may pose a threat to public security.

 

Social and cultural integration:

 

Mere presence in the UK is not considered evidence of integration. The person subject to a public policy or public security decision will need to show a wider degree of cultural and societal integration to be regarded as integrated in the UK. Where the individual is only able to show links with their family members, or with others of the same nationality, or who speak the same language, this alone will not be sufficient to demonstrate integration in the UK.

 

Criminal offending is considered an indication of a lack of integration. Where a custodial sentence is received, the longer the sentence, or in the case of a persistent offender, the more convictions, the greater the likelihood that the person is not integrated. The nature of offending, such as anti-social behaviour against a local community or offending that may have caused a serious or long-term impact on a victim or victims (for example sexual assault, burglary) may be further evidence of non-integration.

 

Fundamental interests of society:

 

What constitutes the fundamental interests of society in the UK is set out in schedule 1 of the 2016 EEA Regulation  and provides examples of the types of behaviour that are contrary to those interests.

 

Schedule 1 of the EEA Regulations 2016 provides a non-exhaustive list of the fundamental interests of society in the UK. Consideration must be given to the fundamental interests of society to determine whether it is appropriate to restrict a person’s free movement rights on the grounds of public policy and public security. In some cases the behaviours may be contrary to more than one fundamental interest. When making a decision, the Home Office   decision maker must list all the relevant fundamental interests which apply.

 

The fundamental interests of society include:

 

(a) preventing unlawful immigration and abuse of the immigration laws, and maintaining the integrity and effectiveness of the immigration control system (including under these regulations) and of the Common Travel Area

 

Examples of behaviour contrary to this interest include:

 

  • marriages of convenience or durable partnership of convenience

  • human trafficking

  • use of fraudulent documents

  • facilitating illegal entry to the UK

  • circumventing the immigration system

  • facilitating the circumvention of the immigration system

 

 

(b) maintaining public order

 

Examples of behaviour contrary to this interest include:

 

  • inciting public disorder

  • anti-social behaviour such as criminal damage, rough sleeping, drug offences and offences committed to fund a drug or alcohol habit, or committed while under the influence of drugs or alcohol

 

(c) preventing social harm

 

Examples of behaviour contrary to this interest include:

 

  • low-level criminality

  • acquisitive crime including theft and shoplifting

 

(d) preventing the evasion of tax and duties

 

Examples of behaviour contrary to this interest include:

 

  • tobacco or alcohol smuggling

  • tax fraud

  • non-payment of taxes or duties owed

  • Examples of behaviour contrary to this interest include:

 

(e) protecting public services 

 

  • benefit fraud

  • rough sleeping

 

(f) excluding or removing an EEA national or family member of an EEA national with a conviction (including where the conduct of that person is likely to cause, or has in fact caused, public offence) and maintaining public confidence in the ability of the relevant authorities to take such action

 

(g) tackling offences likely to cause harm to society where an immediate or direct victim may be difficult to identify but where there is wider societal harm (such as offences related to the misuse of drugs or crime with a cross-border dimension as mentioned in Article 83(1) of the Treaty on the Functioning of the European Union.

 

Examples of behaviour contrary to this interest include:

 

  • drugs offences (e.g. smuggling, supplying, manufacturing drugs)

 

(h) combating the effects of persistent offending (particularly in relation to offences, which if taken in isolation, may otherwise be unlikely to meet the requirements of regulation 27)

 

Examples of behaviour contrary to this interest:

 

  • persistent shoplifting

 

(i) protecting the rights and freedoms of others, particularly from exploitation and trafficking

 

Examples of behaviour contrary to this interest include:

 

  • high harm criminality

  • human trafficking

 

(j) protecting the public

 

Examples of behaviour contrary to this interest include:

 

  • high harm criminality

  • human trafficking

 

(k) acting in the best interests of a child (including where doing so entails refusing a child admission to the United Kingdom, or otherwise taking an EEA decision against a child)

 

Examples of behaviour contrary to this interest include:

 

 

  • entry of a child if there are concerns as to why they are coming to the UK or who they are travelling with

 

(l) countering terrorism and extremism and protecting shared values

 

Behaviour which may lead to a public policy decision:

 

The types of behaviour considered contrary to the fundamental interests of society are set out in schedule 1 to the Immigration (European Economic Area) Regulations 2016 (EEA Regulations 2016). This is not an exhaustive list.

 

Criminality:

 

A person’s criminal behaviour will be taken into account when making a decision on public policy or public security grounds, although a decision can be made even if the person has not received any criminal convictions if there is a sufficient, corroborated law enforcement evidence to underpin a decision. Such criminal behaviour may be demonstrated by domestic or overseas convictions.

 

Low level persistent offending:

 

Persistent offending is considered contrary to the fundamental interests of society as set out in paragraph 7(f) of schedule 1 to the EEA Regulations 2016.

 

Persistent offending includes offences, which if taken in isolation, may otherwise not meet the requirements of regulation 27.

 

An individual is considered to be a persistent offender if they show a pattern of offending over a period of time. This can mean a series of offences committed in a fairly short timeframe, or which escalate in seriousness over time, or a history of minor offences. Non-custodial sentences, suspended sentences, restraining orders, Antisocial Behaviour Orders (ASBOs) and police cautions can all be taken into account, but consideration will need to be conducted on a case by case basis.

Marriage, civil partnership and durable partnership of convenience:

Paragraph 6(a) of schedule 1 to the EEA Regulations 2016 states that it is consistent with public policy and public security requirements to refuse, terminate or withdraw an EEA right where it involves entering or attempting to enter into a marriage, civil partnership or durable partnership of convenience.

 

Entering, or attempting to enter, a marriage, civil partnership or durable partnership of convenience for the purpose of circumventing the UK’s immigration controls is also considered contrary to the fundamental interests of society. As set out in paragraph 7(a) of schedule 1 to the EEA Regulations 2016.

 

Where there are reasonable grounds to suspect a person with an EEA right has entered or attempted to enter a marriage, civil partnership or durable partnership of convenience, it may be appropriate to make a decision to refuse admission, refuse or revoke residence or remove.

 

A non-EEA national who has entered into a marriage or civil partnership of convenience must be treated as an immigration offender under the Immigration Rules. This is unless the person has already been issued a document under the EEA Regulations 2016 as the spouse or civil partner of an EEA national.

 

If a document has been issued, the non-EEA national must be considered under the EEA Regulations 2016. Removal action can be taken under regulation 23(6)(b).

 

Fraudulently obtaining a right to reside:

 

Paragraph 6(a) of schedule 1 to the EEA Regulations 2016 states that it is consistent with public policy and public security requirements to refuse, terminate or withdraw an EEA right. where it involves fraudulently obtaining, attempting to obtain or assisting the fraudulent acquisition of a right to reside under the EEA Regulations 2016.

 

Fraudulently obtaining, attempting to obtain or assisting the fraudulent acquisition of a right to reside under the EEA Regulations 2016 is also considered contrary to the fundamental interests of society, as set out in paragraph 7(a) of schedule 1 to the EEA Regulations 2016.

 

Examples of fraudulent behaviour to obtain a right to reside include:

 

  • false evidence of relationship (such as fraudulent marriage, birth or divorce certificates)

  • false evidence of the exercise of Treaty rights (for example, fraudulent wage slips, bank statements, letters confirming study, claims that a person is self employed but Her Majesty’s Revenue and Customs checks confirm the person is not registered)

  • misrepresentation of facts regarding any qualifying criteria (such as permission to work for Croatian nationals, permanent residence)

  • false EEA documentation (such as registration certificate, residence card)

 

Evasion of taxes and duties:

 

The evasion of taxes and duties is considered contrary to theU fundamental interests of society as set out in paragraph 7(d) of schedule 1 to the EEA Regulations 2016.

 

If an individual is found to have in their possession goods such as tobacco or alcohol in large quantities which are not consistent with personal use, consideration should be made to whether they are attempting to evade significant payment of duty.

 

In cases where an individual has already been admitted to the UK under regulation 11 and where the person is located within 24 hours of being admitted, the decision make  may revoke admission under regulation 31.

 

Exclusion Order- decision to exclude from the UK:

 

Under regulation 23(5) of the EEA Regulations 2016, the Secretary of State can make an exclusion order against an EEA national or their family member on the grounds of public policy or public security.

 

An exclusion order can only be made against a person who is outside the UK. The effect of the order is to prohibit the person’s admission to the UK.

 

A conviction is not necessary in order to consider a person for exclusion. If the person’s activities are capable of falling within the scope of UK criminal legislation (or conduct prohibited by law), whether or not the individual is charged with or convicted of an offence, then it may warrant exclusion.

 

Regulation 34(1) of the EEA Regulations 2016 stipulates that the exclusion order remains in force until it is revoked.

 

Entry in breach:

 

An EEA national or family member who returns to the UK while an exclusion order is still in force will either be:

 

  • stopped on entry by a Border Force officer before they pass through immigration control

  • encountered after entry, having managed to pass through or circumvented the control on arrival

 

If a person subject to an exclusion order is stopped on entry, they are deemed to have sought to enter in breach of an exclusion order and the on entry procedures apply.

 

An EEA national or their family member who enters the UK in breach of an extant exclusion order will be removable as an illegal entrant (regulation 32(4)). The right of appeal against the decision to remove is in regulation 26. As a result of regulation 37(1)(g) this will be an out of country right of appeal.

 

Decision to refuse admission to the UK:

 

Regulation 23(1) sets out that a Border Force officer may refuse admission to an EEA national or their family members on the grounds of public policy or public security in accordance with regulation 27.

 

The decision maker must also refuse entry to an individual who is subject to a valid deportation order or exclusion order (regulation 23(2) unless they are seeking to be admitted temporarily for an appeal hearing and have permission to do so. Where an individual is not subject to a deportation order or exclusion order  the decision maker will need to consider whether there are public policy or public security reasons for refusing admission to the UK.

 

If a decision is made to refuse entry to an EEA national on grounds of public policy or public security, the individual’s passport must not be endorsed.

 

The decision maker must consider the levels of protection against a public policy or public security decision and regulation 27(5) when deciding whether to refuse admission.

 

Once a person has passed through immigration control, they are considered to have been admitted to the UK. Unless they entered in contravention of a deportation order or exclusion order or were not entitled to be admitted under regulation 23(1) or (3). If they are stopped by another agency (for example the police) and a decision is made to deport the individual, there is no need to make a separate decision to refuse admission to the UK.

 

A decision to grant admission to an EEA national or their family member does not necessarily preclude a decision from being made on public policy or public security grounds at a later date. For example, just because a decision to allow admission to the UK has been made does not automatically prevent a deportation decision from being made against that individual.

 

Decision to refuse, renew or revoke documentation:

 

Refuse to issue or renew documentation

 

In every application for documentation under the EEA Regulations 2016, the decision maker may refuse to issue the documentation on public policy or public security grounds. Any such decision must be made in accordance with regulation 27.

 

If the decision maker is  satisfied that the application for documentation falls to be considered on public policy or public security grounds then  they  should refer the case for deportation consideration.

 

A decision to issue or renew documentation does not automatically preclude a decision from being made on public policy or public security grounds at a later date.

 

Impending prosecutions

 

There may be evidence that suggests that an individual may pose a threat to public policy or security, as set out in regulation 27 of the EEA Regulations 2016. Where an individual is being investigated by the police, or has been charged with a criminal offence, an examination of the available evidence supporting the underlying allegations may provide grounds for such concerns and consideration should be given to whether deportation action is appropriate. If the individual is convicted in due course, the criminal convictions and surrounding circumstances may permit a public policy or public security decision to be taken.

 

In the first instance, the decision maker  must consider whether there are any grounds for refusal which could apply ahead of the conclusion of the criminal proceedings.

 

In some cases, there will be sufficient evidence to justify taking a public policy or public security decision before the conclusion of any outstanding criminal proceedings.

 

If the decision maker is  satisfied that there is sufficient evidence of a threat on grounds of public policy or public security and that the principles in regulation 27(5) have been sufficiently considered, must notify the applicant that a decision has been made on grounds of public policy or public security, not to determine the outcome of the application at this time and that the application will be held pending the outcome of criminal justice proceedings.

 

The decision maker must monitor these cases and make a decision on the individual’s application as soon as is practicable upon conclusion of the criminal justice proceedings

 

Revocation of documentation

 

Under the EEA Regulations 2016 a decision may be made to revoke documentation issued. This may include where the person has ceased to have a right of residence on public policy grounds, or where the person never had a right of residence in the first place. Once the documentation has been revoked the case should be referred for enforcement action.

 

Decision to deport from the UK:

 

Regulation 23(6)(b) of the EEA Regulations 2016 allows for the deportation of EEA nationals or their family members on grounds of public policy or public security. Any such decision must be made in accordance with regulation 27 of the EEA Regulations 2016. The government’s policy is to pursue the deportation of EEA nationals or their family members when the person’s conduct represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.

 

Regulation 32(6) provides that a person subject to a deportation decision made under regulation 23(6)(b) is allowed one month to leave the UK voluntarily, beginning on the date on which they are notified of the decision to remove them, before being removed pursuant to that decision. A person may be removed earlier:

 

  • in duly substantiated cases of urgency (for example if a prisoner was involved in prison riots)

  • where the person is detained pursuant to the sentence or order of any court

  • where a person has entered in breach of a deportation or exclusion order

 

Regulation 33 allows the Secretary of State to certify that removal pending the final determination of an appeal would not be unlawful under section 6 of the Human Rights Act 1998. The effect of certification is that an appeal lodged against a deportation decision does not suspend removal.

 

Regulation 32(5) requires that, where a deportation order is made against a person but they are not removed under the order during the two year period beginning on the date on which the order is made, the decision make must assess whether there has been any material change in circumstances since the deportation order was made before taking action to remove the person. Only where it is considered that the removal continues to be justified on the grounds of public policy or public security can the person be removed under that deportation order .

 

Irish nationals:

 

The UK does not routinely deport Irish nationals. Irish citizens are to be considered for deportation only where a court has recommended deportation in sentencing or where the Secretary of State concludes that, due to the exceptional circumstances of the case, deportation is consistent with public policy or public security. This includes anyone of dual Irish and another nationality. It does not include non-EEA nationals who are the dependants of Irish nationals.

 

Liability to deportation:

 

If an EEA national or a family member of an EEA national is liable to deportation they must be notified in writing and given the opportunity to make representations, if they want to, about why they should not be deported.

 

When a person is informed of their liability to deportation, they must be advised of the public policy or public security reasons for their intended removal from the UK.

 

The decision maker must also notify the person about any known ties to the UK, including their length of residence here, whether they have resided in accordance with the EEA Regulations 2016 and whether they have acquired a permanent right to reside. This information must be included so that the person has an opportunity to challenge any of these points and to enable the Secretary of State to make an informed decision which takes account of all relevant information. In the event that a subsequent deportation decision is appealed it is also intended to avoid new information coming to light at the appeal so that the appeal judge is, in effect, the first decision-maker.

 

The liability notice must also contain a warning under section 120 of the Nationality, Immigration and Asylum Act 2002, in accordance with paragraph 2 of schedule 2 to the EEA Regulations 2016. This places a continuing obligation to raise with the Home Office any reasons why they should not be deported from the UK including any time there is a material change of circumstances, as soon as they occur. Section 96(2) of the Nationality, Immigration and Asylum Act 2002 provides for the denial of a right of appeal in certain circumstances where a matter later relied on should have been, but was not, raised in response to a section 120 notice.

 

Effect of a deportation order:

 

A deportation order enters into force once the individual has been notified of the deportation order. Once in force, the person’s free movement rights have been restricted and the person is required to leave the UK. If the person does not comply with the requirement to leave the UK then (subject to having one month to leave voluntarily) the person’s removal can be enforced.

 

If an EEA national or their family member seeks admission to the UK but is subject to an extant deportation order, they must be refused admission under regulation 23(2). They will only be considered for admission once the deportation order has been revoked.

 

Where a person has been deported under the EEA Regulations 2016, regulation 41 provides for a person to be temporarily admitted for the purpose of making submissions in person at their appeal against deportation.

 

Revocation of a deportation order:

 

Deportation orders made under the EEA Regulations 2016 remain in place until revoked by the Secretary of State or for the period specified in the order. Once deported, the individual is prohibited from returning to the UK unless they successfully apply to have the order revoked or until after the period specified in the order

 

An individual who is subject to either an indefinite or time-limited deportation order can apply to the Home Office for revocation of the order. Such an application must be made from outside of the UK after the individual has been deported.

 

When considering whether to revoke the deportation order the decision maker must consider whether there has been a material change in circumstances that justified the decision to make a deportation order (regulation 34(4).  An application for revocation of a deportation order must be decided within six months of the date of application (regulation 34(6) and all applications will be assessed on a case by case basis.

 

Non-EEA deportation orders:

 

There may be some non-EEA nationals previously deported under the Immigration Act 1971 or the UK Borders Act 2007 who must now be considered under the EEA Regulations 2016. For example if:

 

  • the deportation order was made under the above acts before their country of nationality became a European Union (EU) member state

  • they were a non-EEA national and they have subsequently been granted citizenship of an EEA country

  • they are now the family member of an EEA national An individual who is the subject of a deportation order made under the Immigration Act 1971 or UK Borders Act 2007 should not normally be admitted to the UK, even if this decision was not made under the EEA Regulations 2016.

 

The decision maker should consider whether the individual’s conduct justifies remaking the deportation order under the EEA Regulations 2016. If not, and the individual meets the criteria for admission,  the decision maker  should revoke the deportation order.

 

Entry in breach:

 

Deportation on EEA grounds:-An EEA national or family member of an EEA national, who enters or seeks to enter in breach of a deportation order, is regarded as an illegal entrant under section 33(1) of the Immigration Act 1971. This is in line with regulation 32(4).

 

Deportation on non-EEA grounds:-It may be the case that a person was previously deported on grounds other than public policy or public security, at a time when they were neither an EEA national nor the family member of an EEA national, but have since acquired the right of residence in the UK under EU law.

 

It may also be the case that the person’s deportation was deemed to be conducive to the public good (section 3(5)(a) of the 1971 Act) but the considerations applied were not directly comparable to public policy or public security considerations.

 

In these circumstances, the decision maker  must review the reasons for making the deportation order. Unless it was made on the grounds of public policy or public security and those considerations still apply,  the decision maker  should revoke the existing deportation order.

 

Re-entry restriction following a deportation order:

 

In accordance with regulation 23(8) a person deported from the UK on the grounds of public policy or public security will be prohibited from entering the UK until the deportation order is revoked or for the period specified in the deportation order.

 

The EEA Regulations 2016 introduce time-limited deportation orders for some deportation decisions made under regulation 23(6)(b). The length of the re-entry restriction associated with the deportation order will depend on the risk that is imposed to the fundamental interests of society.

 

Where consideration is given to making a deportation decision on the basis of behaviour which is contrary to the fundamental interests of society, a table in  the Policy Guidance  as summarized below,  provides an indication of the length of re-entry restriction to be imposed where an indefinite re-entry ban would be disproportionate. This is not prescriptive and in some cases the re-entry restriction may differ depending on the specifics of each individual case. In cases of serious criminality not covered in the table an indefinite deportation may apply.

 

Once deported, the individual is prohibited from returning to the UK unless they successfully apply to have the order revoked or until after the period specified in the order.

 

Length of re-entry restriction:

 

  • 3 years, re- entry ban:- Unlawful immigration and/or facilitating immigration abuse where there is no criminal conviction for example marriages of convenience use of fraudulent documents.

  • 5 years or 10 years re-entry ban depending on the number, severity, and time span of the offences committed:- Social harm for example anti-social behaviour.

  • 5 years or 10 years re-entry ban depending on the number, severity, and time span of the offences committed:: Evasion of taxes and duties for example customs excise evasions

  • 5 years or 10 years re-entry ban depending on the number, severity, and time span of the offences committed: Abusing public services for example income tax evasions, benefit fraud

  • 5 years or 10 years re-entry ban depending on the number, severity, and time span of the offences committed: Low level persistent criminality for example where there are a number of convictions, warnings and/or cautions for low level crimes such as shop-lifting

 

Practical effect of a public policy or public security decision:

 

Decision to impose a restriction on work:

 

A decision to remove an individual on public policy or public security grounds is taken on the basis of a detailed consideration of their individual circumstances and the risk that they pose.

 

The Home Office’s position is that imposition of working restrictions following such a decision is a means to give effect to the Secretary of State’s decision that the person’s removal from the UK is justified on grounds of public policy or public security.

 

Such restrictions may also be imposed where an individual has been granted bail, as release on bail does not invalidate or remove the justification for the deportation decision.

 

Any decision to impose a working restriction will be as a consequence of the deportation decision, which involves a consideration of the individual’s personal circumstances and the factors in regulation 27. Any decision to impose working restrictions must not be made on grounds of general prevention or deterrence.

 

RELEVANT HOME OFFICE POLICY GUIDANCE APPLICABLE

 

  • European Economic Area nationals: qualified persons, Version 4.0, 1 February 2017

  • European Economic Area (EEA) administrative removal, Version 3.0, 1 February 2017

  • Removals and revocations of European Economic Area (EEA) nationals, Version 2.0, 1 February 2017

  • European Economic Area nationals: misuse of rights and verification of EEA rights of residence, Version 2.0

  • Marriage Investigations, Version 2.0, 1 February 2017

  • EEA decisions on grounds of public policy and public security, Version 1.0, 1 February 2017

 

CONCLUSION

 

The 2016 EEA Regulations only came into force fully a month ago.  It  therefore remains to be seen whether the new Regulation changes will withstand  forthcoming legal challenges on controversial aspects introduced.  Litigation  in the Upper Tribunal and higher Courts  is inevitable  in light of  the  effects  of the new regulations  also requiring  judicial  interpretation, which too  may  need to take into account whether these Regulations truly give effect to the  parent Citizens Directive.

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