Tag Archive for: free movement rights

UK BILL INTRODUCED TO END FREE MOVEMENT OF PEOPLE

The United Kingdom has recently passed The Immigration and Social Security Co-ordination (EU Withdrawal) Bill, which was first introduced on 5th March 2020. The Bill, which ends the principle of free movement of people in the United Kingdom, is set to be introduced upon the conclusion of the transitional period on 31st December 2020.

The Bill, passed by 351 votes to 252 on 18th May 2020, has marked concrete developments in the UK’s transition into a points-based immigration system. The UK government clarified in February that points will be awarded for certain requirements such as the ability to speak English, having a job offer from an approved employer and meeting a salary threshold of £25,600. Points may also be awarded for certain qualifications or for working in an area where there is a shortage of workers.

However, the Bill clearly prioritises migrants with “high skilled jobs” which concerningly appears to be determined based on financial thresholds above any other factor.

UK Home Secretary, Priti Patel, has stated “We’re ending free movement to open Britain up to the world. It will ensure people can come to our country based on what they have to offer, not where they come from.”

The Bill includes provisions intended to uphold the historical entitlement of Irish citizens to enter and remain in the UK without the need of seeking permission or leave to do so.

These provisions relating to Irish citizens will operate alongside the Common Travel Area (CTA) regime once EU freedom of movement comes to an end.

Under the CTA, Irish citizens are permitted to move freely between Ireland and the UK and vice versa. This extends to the right to enter, reside, pursue education, take up employment and access State benefits. On the 8th May 2019, both the Irish and UK government signed a Memorandum of Understanding which reiterated their commitment to the CTA and to the maintenance of the derived rights from this agreement.

The Bill has made it clear that the rights being afforded to Irish citizens are more far-reaching than those afforded to other EEA nationals. The UK government’s position is that Irish people will have a general right to reside in the UK which is separate to their rights as EU citizens.

Although this Bill provides legislative certainty to Irish citizens on their rights to enter and reside in the UK without leave, disappointingly the provisions are not yet provided for in comprehensive detail.

The Irish  Human Rights and Equality Commission called for an international treaty in their November 2018 report to formalise common immigration rules and the rights of Irish citizens in the UK during the wake of the uncertainty caused by Brexit.

The Bill places EEA and Non-EEA nationals on the same footing in terms of immigration permissions in the UK.

The free movement of people across 28 countries, considered to be one of the greatest achievements of the European Union, has been significantly reduced by this Bill.

The UK’s new system will take a restrictive economic approach to those considered eligible to travel to the UK and will disproportionately affect those not considered to be “skilled workers” i.e. those who earn less than £25,600 per annum.

This concern caused by this Bill is exacerbated by the ongoing Covid-19 crisis, and the proposed immigration rules will undoubtedly deem many healthcare workers ineligible to reside in the UK.

Despite the Home Secretary referring to the introduction of a fast-track visa for doctors, nurses and other health professions, the passing of this Bill will understandably create a huge amount of worry to those already facing extreme pressure and uncertainty caused by both Brexit and Covid-19.

It’s expected that this Bill will consequently restrict the freedom of movement of UK citizens in both the EU and outside the EU.

It seems that further details of the UK’s move towards a controversial points-based system will likely not be formalised until the conclusion of the transitional period in December 2020.

 

PERVAIS V MINISTER FOR JUSTICE AND EQUALITY [2019] IEHC 403 AND THE DEFINITION OF A ‘DURABLE RELATIONSHIP’

The High Court has delivered judgement in a case that may have a significant impact on applications from the partners of EU citizens under Directive 2004/38/EC and the European Communities (Free Movement of Persons) Regulations 2015,

Partners can fall within the category of “permitted family member”.

In the Directive beneficiaries in this category are described in Article 3(2) as the partner “with whom the Union citizen has a durable relationship, duly attested”.

This definition can be found at reg.5(1)(b) of the Regulations.

In this case the Court asked the question: What is a “durable relationship”?

The Court notes:
The phrase is not defined in the Citizens’ Rights Directive, most likely so as to allow the various member states to proceed by reference to concepts of relationships/durability that suit their respective mores and traditions.

The Court was critical that the Minister has not tried to define or elaborate on this definition by way of Ministerial guidance. The Court found that an untenable situation has arisen whereby no-one (applicants, officials or indeed the court) quite knows what a “durable relationship” is.

It has emerged in the proceedings that a “durable relationship”, as conceived by the Minister involves a ‘sort of’ two-year benchmark, however a lower timeframe can be applied if that is considered to be merited on the evidence in any one case… though quite when the evidence will be (or is) considered to justify the application of a lower timeframe and how a particular lower timeframe is settled upon is entirely unclear.

The Judge went through the EU1A application form and guidance note in some detail (this is the application form on which a permitted family member makes an application for an EU residence card). The Court noted that as the concept of “durable relationship” is not defined, asking someone to provide “Evidence of a durable relationship” is largely, if not completely, meaningless.

The Court also held that the Minister had allowed a confusion to arise between the concept of a durable and attested relationship and the conception of “cohabitation”.

The Court found in this respect:
“… it seems to the court that the concept of “cohabitation” has skewed the Minister’s approach to such applications as are made under reg.5, not least in the suggestion that “tenancy agreements, utility bills” would be suitable evidence of “cohabitation”. Perhaps they would, but reg.5(1)(a) refers to a “durable relationship”, not a relationship of cohabitation.”

The Court outlined a number of scenarios where a durable and attested relationship might exist both with or without cohabitation and made a number of remarks as to the approach of the Minister to require evidence and documents of cohabitation.

The Court answered a number of questions in concluding its judgment, most notably:

Q2. (i) Has Directive 2004/38/EU been adequately transposed into domestic law by the respondents?
(ii) Have the respondents infringed the principle of effectiveness by failing to provide any legislative definition of the concept of “durable relationship duly attested” or any legislative framework/guidance for the test to be applied and the proofs required?

No to (i).

Yes to (ii), save that the court considers that a definition could also be provided in non-legislative guidance (which to this time this has not occurred). The manner of transposition yields the various legal issues described herein and the principle of effectiveness has been breached.

It will be interesting to see how the Minister deals with the Court’s judgement in this matter. It appears that in the Court’s view it would be open to the Minister to deal with this issue by way of statute/ amendment to the regulations or alternatively by way of Ministerial guidelines.

We hope that in light of this judgement the Minister goes on to provide a clear definition of a “durable relationship, duly attested” so that there is more clarity for EU citizens and their partners as to their eligibility for an EU fam residence card.

The full judgment can be read here.