We always talk about “free movement” and “the right of EEA nationals to reside freely in the UK”… However, what does that really mean? While free movement is one of the founding principles of the EU, nationals of European countries are not aware of the limitations, restrictions and conditions to free movement depicted by the EU Treaties and legislation. In the UK, these are implemented into UK law by the Immigration (European Economic Area) Regulations 2006.
The Regulations provide that EEA nationals and their family members can move to the UK initially for a period of three months, without any conditions other than having a passport or identity card. However, this is a qualified right and removal may be justified on the grounds of public policy, public security or public health. Also, an EEA national or their family member who becomes an unreasonable burden on the social assistance system of the UK will no longer have the right to reside in the UK.
After three months, the Regulations provide that EEA nationals and their family members can continue residing in the UK provided they satisfy certain conditions: that they are either workers or self-employed, self-sufficient provided they have health insurance, or students provided they have health insurance and they are not be a burden to the social assistance system. Jobseekers can also reside in the UK after three months but they must show they have a good prospect of finding work. EEA nationals who satisfy all, or any, of said conditions are defined as “qualified persons” under the Regulations. If an EEA national does not satisfy above said conditions, and therefore is not a qualified person under said Regulations, then they do not have a right to reside in the UK and can be removed under the Regulations. The dilemma here is that many EEA nationals would feel that a decision to be removed on such grounds would be irrational and unfair because they are EEA nationals. However, they are not aware that the right of free movement in the EU is indeed subject to restrictions and limitations, albeit it has not been enforced for many years. It is also possible to expel EEA nationals on other reasons, including that they rely on social assistance unless they have a pending application for such assistance.
It seems the Home Office is keen on enforcing the removal provisions under the existing EEA Regulations and applying the limitations on the free movement of EEA nationals. That does not mean that removal decisions made by the Home Office on the basis that an EEA national does not have a right to reside in the UK because they are not a qualified person under the Regulations are necessarily illegal. The problem is that for decades hardly any EEA nationals ever took steps to secure their rights in the UK. Perhaps because EEA national were not aware of their rights?
For example, there are EEA nationals living in the UK for twenty years or more but they never considered to obtain residence documents confirming and certifying their legal residence in the UK. While many EEA nationals are shocked with Home Office decisions and are in denial of the possibility that the Home Office can enforce the removal provisions under the Regulations, the truth is that freedom of movement is not an absolute right under European law, the immigration process is complex and that the UK wishes to control its borders and reduce immigration from the European Union. This brings the most worrying question: what will happen to EEA nationals who have been living here for decades and they were not aware of their rights?
Written by: Olga Leimoni
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