Regulation 22 of 2006 Regs compatible with Art.24 Directive?

[mcovet]

Just wondering if Regulation 22(2) of the EEA 2006 Regulations is compatible with the Equal Treatment provision in Article 24 of Directive 2004/38.

Regulation 22 refers to the Immigration Act 1971, Schedule 2 paragraphs which treat non-EEA nationals differently to the British Citizens. I was just wondering if this is compatible.

The wording in Schedule 2 is clearly discriminative if applied to the Free Movement Directive

If anyone can be bothered to look up the provisions.

The Immigration Act 1971, Schedule 2
http://www.legislation.gov.uk/ukpga/1971/77

The 2006 EEA Regulations, Reg 22
http://www.legislation.gov.uk/uksi/2006 ... on/22/made

Directive 2004/38/EC, Article 24
http://eur-lex.europa.eu/LexUriServ/Lex ... 123:EN:PDF


Technically, IO must not treat those entering on the basis of Directive differently, however, Regulation 22 is clear that they may, is this allowed?

[EUsmileWEallsmile]

On the face of it this regulation does not appear to be compatible with the directive. It might take a court case to resolve. However as no-one appears to be being particularly inconvenienced by it might just stay as it is. I suspect it is the source of nonEEA family members being asked more questions when traveling alone (no personal experience of that only anecdotal)
The schedule 2 paragraphs should be limited to establishing that a person is entitled to enter the UK under the 2006 (EEA) regulations. Once someone has done that, then that should be that.
A potential issue is that subsequent general immigration legislation can amended schedule 2, so it could become a problem in the future. Schedule 2 has been amended many times since 1971.

[Directive/2004/38/EC]

The wording in Schedule 2 is clearly discriminative if applied to the Free Movement Directive

Can you summarize what is the problem with Schedule 2? Much as I love reading through UKBA law/regs/procedures, it is better to get a hint as to what you think the key problem is.

Poignant excepts from the originals are even better!

[EUsmileWEallsmile]

I'm not the original poster.

Only certain provisions of schedule 2 are applicable to the 2006 regs. The difference is that it applies immediately to all non-EEA nationals on entry, but only to EEA nationals that are suspected of falling foul of public policy, etc. Therefore, it has the potential to treat EU nationals and their family members differently.

The same wording was in the 2000 regulations and they appear to have been copied over.

There's nothing fundamental about schedule 2 to cause a problem, but it gives IO powers to make enquiries. If you read chapter 7 section 3, paragraph 3 it deals with these points.
http://www.ukba.homeoffice.gov.uk/sitec ... schapter7/ It's also worth looking at what the law as written says.

[mcovet]

I'm not the original poster.

Only certain provisions of schedule 2 are applicable to the 2006 regs. The difference is that it applies immediately to all non-EEA nationals on entry, but only to EEA nationals that are suspected of falling foul of public policy, etc. Therefore, it has the potential to treat EU nationals and their family members differently.

The same wording was in the 2000 regulations and they appear to have been copied over.

There's nothing fundamental about schedule 2 to cause a problem, but it gives IO powers to make enquiries. If you read chapter 7 section 3, paragraph 3 it deals with these points.
http://www.ukba.homeoffice.gov.uk/sitec ... schapter7/ It's also worth looking at what the law as written says.

you missed the point. The Schedule says that the IO may do all the dirty work against an individual NOT BEING A BRITISH citizens. So it's not about treating the EEA nationals and their fam members differently to each other, rather that IO may treat non-Brits (be it EEA or non) differently to Brits which contravenes Art.24.

Once IOs establish that the entrant is covered by the Directive, he cannot undertake the examination mentioned in the Schedule to the Imm Act 1971, but that Regulation 22 seems to allow it! Surprised noone has raised this issue before.

"1)An immigration officer may examine any person who is embarking or seeking to embark in the United Kingdom F198. . .for the purpose of determining whether he is [F199a British citizen][F200and, if he is not a British citizen, for the purpose of establishing—(a)his identity;(b)whether he entered the United Kingdom lawfully;(c)whether he has complied with any conditions of leave to enter or remain in the United Kingdom;(d)whether his return to the United Kingdom is prohibited or restricted.(1A)An immigration officer who examines a person under sub-paragraph (1) may require him, by notice in writing, to submit to further examination for a purpose specified in that sub-paragraph."

[Directive/2004/38/EC]

you missed the point.

Actually, in your original post you did not say what "the point" was. That was why I asked for clarification.

The Schedule says that the IO may do all the dirty work against an individual NOT BEING A BRITISH citizens. So it's not about treating the EEA nationals and their fam members differently to each other, rather that IO may treat non-Brits (be it EEA or non) differently to Brits which contravenes Art.24.

Once IOs establish that the entrant is covered by the Directive, he cannot undertake the examination mentioned in the Schedule to the Imm Act 1971, but that Regulation 22 seems to allow it! Surprised noone has raised this issue before.

"1)An immigration officer may examine any person who is embarking or seeking to embark in the United Kingdom F198. . .for the purpose of determining whether he is [F199a British citizen][F200and, if he is not a British citizen, for the purpose of establishing—(a)his identity;(b)whether he entered the United Kingdom lawfully;(c)whether he has complied with any conditions of leave to enter or remain in the United Kingdom;(d)whether his return to the United Kingdom is prohibited or restricted.(1A)An immigration officer who examines a person under sub-paragraph (1) may require him, by notice in writing, to submit to further examination for a purpose specified in that sub-paragraph."

I assume you are mostly taking issue with the paragraph you quote.

But those are pretty much allowed topics also for Eu citizens. UKBA is allowed to establish, for EU citizens and their family members:
(1) their identity (UKBA can require a passport, or suitable other proof as allowed by MRAX!)
(2) whether they have entered the UK lawfully (almost always true for EU citizens and their family, so there is not much to discuss. Unless they have been denied entry for public policy, public security or public health, in which case they are probably illegal)
(3) complied with conditions (not sure what this means for an EU citizen but you can argue that EU citizen needs to be exercising treaty rights)
(4) EU or family member can be denied entry for public policy, public security or public health

It is all pretty benign for EU citizens and their family.

Or am I missing something? Please let us know!

[mcovet]

when I said "you missed the point" I was referring to EUsmiles guy.

Anyway, the issue is actually with 3(1A), namely:
"(1A)An immigration officer who examines a person under sub-paragraph (1) may require him, by notice in writing, to submit to further examination for a purpose specified in that sub-paragraph"
but once a person provides the info required by 3(1) a-d then 1A must not be used.

Paragraph 4 of Schedule 2 is very general and permits IOs excessive intrusion:
"4(1)It shall be the duty of any person examined under paragraph 2 [F201, 2A] or 3 above to furnish to the person carrying out the examination all such information in his possession as that person may require for the purpose of his functions under that paragraph."
Further, 4(3):
"Where under sub-paragraph (2)(b) above a person has been required to declare whether or not he is carrying or conveying [F204, or has carried or conveyed,] documents of any description,
[F205(a)he and any baggage or vehicle belonging to him or under his control; and
(b)any ship, aircraft or vehicle in which he arrived in the United Kingdom,]
may be searched with a view to ascertaining whether he is doing [F206or, as the case may be, has done] so by the immigration officer or a person acting under the directions of the officer"

also illegal in my view!

All that is required of IOs is to confirm whether or not a person is covered by the Directive, whereas the above provisions allow far greater intrusion and affect the concept of freedom of movement!

[EUsmileWEallsmile]

Well now that you came to the point. No there is no discrimination between British citizens and EU citizens as a result of this. The powers in schedule 2 apply to all who enter the UK and are for the purposes of establishing under what capacity the person is to enter the UK be that British citizen or ILR; EU National, EEA national, Swiss national or their family members; or a person who required leave to enter or has been granted leave to enter. Once established all go down their respective routes of entry. The 2006 regulations soften the schedule 2 requirements by stating that a medical examination cannot be made routine for an EEA entrants, etc, and that examination is for the purposes that someone is covered by the regulations.

There is an explicit distinction made between EEA nationals and their family members. Only EEA nationals suspected of falling foul of public policy, etc are affected, but all their family members are. Perhaps that's ok. You may have missed my point.

[Directive/2004/38/EC]

There is an explicit distinction made between EEA nationals and their family members. Only EEA nationals suspected of falling foul of public policy, etc are affected, but all their family members are. Perhaps that's ok. You may have missed my point.

Where is this distinction made? Can you quote it?

[mcovet]

Well now that you came to the point. No there is no discrimination between British citizens and EU citizens as a result of this. The powers in schedule 2 apply to all who enter the UK and are for the purposes of establishing under what capacity the person is to enter the UK be that British citizen or ILR; EU National, EEA national, Swiss national or their family members; or a person who required leave to enter or has been granted leave to enter. Once established all go down their respective routes of entry. The 2006 regulations soften the schedule 2 requirements by stating that a medical examination cannot be made routine for an EEA entrants, etc, and that examination is for the purposes that someone is covered by the regulations.

There is an explicit distinction made between EEA nationals and their family members. Only EEA nationals suspected of falling foul of public policy, etc are affected, but all their family members are. Perhaps that's ok. You may have missed my point.

How can you say there is no discrimination? Are IOs allowed to apply Schedule 2 to British Citizens? NO! There you go, this is clearly discrimination on ground of nationality.

In addition, once the IO establishes under what capacity the other enters, if it's the EU law, they must back off. My point is that if there is an ignorant IO and a passive non-EEA fam member, the IO could easily, even after having seen the RC of the person, still go on with the Schedule 2 checks in contravention of the free movement Directive.

[EUsmileWEallsmile]

Reg 22 (1) says.

22.—(1) This regulation applies to a person who claims a right of admission to the United Kingdom under regulation 11 as—
(a)a person, not being an EEA national, who is a family member of an EEA national, a family member who has retained the right of residence or a person with a permanent right of residence under regulation 15; or
(b)an EEA national, where there is reason to believe that he may fall to be excluded from the United Kingdom on grounds of public policy, public security or public health.

That to me draws a distinction between the two classes of entrants. In the case of EEA nationals there needs to be "reason to believe" that they fall to be excluded, etc; in the case of their family members, etc that itself is reason enough.[/quote]