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Changes to Immigration (European Economic Area) Regulations were laid before Parliament on 22 June 2012 and will come into effect on 16 July this year.

The Regulations aim to incorporate some rulings of the Court of Justice of the European Union, yet leave behind some of the most far reaching judgments, such as Zambrano – the right of residence for a primary carer of an EU national.

The regulations introduce a new concept of “derivative right of residence”. This covers primary carer (a parent or legal guardian) of a self-sufficient EEA national child in education in the UK who would be unable to continue his course of studies if the primary carer were required to leave the country. Other persons benefiting from derivative right of residence are non-EEA national children of an EEA national who ceased to be a qualified person, and primary carers and siblings of such children. Interestingly, where responsibility for children is shared in equal measure and one of the carers enjoys the right of residence in the UK, either under the Immigration Rules, or under the EEA regulations, or being a British citizen, the other carer will not be entitled to derivative right of residence.

Unlike other beneficiaries of the right of residence under the Regulations, beneficiaries of the derivative right of residence will not be entitled to permanent residence after five years.

The Regulations helpfully clarify that derivative residence cards will be issued for five years or any other period.

An important change is made in relation to the definition of an EEA national which will now exclude persons who are also UK nationals. Transitional arrangements cover family members of those who applied for an EEA residence card prior to 16 July in reliance on the old provisions.

Those who feel they may be affected by these changes will certainly benefit from legal advice at the earliest opportunity.

Statutory Instrument 2012/1547

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