Appendix 1
S.I. 2012/1547: memorandum from
the Home Office
Immigration (European Economic Area) (Amendment)
Regulations 2012 (S.I. 2012/1547)
1. This Explanatory Memorandum has been prepared
by the Home Office and the UK Border Agency at the request of
the Joint Committee on Statutory Instruments ("the Committee")
in a letter dated 11 July 2012.
2. The Committee has requested information from
the Home Office on the following points:
"1. Explain why the following insertions
using the word "will" (which appears to predict what
will happen but not normally to impose requirements) are made
in the Immigration (European Economic Area) Regulations 2006,
which elsewhere use terms in equivalent provisions that appear
unambiguously to impose requirements (such as "shall"
or "is to") -
(a) regulation 12(6) of those Regulations
as substituted by paragraph 5(c) of Schedule 1;
(b) regulation 13(3) and (4) of those Regulations
as substituted by paragraph 6(b) of Schedule 1;
(c) regulation 14(5) of those Regulations
as substituted by paragraph 7 of Schedule 1;
(d) regulation 15(3) of those Regulations
as substituted by paragraph 8(c) of Schedule 1;
e) regulation 15A(8) and (9) of those Regulations
as inserted by paragraph 9 of Schedule 1;
(f) regulation 15B(2), (3) and (4) of those
Regulations as inserted by paragraph 10 of Schedule 1; and
g) paragraph 6(4) of Schedule 4 to those Regulations
as substituted by paragraph 25 of Schedule 1.
2. Explain in addition why the amendments
made by paragraphs 5(c), 6(b) and 8(c) of Schedule 1, each of
which affects provisions previously containing express indications
of prioritisation of conflicting propositions, leave those provisions
without parallel express indications so far as the amendments
are concerned."
Question 1
3. When drafting the Immigration (European Economic
Area) (Amendment) Regulations 2012 ('the 2012 Regulations') the
department sought, wherever possible, to minimise the use of the
legislative "shall". This decision was taken in order
to reflect the current Office of Parliamentary Counsel practice,
as set out in paragraph 17 of Part 2 of the Office of Parliamentary
Counsel Drafting Guidance. On reflection though, the department
agrees that, in view of the drafting of the Regulations being
amended and the context in which the words appear, it would have
been better to have made the substitutions and insertions to regulations
12(6), 15A(8), 15B(2) and paragraph 6(4) of Schedule 4 of the
Immigration (European Economic Area) Regulations 2006 ('the 2006
Regulations') using the words "is to" (or a variant
thereof) instead of the word "will".
4. The department does not consider that this
drafting decision affects the operation of the provisions in question;
however we apologise to the Committee and will seek to ensure
that in future care is taken to ensure that the word "will"
is not used inappropriately.
5. As to the use of the word "will"
in the substitution of, and insertions made to, regulations 13(3),
13(4), 14(5), 15(3), 15A(9), 15B(3) and 15B(4) of the 2006 Regulations,
the department has carefully reconsidered the drafting of these
provisions but remains of the view that the word "will"
has been used appropriately in these instances. Unlike the other
provisions helpfully drawn to the department's attention by the
Committee, regulations 13(3), 13(4), 14(5), 15(3), 15A(9), 15B(3)
and 15B(4) provide for the consequences of a future event (for
example the loss of a right of residence on the making of a decision
by the Secretary of State) and it therefore seems appropriate
to use the word "will" rather than the word "shall"
or the words "is to be".
Question 2
6. The amendments made to the 2006 Regulations
by paragraphs 5(c), 6(b) and 8(c) of Schedule 1 to the 2012 Regulations
do not make provision for prioritisation as between the provisions
which they insert and the provisions of the 2006 Regulations which
are amended because there is not, in the department's assessment,
any potential conflict between those provisions such as would
require prioritisation.
7. Paragraph 5(c) of Schedule 1 to the 2012 Regulations,
which inserts paragraph 6 into regulation 12 of the 2006 Regulations,
creates a new ground for refusing to issue an EEA family permit.
This ground for refusal sits alongside the ground for refusal
provided for by regulation 12(5) and either, or both, of the grounds
could be relied upon as a basis for refusing to grant an EEA family
permit. On this basis no prioritisation would appear to be necessary.
8. The same analysis would appear to the department
to apply to the provisions inserted into the 2006 Regulations
by paragraphs 6(b) of Schedule 1 to the 2012 Regulations. Again
the provisions being inserted create conditions the satisfaction
of which will lead to the loss or denial of the right which the
regulation creates (here an initial right of residence). Paragraph
(3) of regulation 13 of the 2006 Regulations provides that the
initial right of residence will cease where the person in question
becomes an unreasonable burden on the UK's social assistance system,
while paragraph (4) provides that a person who would otherwise
have an initial right of residence under regulation 13 will not
be entitled to reside pursuant to that regulation where the Secretary
of State has made a decision under regulation 19(3)(b), 20(1)
or 20A(1). In light of the fact that the provisions create these
quite distinct means of losing the initial right of residence
there would not seem to be any need to create any prioritisation
between the two; if the right is lost on one basis then the other
provision will no longer be relevant.
9. Paragraph 8(c) of Schedule 1 to the 2012 Regulations
replaces the existing paragraph (3) of regulation 15 of the 2006
Regulations. Like the provision it replaces, the new paragraph
(3) makes it clear that a right of permanent residence which would
otherwise arise under regulation 15 will not arise where a given
event occurs (in the case of new paragraph (3), the making of
a decision by the Secretary of State under regulation 19(3)(b),
20(1) or 20A(1)). While the wording of the provisions is different
from the previous paragraph (3), the legal effect would appear
to the department to be the same. On this basis there would appear
to be no need for any further provision as to prioritisation.
Home Office
17 July 2012
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