Monthly Archives: March 2017

Dangers of judicial over-thinking of EEA Law: Court of Appeal overturns flawed Upper Tribunal decision on proxy marriages

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Overly thinking and excessively analysing  EEA  law  probably results in Upper Tribunal  decisions such as  Kareem [2014] UKUT 24 and TA [2014] UKUT 316 (IAC) (and of course, arguably Sala).

 

It is now evident, following on from the very recent Court of Appeal decision of Awuku v Secretary of State for the Home Department [2017] EWCA Civ 178,  that directly as a result of Kareem,  those non – EEA nationals  who had conducted proxy marriages with  UK resident treaty exercising  EEA nationals, were most likely  denied  the benefit of rights due  to them as family members. This is because for a period of  3 years, following this Upper Tribunal decision,  such  affected persons  would have had their applications and appeals negatively  decided when  they should not have been.

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Obliterating AA: Home Office decision-makers instructed to no longer use “contested’ and ‘non-contested’ definitions in Iraqi security situations

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The  Home Office  must have realised  that their previous August 2016  Policy Notes  could be readily  rubbished  at appeal  as they have now replaced most of those and  published further Notes  on  the security and humanitarian situation in Iraq:Country policy and information note: Security and humanitarian situation, Iraq, March 2017

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A Government’s onslaught on refugees: Safe return reviews, cessation, exclusion, and revocation

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Prior to 9 March 2017,  the general  view certainly was that, Home Office practice (subject to some exceptions), was to routinely grant settlement to  refugees  who had  completed the 5year probationary period.  On  9 March 2017,  the Home Office however published updated  Guidance, Refugee Leave  dated  2 March 2017, firmly indicating  that,  “All those who apply for settlement protection after completing the appropriate probationary period of limited leave will be subject to a safe return review with reference to the country situation at the date the application is considered”.

 

Not only that but that  refugees can  be subject to the  review procedure at any  juncture whilst holding  refugee status, “ A person’s case may also be reviewed at any point in the process either when triggered by their actions, for example, they are convicted of a serious crime, or in light of a significant and non-temporary change in conditions in their country of origin such that they no longer need protection”.

 

 

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Court of Appeal emphasises that the former spouse of an EEA national must be “exercising treaty rights” at the date of the divorce

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Just when we thought we had seen the back of the  2006 EEA Regulations, it appears that  the Court of Appeal is  not  quite yet  done with their interpretation: the  Court  of Appeal is  still having to  grapple  with arguments put forward  that  the UK Government did not  correctly  implement the parent Citizen’s Directive via the 2006 Regulations.

 

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The New 2016 EEA Regulations: Fertile Ground for Removal, Expulsion and Deportation of EEA Nationals and their Family Members

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On 1 February 2017, the EEA Regulations 2006 were revoked and replaced by the EEA Regulations 2016.

 

The Home Office position is this: “EEA Regulations 2016 in large part consolidate and clarify the provisions, modernise the language used and simplify terms where possible in line with current drafting practice. The EEA Regulations 2016 reflect the margin of appreciation enjoyed by member states to determine their own requirements of public policy and public security, for their own purposes, from time to time. They also make a number of substantive changes, including in respect of public policy and public security decisions”.

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The effect and impact of these sweeping new changes upon EEA nationals and their family members,  is that they are  highly liable to  removal, expulsion or deportation: not only for failure to exercise treaty  rights in the UK,  but also for   engaging  in certain types of behaviour. The reach of the new regulations is such that  even those with impending prosecutions  as well as those who have not  committed any crime  may be  caught by the new changes,  purely on  the basis of  decisions  which can be taken on preventative grounds.

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