Adult Zambrano primary carer case succeeds despite Court of Appeal finding test on adult dependents a very demanding one

A person may qualify for a derivative right of residence as the primary carer of a British citizen child or British dependent adult, where requiring the primary carer to leave the UK would force that British citizen to leave the European Economic Area (EEA), ie a Zambrano case. The 2016 EEA regulations do not impose an age limit on the relevant British citizen who is dependent upon their primary carer

 

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EEA nationals and deportation: Inapplicability of Kiarie and Byndloss effect to take sting out of Regulation 33 Certification

Quietly but determinedly the UK Government continues to detain EEA nationals subject to deportation. Some are deported, not on the basis of any crime committed in the UK but by reliance upon a previous adverse criminal history in the country of origin. Removal directions follow shortly after detention, even if the EEA national has a pending appeal yet to be heard in the immigration Tribunal.

 

 

In Wandzel, R (On the Application Of) v Secretary of State for the Home Department (Rev 1) [2018] EWHC 1371 (Admin), the Claimant, a Polish EEA national subject to deportation, sought to argue that following the decision of the Supreme Court in Kiarie and Byndloss, the Regulation 33 certification applied to his case was unlawful.

 

On the facts of his case, the argument failed to properly lift off the ground with the Administrative Court seemingly making short shrift of them, holding that certification was not unlawful. 

 

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Getting a raw deal: When lodgement of an EEA residence card appeal does not prevent removal

Imagine the following scenarios:

 

  • Persons seeking to assert a right of residence as extended family members of EEA nationals exercising treaty rights in the UK;

  • Those the Home Office assert are party to a marriage of convenience with an EEA national with the result that, so far as the Home Office is concerned, the applicant is not a family member of an EEA national

This is what can happen when such persons are served with refusal decisions or following lodgement of appeal against such a refusal:

 

  • Detention with a view to removal and service of a “notice of removal window” (RED.0004 (fresh)). The notice of removal window is usually accompanied by a One-Stop Notice under section 120 of the Nationality, Immigration and Asylum Act 2002 . Section 120(2) provides that the serving of the One-Stop Notice requires the recipient to provide a statement, setting out his or her reasons for wishing to remain in the United Kingdom, and any other grounds on which he or she should be permitted to remain, together with any grounds on which he or she should not be removed from or required to leave the United Kingdom.

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Non EEA family members and retained rights of residence : Pitfalls faced by divorced applicants and how to overcome them

What usually proves problematic for non EEA family members seeking to assert their rights following divorce and upon application, is that having regard to the EEA Regulations and current accompanying Home Office Guidance, in addition to other evidence, they will be required to provide documentation relating to the EEA National Sponsors’ identity and nationality as well as evidence that the EEA national was exercising free movement rights at the time that the parties divorced. An affected applicant’s inability to provide the EEA national’s valid passport or nationality identity card or evidence of the EEA national’s employment at the relevant date of divorce might result in a refusal of that application.

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