“Sala moment”:
Category Archives: EU Free movement
Getting a raw deal: When lodgement of an EEA residence card appeal does not prevent removal
Imagine the following scenarios:
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Persons seeking to assert a right of residence as extended family members of EEA nationals exercising treaty rights in the UK;
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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:
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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.
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.
Righting a wrong wrought by the Upper Tribunal:Court of Appeal decides Sala was wrongly decided
The next time that the Upper Tribunal fixates on disturbing settled EEA law, perhaps they should consider taking a very long pause so as to avoid reaching decisions which potentially result in injustice. 
Risk of re-offending and denial of guilt: Court of Appeal dissects OASys Report, concludes EEA family member with permanent residence can be deported
The outcome in Kamki v The Secretary of State for the Home Department [2017] EWCA Civ 1715 (31 October 2017) emphasises among other issues, that it may prove fatal to an appeal if a deportee does not accept responsibility in relation to the offences in which he is found guilty and consequently undertakes no relevant offender courses in prison or other work to address his offending behaviour. Such issues, in an EEA deportation appeal go to the root of the matter as regards whether the Secretary of State or Tribunal may find on that basis that the personal conduct of the person concerned represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.
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EEA deport first, appeal later Guidance: Regulation 33 not undermined by Supreme Court decision in Kiarie & Byndloss
The Home Offices’ current position is that the recent Supreme Court judgment in Kiarie and Byndloss, R (on the applications of) v Secretary of State for the Home Department [2017] UKSC 42 does not undermine the application of regulation 33 of the 2016 EEA Regulations.
The Home Office Policy Guidance Regulations 33 and 41 of the Immigration (European Economic Area) Regulations 2016 was amended on 3 August 2017 in the following regards:
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Changes to reflect the Supreme Court judgment in Kiaire and Byndloss
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Changes to reflect the Court of Appeal judgment in OO (Nigeria)
