Category Archives: EU Free movement

New 2016 EEA Regulations: Failure to submit a valid national passport invalidates residence card application

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Although to be applauded for the determined efforts in  seeking a construction of the EEA Regulations  that  favour the  Claimant, the  arguments,  considerations and reasoning in  Ullah, R (On the Application Of) v The Secretary of State for the Home Department [2017] EWHC 1999 (Admin) (31 July 2017) appear unnecessarily  complicated,   with accompanying repetitious  reasons given in order to justify the decision.

 

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Sadovska in the Supreme Court and how the Home Office approach marriages of convenience/sham marriages in practise

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“Marriages of convenience are, for immigration purposes, synonymous with sham marriages”, so states Home office policy guidance (Marriage Investigations).

 

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Temporary admittance applications by deported EEA nationals to have appeals heard in the UK: Kasicky doubted

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Strangely, although the case of R (on the application of Gabor) v Secretary of State for the Home Department (Reg 29AA: interpretation) [2017] UKUT 287, was promulgated on 25 October 2016,  it appears to have only been published on 12 July 2017 by the Upper Tribunal.  A delay  of 8months- even more perplexing as the judgment itself is relatively short.

 

 

As to the effect of the decision, for practical purposes, it does not matter whether the  temporary admission application considered in Gabor was under the now redundant 2006 EEA Regulations via  Regulation 29AA or Regulation 41 of the new 2016 Regulations.

 

 

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Inbuilt obstacles and mechanisms that the Home Office use to defeat, deny and deter immigration claims

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On the surface, all that is required to enable preparation and submission of a successful application to the Home Office is self-evident.  After all, the application forms themselves are free and readily accessible (postal or on-line, as relevant). These applications forms indicate what documents are required to support an application. Additionally, voluminous Home Office guidance policy is transparently available for leisurely perusal in advance of submitting an application. With all this in sight, in some categories, it seems there  isn’t even any need to consult a legal practitioner prior to submission of an application.

 

There are however in-built laws, policies and procedures in the assessment process of immigration applications, such that a seemingly straightforward application may end up falling foul of these provisions.

 

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Whether it is unreasonable to expect a British Citizen Child to leave the UK: Divergent approach from the Upper Tribunal and Court of Appeal

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The Court of Appeal’s decision in Secretary of State for the Home Department v VM (Jamaica) [2017]  EWCA Civ 255  was published on 11 April 2017.  Among other matters, the appeal concerned the effect of the EU rights of children who are British citizens in relation to the proposed deportation of a foreign criminal.

 

The Upper Tribunal’s decision of SF and others (Guidance, post–2014 Act) Albania [2017] UKUT 00120(IAC) was published on 22 March 2017. The issue was whether because of the nationality of the youngest child( a British citizen),  it would be unreasonable to expect that child to leave the United Kingdom with his other  family members who  had no leave to remain in the UK.

 

Considered together, these two cases make very interesting reading, however it might be that in light of the decision in VM, the Upper Tribunal may soon  need to  undertake some “housekeeping duties”  in relation to their previous decisions.

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Expedition, Reconsideration of EEA applications and EEA Appeal Rights under the 2016 Regulations

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Following an adverse decision being made by the Home Office, an affected person may be torn between re-applying for residence documentation, requesting reconsideration or appealing an EEA decision.  In practice however, requesting that the Home Office re-consider a decision made on deportation grounds, rather than submit an appeal would be pure folly: the Home Office are very likely to maintain the same negative decision and most importantly, the failure to appeal would likely leave the EEA national or their family member subject to deportation without any other viable alternative remedy and liable to imminent removal.

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