Category Archives: EU Free movement

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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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

Posted on by Standard 1

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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New Guide for the end of 2016!

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Click the link below and open the pdf guide to immigration changes made in November and December 2016.

 

There are even further immigration changes expected in 2017 and in particular with the coming into force fully in February 2017 of the 2016 EEA Regulations, both immigration practitioners and lay applicants are expected to be fairly au fait with the changes so as to be able to prepare applications with a fair chance of success.

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A Guide to the November and December 2016 changes

Can an EEA national be compulsorily transferred from the UK to serve his sentence in his own country?

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The Upper Tribunal  has sought to answer this question in the case of Restivo (EEA – prisoner transfer) Italy [2016] UKUT 449 (IAC).

 

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Of Surinder Singh, McCarthy and exercise of treaty rights: Insufficient evidence defeats damages claim for breaches of EU law

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EU familyThe case of Benjamin & Anor, R (on the application of) v Secretary of State for the Home Department [2016] EWHC 1626 (Admin)  considers the Surinder Singh  principles,  both in the context of an entry clearance application for an EEA family permit as well as subsequent attempts  to  seek to assert a  right  of entry at port itself.

In Case C-370/90 R v Immigration Appeal Tribunal and Surinder Singh ex parte SSHD [1992] ECR I-4265, the CJEU held that where a national of one EU Member State exercises an EU law right to work or pursue self-employed activity in another EU Member State, she is entitled (on her return to her “home” Member State) to be joined or accompanied by a spouse who is a third-country national, on terms no more onerous than those that would apply if she were seeking to have her spouse join her in a Member State other than her home Member State.

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