Category Archives: EU Free movement

EEA Deportations: Enhanced Levels of Protection And Periods of Activity, Residence and Imprisonment

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The Court of  Appeal’s  recent decisions in Warsame v The Secretary of State for the Home Department [2016] EWCA Civ 16 and Secretary of State for the Home Department v Vassallo [2016] EWCA Civ 13  considered the circumstances in  which reliance can be  placed upon   enhanced levels of protection provided within the Citizen’s Directive  in relation to expulsion of   EEA nationals  subject to deportation proceedings.

The central question in Vassallo was  whether the Tribunal was  correct in law to find that Mr Vassallo had acquired a right of permanent residence.  The  Court of Appeal  having   full regard to the  Citizen’s Directive,  relevant  CJEU caselaw and  the 2006 EEA Regulations,  decided  that having regard to the  character of the  EEA national’s  residence in the UK,  after a historical  accrual of  the requisite 5years,  and despite Mr Vassalo having  resided  in the  UK  for  over 50years,  no  right of permanent residence  could be relied upon.

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Upper Tribunal Considers that Scope of Article 8 Is Elastic Enough Thereby Enabling a By- Passing of the Adult Dependent Relative Rules by Reference to Exceptional Circumstances

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Where there had been lingering doubts  as to whether an “adult dependant relative appeal” can ultimately succeed on the basis of Article 8 of the ECHR before the Tribunal, the newly reported decision of Dasgupta (error of law – proportionality – correct approach) [2016] UKUT 28 (IAC),   answers this question in the positive.

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EU Citizens Directive and 2006 Regulations Strictly Applied: Temporary Break in Economy Dependency Upon EEA National Renders Right to Permanent Residence Unattainable

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The Court of Appeal,  in Secretary of State for the Home Department v Ojo [2015] EWCA Civ 1301 has strictly interpreted Regulation 7(1) of the EEA 2006 Regulations with the result that an adult  non – EEA family member  previously dependant upon her EEA national mother  was unable to continue  relying  upon EEA law to show that  she had acquired a right of permanent  residence  in the UK  since during her period of  residence here  she had  temporarily been economically independent  from her mother…

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Home Office Attempt to Subvert the EEA Legislative Scheme Fails: EEA Permanent Residence Not Lost By Reason of Criminality or Imprisonment

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The Home Office have recently been on a downward streak  in  the Court of Appeal  in terms of issues in relation  to EEA law and in particular EEA deportations.

Read my post regarding the recent judgments from the Court of Appeal on the issue in the cases of:

  • Agho v The Secretary of State for the Home Department [2015] EWCA Civ 1198
  • Secretary of State for the Home Department v Straszewski [2015] EWCA Civ 1245
  • AA (Nigeria) v Secretary of State for the Home Department [2015] EWCA Civ 1249

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Regulation 24AA and 29AA: Masalskas, R (on the application of) v Secretary of State for the Home Department (Regulations 24AA and 29AA EEA Regs) (IJR) [2015] UKUT 677

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The now reported  Upper Tribunal decision  regarding an  EEA Deportation  Regulation  24AA Certification  judicial review challenge in  which I applied for and obtained an interim order suspending removal of the EEA national  whilst at the same time  settling  the grounds  of claim, upon which  permission for judicial  review was granted leading to the Upper Tribunal hearing  the claim:

Masalskas, R (on the application of) v Secretary of State for the Home Department (Regulations 24AA and 29AA EEA Regs) (IJR) [2015] UKUT 677-:

“1. A decision to certify a person’s (P’s) removal under regulation 24AA of the European Economic Area Regulations 2006 operates as a temporary measure that can be applied only for so long as there is a statutory appeal which could be brought in time or which is pending.

2.Regulation 24AA is a discretionary measure whose implementation is currently subject to Home Office guidance entitled “Regulation 24AA Certification Guidance for European Economic Area deportation cases”.

3.EEA decisions to remove or deport taken against EEA nationals do not have automatic suspensive effect. No removal can take place, however, until an applicant has had a decision on any application made for an interim order to suspend removal.

4.As with the very similar power in section 94B to the Nationality, Immigration and Asylum Act 2002, when deciding whether to certify the removal of a person under regulation 24AA the avoidance of “serious or irreversible harm” is not the sole or overriding test. It is also necessary for the decision-maker to assess whether removal of P would be unlawful under section 6 Human Rights Act 1998 (HRA): see Kiarie, R (on the application of) and Another v Secretary of State for the Home Department [2015] EWCA Civ 1020 .

5.Whilst the assessment pursuant to section 6 HRA requires a proportionality assessment, it is one that is limited to the proportionality of removal for the period during which any appeal can be brought in time or is pending.

6.P’s right under regulation 29AA to be temporarily admitted to the UK in order to make submissions in person at the appeal:

(a) is qualified by regulation 29AA(3) (“except when P’s appearance may cause serious troubles to public policy or public security”); and

(b) does not extend to the pre-hearing stages of the appeal”.

My comments on the case, on 26 November 2015, can be  viewed  at :

https://ukimmigrationjusticewatch.com/2015/11/26/eea-deportation-regulation-24aa-certification-judgement-a-rubber-stamping-of-kiarie-byndloss-in-conjunction-with-section-94b/

 

Factors Relating to Deterrence and Public Revulsion of the Offender’s Conduct Generally Inapplicable to EEA National’s Subject to Deportation

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The Home Office has within the  last year ( more  so  since the coming into force of the Immigration Act  2014) increasingly sought to put in place  measures to  deport as many foreign criminals as possible from the  UK but in so doing,  seem to be deliberately blurring   the line between the  relevant applicable law  and principles that apply when deporting a foreign national criminal  as opposed to an EEA national  criminal subject to deportation. There has,  for example,  been  a  deliberate mirroring  of  the Section 94B certification,  which  applies to non- EEA foreign national criminals    and the  Regulation 24AA Certification  that applies to  EEA nationals similarly  subject to deportation – the  intention  being to  deny deportees  an in – country right of appeal.   In  terms of relevant   litigation  in this regards for both categories of deportees, the Secretary has so far  been winning,  as in Kiarie, R (On the Application Of) and Another v The Secretary of State for the Home Department [2015] EWCA Civ 1020 in relation to section 94B and  as regards Regulation 24AA, of which  judgment was handed down by the Upper Tribunal on 26 November 2015,   following a judicial review claim. The judgment is not yet in the public domain.

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