European Union

In KG (Sri Lanka) and AK (Sri Lanka) [2008] EWCA Civ 13 (25 January 2008) the Court of Appeal considered Article 3 (2) of Council Directive 2004/38/EC.  The entire Directive has been implemented into the domestic law of the United Kingdom by the Immigration (European Economic Area) Regulations 2006.  

As part of the continuing harmonization of the determination of asylum applications by member states of the European Union (the “EU”) the Asylum (Procedures) Regulations 2007 and HC 82, a statement of changes in the immigration rules, both came into force this month.

The Asylum and Immigration Tribunal has held that for persons seeking admission to the United Kingdom as the family member of an EEA national possession of an EEA family permit is not a necessary requirement of the Immigration (European Economic Area) Regulations 2006.

In June, we expressed concern that some courts were seeking to reintroduce the “truly exceptional” test in relation to claims under Article 8 of the European Convention on Human Rights (ECHR). In a welcome decision, AG (Eritrea) v Secretary of State for the Home Department [2007] EWCA Civ 801, the Court of Appeal has expressed concerns about “continuing controversy” about how the immigration courts should now deal with Article 8 claims and has set down clear guidance for the interpretation of the House of Lords’ judgment in Huang.

EU law has become a valuable instrument for EEA (European Economic Area) nationals and their non-EEA family members when exercising their rights to live, work and settle in the UK. However, the transposition of EU law into UK domestic law by the Immigration (EEA) Regulations 2006 has also caused confusion and concerns.

The Commission of the European Union (EU) has submitted a proposal for European Union legislation (a directive) providing for common sanctions against employers of third country nationals staying illegally in EU Member States. The UK Home Office has prepared an Explanatory Memorandum on the proposal, signed by the Minister of State for Nationality, Citizenship and Immigration in the UK Home Office, Liam Byrne MP.

The Memorandum says that the UK government:

‘supports the general purpose of the draft Directive, which is that Member States introduce, coordinate and enforce similar measures on the prevention of illegal migrant working.’

The UK is not obliged to sign up to the new European legislation if and when it comes into force but has the option of opting in to the new legislation if it wishes to do so.  At this early stage, the Explanatory Memorandum gives no indication of whether it will exercise its power to ‘opt-in’.

Gherson and Co. recently acted for an applicant in a successful appeal against refusal of a residence card as an extended family member of a European Economic Area (EEA) national. Alan Briddock was counsel in the case, instructed by Kathryn Bradbury of Gherson and Co.

As part of the effort to enable and enforce the principle of free movement throughout the EEA for workers who are nationals of the EEA, European Community Law requires workers to have the right to be joined in the UK by their family members and ‘beneficiaries’. The term beneficiaries encompasses, as in this case, partners and same sex partners in a ‘durable relationship’ with the worker. The meaning of this phrase causes many disputes but was not at issue in the instant case. A Residence Card is issued to beneficiaries as confirmation of their rights to reside in the UK under European Community Law.

Ms *, who is not herself an EEA national, applied to the Home Office on the basis of her same sex partnership with an EEA national for a Residence Card as confirmation of her right to residence under European Community Law. The Home Office refused, stating as their only reason that, even if the applicant was in a durable same sex relationship for the purpose of the Immigration (EEA) Regulations 2006, it did not ‘appear appropriate’ to issue her a Residence card given that she did not at the time of the application have valid leave to remain in the United Kingdom. 

It appears that this response was the result of an instruction to caseworkers which was intended to have blanket application: this was confirmed by a Home Office representative in another case (unreported, March 2007) .

Whilst, under the Immigration (EEA) Regulations 2006 the Home Office has discretion to issue a Residence Card if, in all circumstances, it appears appropriate to do so, unlawful residence in the UK is not specifically provided for as a permitted basis for refusal. However, the Home Office is under a duty, under the Immigration (EEA) Regulations 2006, to undertake an ‘extensive examination of the personal circumstances of the applicant’ and, if the applicant is refused, to give reasons justifying the refusal unless this is contrary to the interests of national security’.

Ms * appealed. Important among the facts of her case were that she had made every effort to remedy her situation, including seeking help from three Members of Parliament (MPs), but had been let down, including by previous representatives.

At her appeal the Home Office did not dispute that she was in a durable relationship. Ms * had entered the UK as a student. While she still had leave to be in the UK, she applied for Indefinite Leave to Remain (ILR). When that was refused she had lodged an appeal. Although she had been in touch with her previous representatives at the time when her appeal was heard, she had not been made aware of her appeal hearing and had not therefore attended it.

The immigration judge accepted that she had made every effort to obtain from her then legal representatives and the Home Office further information regarding the progress and outcome of her application and the then state of her leave to remain in the United Kingdom. He accepted that once she obtained proper legal advice and representation, she found out what had happened to that application and then made her present application. The judge felt it significant that her representatives made the Home Office aware of her history of making every effort to find out her immigration status and resolve it, in time for the Home Office to make its decision.

The immigration judge found that there was no evidence to suggest that the Home Office considered or otherwise took into account the various issues raised by Ms * about her immigration history in the United Kingdom, or her personal circumstances more generally.

The immigration judge concluded that the Secretary of State for the Home Office had

‘failed to demonstrate giving reasons for his refusal, any or any extensive examination of the appellant’s personal circumstances before refusing her application. To merely assert that the appellant had no valid leave to remain in the UK at the time of her application and to fail to provide particulars or any or any other issue considered by him, does not, in my judgement, meet the requirements of, among others, Regulations 8, 17, 20 and 21 of the Immigration (European Economic Area) Regulations, 2006.’

The Home Office Guidance of January 2006 covers those who wish to apply from within the UK under the Association Agreement between the European Community and Turkey (the Ankara Agreement or ECAA agreement). 

In Jia v Migrationsverket [2007] EUECJ C-1/05, the European Court of Justice (ECJ) gave judgment in a case with direct relevance to the rights of dependent relatives seeking to join European Economic Area (EEA) nationals exercising free movement rights within the United Kingdom. While the case is clearly significant it is likely, as discussed below, to leave important issues for future clarification or decision by the ECJ.

On 24 May 2007, the UK Border and Immigration Agency (BIA) and Department for Work and Pensions (DWP) published statistics on Bulgarians and Romanians in the UK during the first three months since those countries joined the European Union (EU). The report covers the period January to March 2007.