Chapter 6

6.3.1 Union citizens' rights of entry and residence

A number of cases have concluded that a British Citizen’s right of residence in the UK is derived from national law, not EC law. This was the case even when that British Citizen had dual nationality with another EU state. Thus in McCarthy v SSHD [2008] EWCA Civ 641 the appellant, who had dual British/Irish nationality was not residing in the UK, where she had lived all her life, pursuant to the Citizens’ Directive. Therefore her Jamaican husband could not obtain a right of residence as the family member of an EU national under the Directive. There was a similar conclusion in EN and AN (EEA reg 12: British Citizens) Kenya [2008] UKAIT 00028 in which the Kenyan children of a woman who married a dual British/Irish national and then moved with him to Northern Ireland could not benefit as the family members of an EU national. He was residing in the UK pursuant to domestic not European law.

6.3.1.1 Permanent residence

GN has made a complaint to the European Commission, which stands by the opinion given in the letter to Kingsley Napley, i.e. the argument that GN himself made to the Tribunal. (ILPA mailing 08.06.01)

In Secretary of State for Work and Pensions v Lassal [2009] EWCA Civ 157 the Court of Appeal has referred a question to the ECJ:

Is Article 16(1) of Directive 2004/38 of the European Parliament and the Council of 29 April 2004 to be interpreted as entitling that EU citizen to a right of permanent residence by virtue of the fact that she had been legally resident, in accordance with earlier Community law instruments conferring rights of residence on workers, for a continuous period of five years which ended prior to 30 April 2006 (the date by which Member States had to transpose the Directive)?

Ms Lassal had completed five years residence beginning in 1999, then left the UK for ten months, then returned. The Court of Appeal did accept in this case that qualifying residence could begin before 2000. This does not solve the problem affecting GN and discussed in the Textbook for workers from new Member States. Ms Lassal was a French national, and so had EC rights prior to 2000 on which she was relying.

In LG and CC v SSHD [2009] UKAIT 00024 the AIT held that the right of permanent residence, once attained by five years residence, was not lost through time spent in prison.

6.4.1.2 People seeking work

In Vatsouras and Koupatantze C- 22 and 23/08 the ECJ confirmed that a worker was anyone who had worked in a Member State, as long as their work met the ECJ’s definition of work, as set out in previous case law. There were no other hidden criteria which a Member State could apply. The length of time an individual worked was irrelevant to their status as worker. Once economic activity ceased, a worker or self-employed person would retain their status for at least six months (and possibly longer if they were seeking work and had a real chance of finding it).

6.5.2 Family members' rights of entry and residence

Metock and others v Minister for Justice, Equality and Law Reform Case C-127/08 is a landmark decision on the rights of family members of Union Citizens according to Directive 2004/38, the Citizens Directive. The decision was made in July 2008 and affects the UK’s implementing regulations, parts of which become unlawful by virtue of this judgment.

The case concerned four third country nationals who unsuccessfully applied for asylum in Ireland. Before their applications were refused they had married nationals of other EEA countries who were living in Ireland. Mr Metock was Cameroonian and married to a British national working in Ireland. Mr Ikogho, whose nationality was not specified, was also married to a British national working in Ireland. Mr Chinedu and Mr Igboanusi were Nigerian, Mr Chinedu was married to a German national working in Ireland, and Mr Igboanusi to a Polish national working in Ireland. All were refused residence cards as the spouses of a Union citizen, on the ground that they did not satisfy the requirement of prior lawful residence in another Member State as required by Ireland’s European Communities (Free Movement of Persons) (No 2) Regulations 2006, which implemented Directive 2004/38 into Irish law.

The ECJ found that:

EEA family permits (the equivalent of entry clearance for an EEA application) must be issued to third country national family members of EU citizens who are accompanying or joining the EU citizen in the host state. This may not be made subject to a condition (as the UK does) that the family member has been resident in another Member State, whether lawfully or not, before arriving.
The right to family reunification in the host State does not depend on where or when family life was established.

The effect is that provisions such as that in the UK regulations requiring prior lawful residence in another EU state are unlawful. The judgment also means that EU provisions on admission of relatives apply, not domestic ones. Thus, where UK immigration rules on the entry of relatives conflict with EU provisions, when the entrant is joining an EU national, the EU approach must be applied. An example would be the UK’s demanding rules on the entry of parents (see chapter 9). These could not apply to the parent of an EU national joining them in the UK if the EU national was exercising Treaty rights. The EU’s only test is that of ‘dependency’.

The decision in Akrich no longer has effect after this judgment. The effect of Metock is yet to be fully worked out. The 2006 regulations will be amended to remove the requirement of prior residence in the EEA from regulations 8 and 12 so give effect to Metock. In the meantime, in Bigia [2009] EWCA Civ 79, the Home Office conceded that these requirements could not be applied to family members of EEA nationals.

The UK tribunal has distinguished Metock in HB (EEA right to reside – Metock) Algeria[2008] UKAIT 00069, but it remains to be seen how Metock is applied in the higher courts.

6.5.3 Extended family members

Bigia proceeded on the application of Metock to extended family members, and the Court held that previous guidance (in KG (Sri Lanka) [2008] EWCA Civ 664) remained validon the factual circumstances in which extended family members could be admitted.

6.6.3 Residence without the Union Citizen

In MJ and others (Art. 12 reg.1612/68 – self-sufficiency?) [2008] UKAIT 00034 the AIT held that the family member bears the burden of proving that the Union Citizen has left the country. Where that person cannot be traced, this is particularly difficult.

6.9 Public Policy Exceptions

The 2006 regulations were amended with effect from 1st June 2009 to allow for the exclusion of EEA nationals on public policy grounds (The Immigration (European Economic Area) (Amendment) Regulations 2009 SI 1117).

6.9.2.3 Protection for Long Term Residents

In HR (Portugal) v SSHD [2009] EWCA Civ 371 the Court of Appeal held that time spent in prison did not count towards achieving permanent residence, now towards the ten years for attaining a high standard of protection against deportation.

In LG (Italy) v SSHD [2008] EWCA Civ 190 the Court of Appeal held that ‘imperative grounds of public security’ did not necessarily connote a terrorist threat. However, they implied a qualitative difference from the less stringent grounds applicable to those with shorter residence. The actual application of this ground had not been fully elucidated either by the Home Office or the ECJ. The Home Office’s policy was not coherent. In this case the appellant had committed a serious crime of violence. However the difference between ‘serious’ and ‘imperative’ was not only one of degree. The court remitted the case to the AIT to be redetermined, but without further guidance on just what ‘imperative’ meant. This was a matter which the court thought needed to be determined in a coherent way across the EU, and might be suitable for a reference to the ECJ.

After the Court of Appeal judgment the Secretary of State had sent out a detailed questionnaire about the legislation and practice of other Member States but responses had not revealed a consistent approach. The AIT endorsed the Court of Appeal’s views on the meaning and application of ‘imperative grounds of public security’. Home Office guidance suggested that a sentence of five years or more would mean that deportation would be warranted on ‘imperative grounds of public security’. The Tribunal held that this was insufficient. There must be something, in scale or kind, to justify the conclusion that the individual posed ‘a particularly serious risk to the safety of the public or a section of the public’.

Applying HR (Portugal), time spent in prison did not count towards the ten year, but LG had acquired right of permanent residence before going into prison, and time in prison did not take that away. They held that the deportation of LG was not required by the test for five year residents. Even acknowledging the seriousness of his offence, and the risk of re-offending, expulsion was not a proportionate response for someone who came here as a child, had a right of permanent residence, had lived here for some 15 years before the crime was committed, and had no significant links with his country of origin.

In Bulale v SSHD [2008] EWCA Civ 806 the Court of Appeal said that in considering the deportation of an EEA national who had five years continuous residence in the UK, previous convictions could only be taken into account so far as they were evidence of personal conduct constituting a present threat to the fundamental interests of society. Protecting members of society from violent crime of a sufficiently serious nature was such a fundamental interest. The Secretary of State’s guidance suggested that a serious offence of violence carrying a penalty of 10 years imprisonment or more might constitute serious grounds of public policy and that guidance should be followed.

6.9 European enlargement and freedom of movement

The House of Lords confirmed that although the Workers’ Registration Scheme was made under the authority of European Community law and was required to comply with its principles, the UK’s derogation from granting full EU rights to A8 workers was permitted by the Treaty of Accession, and its application to A8 workers of a domestic system of regulation was lawful (Zalewska v Department for Social Development (Northern Ireland) [2008] UKHL 67. The majority (3:2) held that the requirement for workers to re-register when they changed employers served a legitimate purpose of monitoring the entry of A8 workers and was proportionate to that aim and so lawful.

In SH (A2 national – worker authorisation exemption) Bulgaria v SSHD[2009] UKAIT 00020 the tribunal held that the reasoning in Zalewska could also be applied to the regulations on the registration scheme for A2 nationals. SH had obtained entry clearance valid from 16 February 2006 until 16 February 2007. On 18 February 2006 he had travelled to the UK. His passport was stamped by an Immigration Officer at Luton Airport, and he began his employment that same day. This meant that at the end of his first year of work (18th February 2007) his leave had expired two days earlier. He was not working pursuant to leave to do so (i.e. legally) for the whole period, being two days short. If he had been working legally for 12 months he would have been exempt from the authorisation scheme. The requirement to comply exactly with the regulations meant he was not.

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