Can a person granted subsidiary protection be transferred under Dublin III?

Case C-36/17: Daher Muse Ahmed v Bundesrepublik Deutschland The EU does not want asylum seekers to ‘shop around’ its Member States. To this end, various Regulations exist to prevent someone who has already claimed asylum in one Member State from subsequently doing so in another. But what if an applicant has claimed before, the result of which was being granted not refugee status, but subsidiary protection (‘humanitarian protection’ in the UK)? The CJEU has replied to a reference from the German administrative court to deliver its answer. Background facts The applicant claimed asylum in Germany. The German authorities found that he had previously claimed asylum in Italy. His application in…

1st June 2017 By Thomas Beamont

Alternative options for EU partners: making an application under Appendix FM

Now that the election manifestos have been officially published we have an indication what Labour and Conservative have planned for EU nationals living in Britain. While the Labour manifesto confirmed a pledge to immediately guarantee existing rights for all EU nationals living in Britain the polls continue to point to a Conservative win, with a manifesto that does not guarantee existing rights but seeks to ‘secure entitlements’. This wording suggests those who have yet to establish a “right of residence” will not be covered by the Conservative pledge. In EU law, any EU national has the right of admission to another Member State and can physically remain in that Member…

31st May 2017 By Chris Desira

UK wrong to deny residence rights for non-EEA family members of dual nationals

The question about what rights are enjoyed by an EU citizen who naturalises as a British citizen becoming a dual citizen is critically important in the context of Brexit. We previously gave some context on why the UK denies dual citizens’ rights under EU law and why many lawyers believe that approach is wrong. This issue was put to the Court of Justice in the case of Lounes C-165/16 has now received a formal Opinion by the Advocate-General suggesting that the UK was wrong to deny EU rights to dual citizens and their family members. Advocate General Opinions The Court of Justice interprets EU law to make sure it is…

31st May 2017 By Chris Desira

Is the triggering of Article 50 a good argument for making a reference to The Court Of Justice now? – Monckton Chambers

Also well worth a read: As all readers of this post will know, the United Kingdom gave notice of its decision to withdraw from the EU on 29 March 2017. Under Article 50 TEU, that means that (subject to a different date being provided for in a withdrawal agreement or an extension by unanimity) the UK will cease to be subject to the Treaties on 30 March 2019.Unless any different provision is made in a withdrawal agreement, the Court of Justice of the EU will cease, on that date, to have jurisdiction to rule on questions of EU law referred to it by UK courts under Article 267 TFEU.Since the…

24th May 2017 By Colin Yeo

EU can point to clear precedents in Brexit court showdown | MLex market insight

Worth a read: The Brexit negotiations are heading for an early battle. The remaining EU states on Monday agreed that the rights of EU citizens living in the UK after its withdrawal should fall under the jurisdiction of the EU Court of Justice, or CJEU. The UK wants to guarantee individuals’ rights, but rejects the oversight of the bloc’s top-tier court in Luxembourg. “The simple truth is: we are leaving,” Brexit secretary David Davis has said. “We are going to be outside the reach of the European court.” European Commission negotiators will be able to cite previous rulings that have set precedents and conditions for granting the CJEU jurisdiction over…

24th May 2017 By Colin Yeo

UK law found to be more generous than EU law for jobseekers acquiring permanent residence

The case of GE v. SSWP (ESA) [2017] UKUT 145 (ACC) sets out how the Immigration (European Economic Area) Regulations 2006 (since replaced with the 2016 version), are in some areas, more generous than EU law itself by concluding that an initial right of residence or status as a job-seeker could count towards permanent residence for an EEA national. Background The case is a decision of the Upper Tribunal relating to the entitlement of an EEA benefit claimant to Employment Support Allowance (ESA). The facts of the case will not be of significance in the immigration field, except to note that it was important to establish the EEA nationals statuses…

22nd May 2017 By Chris Desira

Capparrelli (EEA Nationals – British Nationality) [2017] UKUT 162 (IAC) -Comment by Ian Macdonald QC

Ian Macdonald QC has sent in an interesting note on the controversial Capparrelli determination. For background, see original Free Movement write up here: Tribunal finds Home Office has wrongly issued British passports to EU citizens and their children. Section 1 of the British Nationality Act 1981 (the “1981 Act”), the subject matter whereof is “Acquisition by birth or adoption”, provides: “(1) A person born in the United Kingdom after commencement, or in a qualifying territory on or after the appointed day, shall be a British citizen if at the time of the birth his father or mother is— … (b) settled in the United Kingdom or that territory.” Section 1 came…

18th May 2017 By Colin Yeo

Tribunal rules a Big Issue seller has no right of residence in EU law

Seems like a dubious decision to me on the facts, but it cannot be faulted for rehearsing the relevant law quite thoroughly. The lady in question was earning a steady £50 per week working a 40 hour week and the First-tier dismissed the appeal on the basis that the work was not “genuine and effective”: 19. I considered the totality of the appellant’s family financial circumstances. The appellant’s rent was met by Housing Benefit and she claims Tax Credits of about £150 per week. The appellant’s earnings from selling the Big Issue make up the remainder of the family income and I hold on the balance of probabilities that the appellant’s…

18th May 2017 By Colin Yeo

New CJEU case extends Zambrano rights of residence, emphasises best interests of children

In a new case, Chavez-Vilchez and Others v Netherlands C-133/15, the Court of Justice of the European Union has significantly extended Zambrano rights beyond those so far recognised by the Home Office and UK courts. The case offers far better guidance than was available in previous cases and emphasises that the impact on children is a primary consideration. Background The case involved seven mothers who had applied to the Dutch authorities for residence on the basis of being the primary carers of young Dutch children. They had all been refused residency because it was said that the fathers of the children could care for them, and therefore the children would not…

16th May 2017 By Colin Yeo

Why the UK and EU cannot easily agree on EU citizens’ rights: UK vs EU law

Theresa May refused to guarantee the rights of EU citizens living in the UK but did at least assure them that their situation would be a early negotiating priority. That perhaps was not terribly reassuring given that Theresa May also suggested that everyone should prepare for the UK to crash out of the EU with no deal at all and then called an election which has inevitably delayed the negotiations. Already it is reported that the talks on the rights of EU citizens seem to have hit a significant stumbling block. This is by no means insoluable and negotiations are by their very nature bound to include differences of approach which need…

3rd May 2017 By Colin Yeo

New EEA(PR) application form guidance published

Most Home Office application forms are accompanied with guidance explaining how to make a valid application, and the EEA(PR) application form is no different. While the EEA(PR) form was last updated in March 2016 the guidance accompanying that form was last updated in December 2015 and so an update has been well overdue. The Home Office have finally got around to that with new guidance issued this month. Surprisingly for the Home Office, the new guidance provides some helpful pointers and also eases the evidential burden for some requirements, bringing it closer to, but not quite in accordance with, EU law. Unsurprisingly for the Home Office, the guidance has more than doubled…

27th April 2017 By Chris Desira

Tribunal finds Home Office has wrongly issued British passports to EU citizens and their children

In a controversial determination, the President of the Upper Tribunal Immigration and Asylum Chamber, Mr Justice McCloskey, has found that the Home Office has wrongly issued British passports to hundreds or even thousands of children of EU, EEA and Swiss citizens born in the UK before 2 October 2000. The case is Capparrelli (EEA Nationals – British Nationality) [2017] UKUT 162 (IAC). If the determination is correct, which is questionable, it could also mean that almost no EU or EEA citizen could ever have qualified for British citizenship and that British citizenship may have been wrongly conferred on tens of thousands of EU, EEA and Swiss citizens. Remarkably, considering the exceptionally broad impact…

26th April 2017 By Colin Yeo

Reference made to CJEU on extended family members, Surinder Singh and appeal rights

The case is UK v Banger C-89/17. Text of the reference here: Do the principles contained in the decision in Immigration Appeal Tribunal and Surinder Singh, ex parte Secretary of State for the Home Department (Case C-370/90) [1992] operate so as to require a Member State to issue or, alternatively, facilitate the provision of a residence authorisation to the non-Union unmarried partner of a EU citizen who, having exercised his Treaty right of freedom of movement to work in a second Member State, returns with such partner to the Member State of his nationality? Alternatively, is there a requirement to issue or, alternatively, facilitate the provision of such residence authorisation…

26th April 2017 By Colin Yeo

Home Office suggests EU nationals sign up for email alerts not apply for residence documents

The Home Office is now advising EU nationals to sign up for Government email alerts rather than applying for residence documents as proof of status. The guidance was issued on 7 April 2017 and is a tacit admission that the Home Office is overwhelmed by applications from EU citizens and their families. The guidance is not mandatory; EU citizens can still apply for residence documents if they want to, and indeed EU citizens have to apply for these documents if they want to apply for naturalisation as British citizens. The latest quarterly immigration statistics certainly showed a dramatic rise in applications for permanent residence documents: Given that the Government has: refused…

25th April 2017 By Colin Yeo

Ankara Agreement standstill clause does not apply to settlement applications says tribunal

Official headnote: (I) The settlement of migrant Turkish nationals and their family members does not fall within the scope of the “stand-still clause” in Article 41(1) of the Ankara Agreement (ECAA) Additional Protocol as it is not necessary for the exercise of freedom of establishment under Article 13. Thus the status of settlement in the UK for such Turkish nationals and their family members cannot derive in any way from the ECAA or its Additional Protocol; (II) Where a Turkish national who exercised rights under the ECAA has been granted settlement in the UK the rights of such person and his family members are not derived from the ECAA or its Additional…

24th April 2017 By Colin Yeo

Brexit Information · Immigration Law Practitioners’ Association

Very useful resource page from ILPA on EU rights of residence including a new series of fact sheets on: Brexit 1: The Rights of EEA and Swiss Nationals in the UK Brexit 2: EEA and Swiss nationals and their family members Brexit 3: EU rights of residence as a worker Brexit 4: EU rights of residence as a self-employed person Brexit 5: EU rights of residence as a student Brexit 6: EU Rights of Residence as a Self-Sufficient Person Brexit 7: Comprehensive Sickness Insurance Brexit 8: Permanent Residence under EU law Brexit 9: British Citizenship for EEA and Swiss Nationals Source: Brexit Information · Info Service · Immigration Law Practitioners’…

20th April 2017 By Colin Yeo

Do dual EU-UK citizens have rights under EU law?

The question of what rights are enjoyed by an EU citizen who naturalises as a British citizen and becomes a dual citizen has become a critically important one in the context of Brexit. There is huge uncertainty amongst EU citizens and their family members living in the UK about their future status and there is huge interest in the possibility of naturalising as British citizens. At the same time, though, it has to be said, the number of EU citizens successfully applying for naturalisation as British actually fell between 2015 and 2016, from 17,158 to 14,901. This was presumably because of additional hurdles the UK Government has erected in the way of EU citizens seeking…

3rd April 2017 By Colin Yeo

Reference made to CJEU on rights of appeal for extended family members

Anthony Metzer QC led Sanaz Saifolahi, on behalf of the Respondent, before the President of the Upper Tribunal, Mr Justice McCloskey, on the application of the Surinder Singh rationale to the unmarried partner of a British National. There are currently no reported cases on this issue. The Respondent is in a longstanding durable relationship with a British National. The couple had previously lived in The Netherlands before returning to the UK. The Respondent then applied for a Residence Card relying on Surinder Singh.   The Secretary of State for the Home Department (now the Appellant) refused to grant a Residence Card, on the basis that Regulation 9 of the Immigration (EEA)…

29th March 2017 By Sanaz Saifolahi

Home Office say it is “longstanding practice” not to remove EU citizens lacking comprehensive sickness insurance

In a written Parliamentary answer yesterday the Government stated self sufficient or studying EU citizens without comprehensive sickness insurance (CSI) are “not lawfully resident” in the UK and “may be liable for removal” but that it is “longstanding Home Office practice” not to seek removal because “it is relatively straight forward to rectify.” The implication seems to be that those without CSI are expected to “rectify” their situation. Employed and self employment EU citizens are not required to possess comprehensive sickness insurance. This seems to confirm my analysis in an earlier legal briefing: the Home Office considers that Articles 20 and 21 TFEU, which establish the right to move to and reside in other…

28th March 2017 By Colin Yeo

240 jobs available in Liverpool Visas and Immigration department for processing EU casework

This is hugely overdue – what on earth took the Home Office so long to get moving on this? However belated, though, it is good news. And the positions are reported to be permanent, perhaps suggesting some recognition by the Home Office of the massive increased demand that hard Brexit will impose on border officials. There are two types of job on offer. The first is Executive Officer Caseworker. There are 120 positions available, on a full-time 9am-5pm basis. The salary is between £23,330 and £26,831. According to the job description, workers will use Home Office guidance to consider immigration applications, make decisions on applications and record casework outcomes and decision…

23rd March 2017 By Colin Yeo

Upper Tribunal wrong all along on Kareem and proxy marriages of EU citizens

The Court of Appeal has held that the Upper Tribunal has been wrong all along about proxy marriages and EU law. The case is Awuku v Secretary of State for the Home Department [2017] EWCA Civ 178 and it overrules the earlier tribunal cases of Kareem (Proxy Marriages – EU Law) Nigeria [2014] UKUT 24 and TA and Others (Kareem explained) Ghana [2014] UKUT 316. It is always a bad sign when a judgment subsequently has to be “explained”. And so it was here. The Home Office had already conceded that the approach of the Upper Tribunal was wrong and the Court of Appeal had to resort to appointing an Advocate…

23rd March 2017 By Colin Yeo

High Court declares unlawful the abolition of right of appeal for Turkish nationals

In the case of R (on the application of Akturk) v Secretary of State for the Home Department [2017] EWHC 297 (Admin) a Turkish wannabe window cleaner entered the UK as a visitor and then applied for leave to remain to establish his window cleaning business under the 1973 Immigration Rules, known as HC510. These rules continue to apply to self employed Turks because of the “Ankara Agreement”, the accession treaty between the EU and Turkey to which the UK signed up on joining the EU in 1973. This treaty included a “standstill clause” which prevents the imposition of additional immigration rules over and above those in place at the…

21st March 2017 By Colin Yeo

Impact of judgments of the Court of Justice of the EU in cases X.Y.Z., A.B.C. and Cimade and Gisti

Not exactly a pithy title but looks interesting from ECRE: The study intends to examine the extent of implementation of asylum-related judgments of the Court of Justice of the European Union (hereinafter ‘the CJEU’) and their impact on relevant asylum policies across the EU. It also looks at the role national authorities and the judiciary play in ensuring the application of CJEU case law and the Charter of Fundamental Rights of the EU (hereinafter ‘the EU Charter’). In particular, the study aims to: ● Assess the national legislative and policy impact of the selected CJEU judgments; ● Identify national and EU-level guidance documents as well as national jurisprudence which interpret…

16th March 2017 By Colin Yeo

Home Office now says health insurance ‘just a technicality’

“EU citizens will not be removed from the UK or refused entry solely because they do not have comprehensive sickness insurance,” said a spokesman. Very welcome news but it is difficult to understand the Home Office’s legal position on all this. They are categorically NOT saying that they will recognise a right of permanent residence for a self sufficient person or student who did not have comprehensive sickness insurance, only that they will not be refused entry or removed. It is not written down in any of the myriad official policies of which I am aware; it is at the moment just a statement to a journalist. Laws are supposed to…

8th March 2017 By Colin Yeo

Briefing: the legal status of EU citizens in the UK

Summary The Home Office has hardened its position on EU citizens who are living in the UK but who do not have a “right of residence” under Directive 2004/38/EC. New regulations were introduced on 1 February 2017 and a swathe of policy documents were updated shortly afterwards. These regulations and policies increasingly suggest that an EU citizen who is physically present in the UK but who the Home Office considers does not have a right of residence is in a precarious and unlawful position and can be removed from the UK at any time. New powers have been assumed by the Home Office to do just that: remove an EU citizen…

27th February 2017 By Colin Yeo

Free ebook application guides for EU citizens: updated

With thanks to Unbound Philanthropy for the funding, I have been able to put together a series of ebook guides aimed at EU and EEA nationals wanting to apply for residence documents here in the UK. They are updated and expanded versions of my existing ebook on EU applications, and I have separated them out into different guides to try and keep the length and complexity to a minimum. These self help guides are now up to date as at 24 February 2017. Please distribute these as widely as possible – they are intended to help as many people as possible. Each is available as a pdf for general access and…

24th February 2017 By Colin Yeo

Brexit briefing: Securing EEA Nationals’ Residence Rights

By Matthew Evans, Director, AIRE Centre Introduction The rights of EEA nationals (plus Swiss) to reside in the UK are primarily addressed in the Citizens Directive (Directive 2004/38/EC) which is implemented in the United Kingdom in the Immigration (European Economic Area) Regulations 2016. There are three principal categories of residence: A right to reside for up to three months without any conditions or formalities other than holding a valid identity card or passport (Article 6); A right to reside for more than three months if they are workers or self-employed; if they have sufficient resources for themselves and their family members not to become a burden on the social assistance system…

21st February 2017 By ILPA

Brexit briefing: Rights to Remain after Brexit

By Bernard Ryan, Professor of Migration Law, University of Leicester Introduction This paper is concerned with the possibility of a post-Brexit right to remain for those residing in the United Kingdom under EU law on the free movement of persons.[i] It focuses on the question: who should have a right to remain, both in the negotiations at the EU level, and at the domestic level? It also considers the status and further rights that should go with such a right to remain. Rights of residence in EU law The main source of rights of residence in EU law is the Citizens Directive of 2004.[ii] It provides for rights of residence for EU…

20th February 2017 By ILPA

New policies, processes and forms for EU nationals show hardening Home Office position

A raft of new Home Office policies and forms for EU and EEA nationals was released in early February, along with significant changes to the online application process. These changes accompany the Immigration (European Economic Area) Regulations 2016, which took effect for all applications from 1 February 2017. I have been holding off writing up these changes to await expected new versions of the EEA(PR) and EEA(FM) forms but at the time of writing there was still no sign of these. Hardening position on EU spouses and others The hardening of position by the Home Office is over the status of EU nationals who live in the UK but do…

10th February 2017 By Colin Yeo

What does the Brexit White Paper say about immigration?

Short version: not a lot we did not know already Long version… Yesterday, the day after MPs began the process of the UK leaving the EU, the Government published a White Paper on Brexit. The formal title is The United Kingdom’s exit from and new partnership with the European Union White Paper Cm 9417. A White Paper is supposed to set out proposals for future legislation before a Bill is formally laid before Parliament. This time, the Bill preceded the proposals. The White Paper only sets out the UK’s current negotiating position. Whether this position is realistic or not is quite another issue. Immigration legislation needed The White Paper recognises…

3rd February 2017 By Colin Yeo

The Surinder Singh immigration route: how does it work? (updated)

This blog post has been updated to address the changes introduced in the Immigration (EEA) Regulations 2016. The ‘Surinder Singh route’ has become well known to British citizens seeking to be reunited with their family members. The toughening up of UK immigration rules in July 2012 – particularly the introduction of the minimum income rule and its labyrinthine documentary requirements and the awful elderly dependent relative rules – has resulted in an ever increasing number of split families. The Childrens’ Commissioner has described affected families with children as “Skype Families”. An old Court of Justice of the European Union case called Surinder Singh provides a potential means to rely on…

31st January 2017 By Colin Yeo

What is the position of EU spouses of British citizens following Brexit?

The result of the Brexit referendum has thrown a harsh light on long standing UK Government positions on the free movement rights of EU nationals. Nowhere is this more obvious and more awkward than in the case of EU national spouses of British citizens. I have been receiving many queries about this issue and concern has been expressed in Parliament and in the media.  MEPs and the EU Commission are also thought to be looking into this question and even launching an inquiry into the treatment of EU nationals in the UK. Jean Lambert MEP tabled a question to the Commission late last year. The Commission had started infringement proceedings…

24th January 2017 By Colin Yeo

Supreme Court rules Act of Parliament needed to trigger Article 50 and leave EU

The Supreme Court ruled today by a majority of 8-3 that an Act of Parliament is needed for the UK Government to trigger Article 50 and formally begin the process of leaving the EU. Giving the leading judgment the President of the Court, Lord Neuberger, emphasised that the judgment was not about whether the UK should leave the EU but what was necessary to respect the UK’s constitutional arrangements. The formal case title and citation is R (on the application of Miller and Dos Santos) v Secretary of State for Exiting the European Union and associated references [2017] UKSC 5. A press summary is available as well as the full judgment. The claimants argued…

24th January 2017 By Colin Yeo

Can the Home Office force EU nationals to use the official 85 page permanent residence application form?

Short answer: yes, at least for now. Long answer… From 1 February 2017 it seems likely that it will be mandatory to use the official application forms for EEA residence document applications, either online or on paper, that are provided by the Home Office. This is a new requirement introduced by paragraph 21 of the Immigration (European Economic Area) Regulations 2016, which come into force on 1 February 2017. The relevant parts of the regulation say that an application for residence documents must be made: (a) online, submitted electronically using the relevant pages of www.gov.uk; or (b) by post or in person, using the relevant application form specified by the…

23rd January 2017 By Colin Yeo

Comprehensive Sickness Insurance: what is it, and who needs it?

If you are an EEA/EU citizen or their family member and you would wish to qualify for a right of residence then eventually a right of permanent residence you have to meet certain requirements. Following the Brexit vote to leave the EU, it is more important than ever to make sure that you do currently meet the requirements. We fully expect that EEA citizens with the right of residence or permanent residence will benefit from transitional arrangements and be “passported” to a new immigration status, but we are not so sure about the position of those who are living in the UK without a right of residence. Confusingly, EEA citizens and their family…

23rd January 2017 By Colin Yeo

Brexit: what impact on those currently exercising free movement rights? – Commons Library briefing

Good briefing paper by the House of Commons library (as always!) on the end of free movement rights and what has been said so far. It also mentioned without comment the now patently false assurances of the Leave campaigners. It remains to be seen how the Government may choose to offer such protection. It is not known whether it would require certain criteria to be met or whether conditions would be placed upon rights of residence. Nor is it clear by what procedures such residence rights would be sought and obtained. The Migration Observatory at Oxford emphasises the sheer scale of the administrative exercise that would be required to register…

23rd January 2017 By Colin Yeo

Eight changes the UK Government could make right now to simplify permanent residence applications

EU citizens wanting to apply for proof of their right of permanent residence in the UK currently have to cut through spools of red tape. The unnecessary bureaucracy defeats some, who are wrongly being told by the Home Office that they must leave the UK after years and years of lawful residence. It does not need to be like this. Here I suggest eight changes the Home Office could immediately implement which would make life simpler for the 3 million EU residents who are worried about their status in the UK and which would also shorten the decision making process for the Home Office. No law changes are required and these changes really just…

18th January 2017 By Colin Yeo

New case on two year reconsideration period for EU deportations

A new tribunal case on EU deportations. The headnote: Neither a decision to make a deportation order nor a notice of intention to make a deportation order triggers the two year period specified in regulation 24(5) of the EEA Regulations. The two year period begins upon the making of the deportation order itself. Regulation 24(5) provides for automatic reconsideration of deportation decisions if a person receives a deportation order but it is not actioned for a two year period. It reads: Where such a deportation order is made against a person but he is not removed under the order during the two year period beginning on the date on which…

23rd December 2016 By Colin Yeo

Parliamentary report recommends continuation of EU law for existing residents

Following hot on the heels of the hardline British Future report on the rights of EU nationals in the UK after Brexit, the House of Lords EU Justice Committee has today published a report on the same subject. It is a far more comprehensive and comprehending piece of work and it is clear that the authors have fully understood the problems facing EU nationals in the UK, UK citizens in the UK and the scale of the task facing the UK Government. In summary, the report recommends that full EU law rights be preserved for existing EU national residents of the UK. The report does not make assumptions about the…

14th December 2016 By Colin Yeo

Report recommends cut off date for new arrivals from EU

A hardline report chaired by prominent Leave campaigner Gisela Stewart into the status of EU nationals in the UK has recommended a cut off date for new arrivals from the EU, likely to be April 2017, and a massive registration programme for existing EU residents. EU citizens arriving after the cut off date would be subject to the full force of UK immigration law on Brexit, presumably meaning they would become unlawfully resident on that date. Existing EU residents would also become subject to UK immigration laws and would have to apply for Indefinite Leave to Remain. UPDATE: the British Future report might usefully be contrasted with a subsequent excellent one of…

12th December 2016 By Colin Yeo