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Book review: Free Movement of Persons in the Enlarged European Union

Book review: Free Movement of Persons in the Enlarged European Union

The publishers, Sweet & Maxwell, have been kind enough to provide a review copy of the 2nd edition of Free Movement of Persons in the Enlarged European Union by Nicola Rogers, Rick Scannell and John Walsh. Nicola and Rick are formerly of Garden Court Chambers and recently retired from the Bar and John very much remains in practice at Doughty Street. Nicola in particularly is renowned amongst practitioners for her knowledge of EU law. There is also a significant contribution by Professor Steve Peers on the issue of Union Citizenship, a hot legal topic. Prof Peers is well know to ILPA members as the author of the comprehensive and very useful regular EU law update.

As might be expected from such a stellar contributors list, combining both top level practitioners and a top notch academic, the book is extremely useful for serious practitioners of and judges in EU free movement and citizenship law. The authors note in the introduction that:

One only needs to look at the frequency with which the UK Government appears to lose its arguments in this area before the CJEU to appreciate that something must be going wrong both at decision making level and before the UK courts.

The book is accessible and well written, acting both as a good introduction to the topic of EU law generally and free movement law specifically and as a reference work for experienced practitioners. The book is up to date to March 2012. In my own read-through I focussed on areas of current contention in the courts, particularly EU citizenship, the economically inactive, family members and the Ankara Agreement.

I found the chapter on EU citizenship particularly interesting. The authors rather understandably cannot help but note in the introduction that in Liu v Secretary of State for the Home Department [2007] EWCA Civ 1275 (in which Nicola acted) the response of the Court of Appeal to arguments based on EU citizenship later to be confirmed by Zambrano were rejected in extraordinarily strong terms:

It is to be hoped that the professions, and the Legal Services Commission, will take good note of that observation, and that these appeals will be the last occasion on which the AIT, and this court, is troubled with these issues.

We now know that this certainly was not the last occasion on which the courts were to be troubled by such issues and the statement now reads as rather foolish and ignorant of EU law. In fact, though, Zambrano gets very little mention in this chapter, which concentrates on the principles and background to EU citizenship. One could criticise the lack of reference, but another view is that it is actually more useful to remain focussed on the wood rather than the trees in this instance, particularly given the apparent conflict of opinion within the CJEU itself in Zambrano and the follow up cases.

One interesting tidbit is that the authors take the firm view that there is no restriction on the source of a self sufficient person’s resources, which in the case of a child might therefore lawfully be derived from the employment income of their third country national carer. This is not the view the UK courts have so far taken, so this may well prove to be another area of prescience by the authors.

Seven whole chapters are devoted to the Ankara Agreement and Association Agreements generally and these are vital reading for anyone working in that field. I am aware of no other remotely comparable source of information and instruction on this complex and convoluted topic.

There is also a section on UK law and practice, but this is not the main focus of the book and of course the two major sets of amendments in 2012 to the domestic Immigration (EEA) Regulations 2006 render some of this section redundant, which as with the rest of the book is current up to March 2012. Nevertheless, there is some very interesting and useful material in this section, particularly the section on controversial points.

I’d have liked to read a section on EU law damages in free movement cases but the subject is a little esoteric. The AIRE Centre / ILPA briefing note of that subject remains the only source of useful guidance on this of which I’m aware.

Thumbs up.

Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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