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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

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