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Brexit Q&A podcast: your questions answered

Analysis: what is the UK proposing for EU citizens in the UK and EU citizens in the EU?

On 26 June 2017, over a year after the Brexit referendum result, the government finally published its proposals to “safeguard the position of EU citizens living in the UK and UK nationals living in the EU”. Here we take a look at the details of the proposals. It is important to remember that at the moment these are just proposals by the UK. They have been tabled as part of a negotiation process. The UK proposals may change, either becoming more generous as part of the negotiation or being withdrawn partially or in full if the negotiations fail. The EU has already made public its own comprehensive proposals, which are...

27th June 2017 By Colin Yeo

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

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