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How we overturned Sala in the Court of Appeal

The Court of Appeal (Etherton MR, Longmore LJ, Irwin LJ) heard the appeal against the findings in Sala yesterday. Those findings, briefly, are that by virtue of the discretion available to a decision-maker under regulation 17 of the Immigration (EEA) Regulations 2006, a decision on an application under regulation 8 is not a decision which concerns the applicant’s entitlement to be issued with a residence card. Therefore it is not an “EEA decision” under regulation 2 and so is not appealable under regulation 26. Our position for the appellant was the same as the appellant’s position in Sala: that the regulations provide a right of appeal against an adverse decision on...

13th October 2017 By Rajiv Sharma

ILPA annual free movement seminar: report

What can immigration lawyers do when immigration law is uncertain? This was not, admittedly, the advertised theme of the Immigration Law Practitioners’ Association annual seminar on free movement, which took place on 4 October. But the enervating effects of unpredictability and ambiguity in immigration law and policy ran through most every contribution. Elspeth Guild’s opening remarks reminded us of the lack of legal certainty for EU citizens in the UK, with some clients beginning to “pack up and leave”. It was a point ably taken up by ILPA chair Adrian Berry, who took us at a rapid clip through the latest policy papers and declarations of the government. Even policy...

12th October 2017 By Conor James McKinney

Permanent residence through incapacity to work: no UK derogation

The claimant in SSWP v NZ (ESA) [2017] UKUT 0360 (AAC) is a Polish national who worked in a chip shop. On 4 September 2017, the Upper Tribunal released a third interim decision in the case, relating to a very specific issue: had the UK derogated from Article 17 of Directive 2004/38 by the Accession (Immigration and Worker Registration) Regulations 2004? The claimant’s employment had been registered belatedly under the Worker Registration Scheme, with effect from December 2006. She continued working until March 2007, when she went on maternity leave. After that she had been unwell for a while and made unsuccessful attempts to return to work, but her employment was terminated in November 2007....

3rd October 2017 By Nath Gbikpi

Home Office in breach of law over permanent residence waiting times

The Home Office has broken the law by failing to publish the waiting times faced by EU citizens trying to get residence documents. The Information Commissioner ruled that Amber Rudd’s department is in breach of the Freedom of Information Act, having sat on the request for seven months and counting. Free Movement’s founder and editor, Colin Yeo, wrote to the Home Office on 23 February asking for data showing average waiting times for the cards and certificates that prove an EU citizen’s right to live in the UK. By 30 March, officials at Marsham Street had acknowledged that the request would not be answered within the 20 working days demanded...

2nd October 2017 By Conor James McKinney

Citizens’ rights: update after fourth round of Brexit negotiations

The fourth round of Brexit negotiations are over, with some signs of progress on the future status of EU citizens living in the UK. At the end of August, the EU-UK joint comparison of negotiating positions on citizens’ rights showed some 30 issues highlighted in red, indicating no agreement. This has been cut by about half in the latest document, showing the position at the end of September. Enforcement: “direct effect” conceded, CJEU jurisdiction not David Davis uses the words May did not over implementing withdrawal agreement in domestic law: "Direct effect." — Matthew Holehouse (@mattholehouse) September 28, 2017 Both the Brexit Secretary, for the UK, and the European Commission chief...

28th September 2017 By Conor James McKinney

Tribunal: Home Office must prove present risk to deport EU citizens

In the very recent case of Arranz (EEA Regulations – deportation – test) [2017] UKUT 294 (IAC) President McCloskey set out the correct approach to EU law deportations. The official headnote instructs us: (i) The burden of proving that a person represents a genuine, present and sufficiently threat affecting one of the fundamental interests of society under Regulation 21(5)(c) of the EEA Regulations rests on the Secretary of State. (ii) The standard of proof is the balance of probabilities. (iii) Membership of an organisation proscribed under the laws of a foreign country does not without more satisfy the aforementioned test. (iv) The “Bouchereau” exception is no longer good law: CS...

28th September 2017 By Colin Yeo