It should not be a shock that the Asylum and Immigration Tribunal have in a case called HB (Algeria) just accepted the European Court of Justice decision in Metock. UK courts and tribunals are required to accept the ECJ’s judgments on the interpretation and meaning of European Community law, after all. Nevertheless, I was a little surprised to see the tribunal accept the full implications of Metock without more of a fight, being as it blows away a whole load of tribunal case law, of which senior members of the tribunal seemed very fond, as well as some Court of Appeal authority.
Metock was decided over the summer while I was away. I’ve been considering a belated post on it since my return, as it is such an important decision. It concerns the position of third country national family members of EEA citizens, meaning, for example, a Nigerian who is married to a Dutch national. Immigration lawyers generally took the view that EC law gave such a person a right to reside in the same country as their EEA spouse. The tribunal disagreed, imposing two additional requirements: firstly, that the third country national was lawfully in the EEA already and, secondly, that the EEA spouse and third country national had moved from another EEA country to the UK, therefore exercising free movement rights. The upshot was that those in the EEA unlawfully, for example after arriving illegally as asylum seekers or after overstaying their permission to stay, or those who had come directly to the UK and had not relocated from another EEA country with their spouse, could not benefit from EEA law.
This approach was ruled unlawful in Metock, to much media comment at the time, and the tribunal have now gracefully accepted they were wrong, although not without pointing out that there was some authority for their approach, in the earlier ECJ case of Akrich. The tribunal also rather boldly goes on to offer a tentative opinion as to which Court of Appeal cases are also now rendered wrong in law by Metock. KG and AK (Sri Lanka) [2008] EWCA Civ 13 in particular is singled out.
The judgment helps anyone who is from a non-EEA country but is married to (or the child or parent of) an EEA citizen who is in the UK and is employed, self employed or self sufficient. In certain circumstances, as in HB (Algeria) itself, it can even help a non-EEA national with a relationship to a UK citizen.
