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Reflection on Metock

Reflection on Metock

It’s taken a while, and attendance on a training course, but I feel better equipped to comment on Metock and the tribunal’s two responses thus far, in the cases HB and SM.

HB does indeed accept the ruling in Metock, which is in essence that a right to reside as a spouse of a Union Citizen under Article 2(2) of the Citizen’s Directive is not dependent on prior lawful residence in another member state. See paragraphs 48 to 54 in particular and then paragraphs 55 to 70 for the reasons. The European Court of Justice also holds that the marriage can take place after the Union Citizen has entered the member state in question (paragraphs 91 and 93).

I originally billed SM as a rejection of Metock. More accurately, it is a refusal to apply the reasoning in Metock to wider family members not falling within Article 2(2) of the Directive.

The Directive appears to create two tiers of family member. The first are specified at Article 2(2), to whom Article 3(1) applies, and include close family like spouses, children and parents. The second tier are wider family members defined at Article 3(2). However, the meaning of this part of the Directive is far from clear. It appears to leave at least a certain latitude to member states in deciding what family members might benefit from the provision and then what benefits they might receive, and yet it also sets out specific examples of relatives that might benefit. The only duty on member states seems to be to ‘facilitate entry and residence’ but also includes an express provision for ‘extensive examination’ of them and a right to refuse, albeit with a proviso that justification must be given.

Given that the UK courts have so far interpreted Article 3(2) not to give rise to any EC law rights as such other than a right to apply for entry and/or residence (e.g. KG (Sri Lanka) v SSHD [2008] EWCA Civ 13), the approach of the tribunal in SM was pretty much inevitable. The issue needs to await judgment from the ECJ on the meaning and scope of Article 3(2). I’ve no idea when this will happen but will post on it when it does or if I hear any news.

Free Movement

The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

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