European free movement law - it changes

10 December 2017

One of the things that one might like about European free movement law, as opposed to British immigration law, is that it is relatively simple. British immigration law - particularly as expressed in the UK Immigration Rules - has over the last few years become increasingly onerous and complex. Some readers may know about, for example, the intricate requirements under the Immigration Rules that the spouse or partner of a British or settled person has to meet in order to succeed in a visa application to join them or stay with them in the UK.

But European free movement law is not so complicated. To take the similar example of a spouse or partner who wants to join or stay with their European family member in the UK, the two particular things that have to be shown are that the European is exercising Treaty rights in the UK - eg by working - and that the relationship is genuine. In most cases this is all that needs be shown.

But nonetheless European free movement law has not been immune to change. Whereas UK immigration law is under the control of the British Government, it should be the case that European free movement law is not: it is after all the law of the whole of the EU (and a few other European countries).

But things are not quite that simple. The British Government, like all the other European governments, is required to transpose European free movement law into British law. In the case of the UK, this transposition is done by means of the Immigration (EEA) Regulations, which constitute British legislation.

Very importantly, these are the Regulations that UK Visas & Immigration will follow when it makes decisions on European immigration applications: as far as UKVI are concerned they are "the law". But supposing that it is alleged that the Regulations do not correctly reflect the underlying European law? If it is deemed to the case that they do not do so then they are not lawful under European legal principles and they cannot stand.

We reported earlier this year on just such a case ("European free movement rights and dual nationality", 11 June 2017). A Spanish national, Mrs Ormazabal, exercising Treaty rights in the UK had also acquired British citizenship but she had been told by the Home Office that her dual citizenship prevented her non-European partner from taking advantage of free movement rights, and the case had reached the Court of Justice of the European Union.

We have now got the final result of this case (which is called "Lounes"), which is that the Home Office’s decision was wrong. Keen students and aficionados of European law will note with interest that the court’s judgement was not straightforward, and that it agreed with the Home Office’s decision to the extent that the parties concerned indeed could not take advantage of free movement principles. They could however, the court decided, take advantage of the Treaty of the Functioning of the European Union, which is an instrument that provides similar and parallel rights for Europeans and their family members.

So well and good: non-European family members of dual citizen EEA/British citizens in the UK are now once again able to use European legal principles to join or remain with their EEA family members. Effectively, the law on this subject was changed by the Home Office but it has now changed back again.

And another problematic aspect of the Immigration (EEA) Regulations has emerged in recent times. It can happen that the British courts and tribunals are called upon to interpret the Regulations - as indeed they often are with various kinds of British legislation.

The Upper Immigration Tribunal, in a case called "Sala", interpreted the Regulations in a way that was not encouraging for "extended family members" of EEA nationals. "Extended family members" comprises various categories outside the traditional nuclear family, including unmarried partners.

As a result of the Upper Tribunal’s decision such unmarried partners whose applications for EEA immigration status documents had been refused found that they had no right of appeal to the First-Tier Immigration Tribunal - which is the part of the Tribunal that the migrant initially encounters if they have the right of appeal.

This decision was, many people thought, not right, and the issue eventually reached the Court of Appeal of England and Wales in a case called "Khan". To the relief of many the court said that the Upper Tribunal had got it wrong. In a kind of legal double whammy they said, firstly (in an implied dig at the Home Office), that the Regulations were "formidably obscure and badly drafted" and, secondly, that the Upper Tribunal had in any case misinterpreted the relevant legislation.

So, as in the case of Mrs Ormazabal, the law has changed but now it has changed back gain. Extended family members whose applications are refused can now expect the right of appeal before the First-Tier Tribunal - and if UK Visas & Immigration does not apparently give them the right of appeal they should appeal anyway: the right of appeal exists independently of what UKVI may think.

Brexit is approaching rapidly - it will possibly happen in March 2019 - but at least for the time being the courts are delivering favourable decisions for Europeans and their families.

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