Tag: EEA Regulations

Upper Tribunal establishes a new Derivative Right of Residence under EU Law for Family Members of British Citizens

In the recently reported case of LS v SSHD (Article 45 TFEU – derivative rights) [2018] UKUT 00426 (IAC) concerning the free movement rights of British citizens who live in the UK but travel frequently to other Member States of the EU for business purposes, the Upper Tribunal held that a third country national family member of such British citizens may be able to establish a derivative right of residence under Article 45 of the TFEU.

Ultimately in this case, it was found that two British citizens would be realistically in danger of being unable to continue their employment in the UK which required them to travel frequently in the EU should their family member, a third country national, be unable to provide childcare.

New Derivative Right

This is a significant step in the interpretation of EU rights to free movement in the UK. The derivative right which is established by this judgment sets a precedent in upholding the rights of British citizens to exercise free movement rights in the EU.

The appellant in this case is a Russian national who entered the UK for the purpose of visiting her daughter and son-in-law, both British citizens, who had recently had their first child. The employment of both British citizens required them to travel very frequently to other EU countries. Several months into the appellant’s visit, when her daughter was looking to return to work but struggling to make alternative childcare arrangements, it became evident that the appellant’s presence was indispensable due to the child’s complex care needs. Without the appellant fulfilling the role of caring for her grandchild, neither her daughter nor her son-in-law could continue to travel as required by their respective employments.

The Upper Tribunal accepted the position set out in the ECJ’s judgment in S & G (C-457/12)(S v Minister voor Immigratie, Integratie en Asiel and Minister voor Immigratie, Integratie en Asiel v G), that a third country national could establish a derivative right of residence in the Member State of which their family member is a national, if they meet the following criteria:

  • They are a family member of a Member State national within the terms of the Citizens’ Directive
  • Their family member must be exercising treaty rights (travelling regularly to other Member States for professional purposes falls within the scope of exercising treaty rights under Article 45 of the TFEU)
  • If it were not for the presence of the third country national family member, an absence of adequate childcare for the child of the Member State national would discourage them from exercising treaty rights

The Upper Tribunal noted particularly the threshold of the requirement that the British citizen would be dissuaded from exercising treaty rights.

In many such cases, it would clearly be preferable for the child to be cared for by a family member rather than any alternative such as a nanny or au pair, not least because it would be in the best interests of the child. However, it was held that this would not be enough to establish the dissuasive element. The Tribunal would need to undertake a wide evaluative assessment of the particular childcare needs. Moreover, adequate and reasonable steps would need to have been taken to obtain alternative childcare. The interference with the British citizen’s exercise of treaty rights must be real and there must be a causal link between the absence of adequate childcare and such interference.

Reported so soon before the UK is expected to leave the EU, this judgment throws up an interesting point regarding the current rights of British citizens which are afforded by EU free movement.

It is difficult to conceive of domestic UK legislation upholding the rights of British citizens to undertake professional activities abroad in order to maintain their UK employment, where they are at risk of being discouraged from doing so by difficult family circumstances, such as an absence of adequate childcare arrangements.

It is suggested that perhaps some more progressive immigration provisions will be required in future to address the problem that British families may face an economic crisis or be prevented from engaging in an increasingly global workplace in order to uphold the safety or security of their children. Perhaps these measures are needed even to provide sufficient motivation for such British families to continue living in the UK.

For more details and comments please on this case and its implications, please feel free to get in touch directly with Josephine Smith and Ruslan Kosarenko

 


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Brexit Update: EU Settlement Scheme Trial starts on 28 August 2018

Statement of changes to the Immigration Rules introducing new EU Settlement Scheme has been approved by the Parliament and comes into force on 28 August 2018 for the purposes of initial trial.  

This Statement of Changes in Immigration Rules introduces a new Appendix EU to the Rules to provide for applications by resident EU citizens and their family members for leave to remain in the United Kingdom under the EU Settlement Scheme.

Following the Government’s Statement of Intent on the EU Settlement Scheme, released on 21 June 2018, the Procedure on Biometric Enrolment and the Immigration and Nationality (Fees) (Amendment) (EU Exit) Regulations 2018 were also laid before the Parliament.

EU Settlement Scheme under new Appendix EU

Appendix EU will provide a basis on which resident EU citizens and their family members, and the family members of certain British citizens, can apply for leave to remain in the UK under UK immigration law.

Where resident EU citizens and their family members are concerned, this is in line with the draft Withdrawal Agreement with the European Union published on 19 March 2018 and will not affect their existing rights derived from EU law.

The EU Settlement Scheme will provide the mechanism for resident EU citizens and their family members, and the family members of certain British citizens, to apply on a voluntary basis for the UK immigration status which they will require to remain in the UK beyond the end of the planned post-exit implementation period on 31 December 2020.

More details on the settled status for the EU citizens and their family members

Effective Date & Trial

Appendix EU comes into force on 28 August 2018, for the purposes of an initial trial of the EU Settlement Scheme.

The trial  will involve the participation on a voluntary basis of:

  • persons on the payroll of the 12 NHS Trusts, and
  • enrolled students and persons on the payroll of the three Universities (Liverpool Hope University,
    Liverpool John Moores University, and The University of Liverpool).

The Immigration and Nationality (Fees) (Amendment) (EU Exit) Regulations 2018 also comes into force on 28 August 2018. The EU Settlement Scheme will be rolled out on a phased basis from late 2018.

The scheme will be fully open by 30 March 2019.

EU Settlement Scheme Provisions

  • EU citizens and their family members who, by 31 December 2020, have been continuously resident in the UK for five years will be eligible for ‘settled status’ (indefinite leave to remain in the UK).
  • EU citizens and their family members who arrive by 31 December 2020, but will not by then have been continuously resident in the UK for five years, will generally be eligible for ‘pre-settled status’ (five years’ limited leave to remain in the UK), enabling them to stay until they have reached the five-year threshold. They can then also apply for settled status.
  • Close family members (a spouse, civil partner, durable partner, dependent child or grandchild, and dependent parent or grandparent) living overseas will be able to join an EU citizen resident here after 31 December 2020, where the relationship existed on that date and continues to exist when the person wishes to come to the UK. Provision for future children will be made, in line with the draft Agreement.

Family Members of British Citizens

It has been also decided, as a matter of domestic policy, that a family member of a British citizen who is lawfully resident in the UK by 31 December 2020 by virtue of regulation 9 of the EEA Regulations, will be eligible to apply for status under the EU Settlement Scheme contained in Appendix EU.

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Appeal allowed after Home Office refuses EEA Residence Card for Brazilian National

A new successful case came out recently after the decision by the First-tier Tribunal.

The case concerned a family couple, where a Brazilian national married an EEA national. The appellant entered the UK, with the EEA national, on the basis of her Brazilian marriage certificate. Subsequently, the wife applied for a residence card as a family member of the EEA national and were refused by the Home Office.

Sterling Law appealed the decision of the Home Office, who considered their marriage to be one of convenience and, therefore, refused the residence card and ordered the appellant’s removal from the UK.

The refusal was based on the fact that the marriage certificate was not sufficient proof of the existence of a genuine marriage, or relationship.

The couple were expected to provide evidence of financial ties and cohabitation throughout their relationship. Further issues arose on the day when the Home Office team visited the couple’s property, which the appellant shared with her husband and parents-in-law.

Immigration lawyer, Nollienne Alparaque acted on behalf of the client and clarified that when the Home Office team visited the appellant’s property, there was miscommunication between the officers and the appellant’s friend, who spoke very little English, and could not properly confirm the name of the appellant’s spouse. Moreover, there was no any evidence reporting the visit by the Home Office team.

As to the alleged lack of financial ties, it has been argued that the appellant could not open a bank account, because the Home Office had her passport.  The couple had demonstrated active communication through Facebook, phone calls and messages before they got married in Brazil.

To conclude, the decision of the Home Office to refuse the residence card was found not to be in accordance with the EEA Regulations 2016, and the appellant was entitled to the residence card as an EEA family member.

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Genuine dependency under EEA Regulations proved despite alternative sources of income

Another successful appeal in a genuine dependency case under the EEA Regulations

The successful appeal concerned a challenge to the refusal of the Entry Clearance Officer (Respondent) to issue an EEA family permit to a parent of a spouse of an EEA national (Appellant).

The main reason for the refusal was that the Home Office was not satisfied that the applicant shown genuine dependency on his sponsor.

The Appellant has provided an abundance of evidence to prove his genuine dependency. He had spent two years in the UK on a visitor visa, residing with his family and subsequently became financially dependent on them after retiring. However, in 2016 he voluntarily left the UK. A year later, the Appellant suffered from a stroke in Ukraine.

Given the considerable medical expenses, the Appellant became even more financially dependent on his family in the UK, especially provided that his only source of income, excluding the support from the family, was minimal state pension in Ukraine.

Judge did not find any issue of credibility, finding that the Appellant does fulfil the requirements of genuine dependency as a direct family member of an EEA national. It was noted that a holistic examination of the circumstances of the case was required by the decision in Reyes 2013 UKUT 315.

Accordingly, the Appellant’s stroke and need of emotional, social, physical and financial support were taken into account, and genuine dependency found, notwithstanding state pension and ownership of a home in Ukraine.

 

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