More on Metock

It's a big case

There has been a spate of big cases in the last few days. I’ll deal first with what is probably the most legally significant, ZH (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1060.

In ZH the Court of Appeal have confirmed for anyone that did not already know it that Regulation 12(1)(b)(ii) of the 2006 EEA Regulations is unlawful following Metock. Remarkably, a Deputy President of the tribunal, Ms Arfon-Jones, had refused to accept this, but the Home Office conceded at the Court of Appeal that the appellant had been right. However, the Home Office attempted to prop up the tottering decision by arguing that the marriage at the heart of the case was a sham marriage and the couple should not therefore benefit from it. The Court of Appeal gave this new point short shrift and pointed out that the facts found by the tribunal were that there was a genuine relationship between the couple.

Tantalisingly, Lord Justice Aitkens ends his judgment as follows:

For those reasons, I would allow the appeal. I am conscious, however, that serious and difficult issues arise which concern: (i) the interpretation of the word “spouse” and the phrase “marriage of convenience” for the purposes of the 2006 Regulations, (ii) whether it is the person seeking an EEA family permit or the SSHD that has the burden of proving that a marriage is a “marriage of convenience” for the purposes of the 2006 Regulations; and (iii) the nature and application of the “abuse of rights” doctrine for the purposes of the 2004 Directive and, therefore, the 2006 Regulations. The points were fully argued before us. These issues will be raised at the re-hearing before the tribunal. When I prepared a first draft of this judgment I thought it would be possible and right to express some views on all three topics, in the hope of assisting the tribunal, although my views would not, strictly speaking, have been necessary for my decision on this appeal. However, having considered the issues and after discussion with Rix and Wall LJJ, I have decided that it is not sensible to give any views on these topics. On further reflection I think it will be much better that the tribunal should first find the further facts that might be relevant and, if further issues of law arise, they will be considered on appeal if necessary.

So, the wait continues…

Filed under: Cases, Europe, Tribunal overturned again

Shifting goal posts

The Home Office do like to shift the goal posts. Sometimes this is because they lost another legal case and want to get around it, sometimes it appears to be for no reason at all and sometimes, just sometimes, it seems to be for clearly explained and understandable policy reasons.

The increase in the residence requirement for settlement was an understandable policy change. Previously immigrants needed to complete at least four years before being eligible for settlement, but in 2005 the Home Office re-wrote the rules and required everyone to complete at least five years.

Many immigrants were understandably upset by this, particularly those who were nearing the end of the four year qualifying period, whose leave ran out at that time and who suddenly needed to make very expensive immigration applications for a further year of leave to remain. Those with families who had to pay the additional fees for family members were no doubt furious. As usual, the Home Office failed to make any sensible transitional arrangements, such as waiving fees, only applying the policy to new entrants to the UK or similar.

Worse, though, some immigrants who had been specifically told they would be eligible for settlement after four years were also required to pay the aditional fees and complete the additional year. Some of those immigrants, represented by the HSMP Forum, just won their second case against the Home Office on this issue of shifting goalposts. Good on them.

The Home Office have announced that they are “currently looking into implementing the court’s decision”. Do not hold your breath. We had to wait months for the Home Office to consider their position after Metock and are STILL waiting for them to implement Baiai, in which the House of Lords held the marriage policy to be discriminatory and unlawful. The Gurhkas recently won another High Court hearing in which a judge held that the Home Secretary’s failure to implement an earlier judgment was itself unlawful – and in the meantime at least one of the potential beneficiaries of the case had tragically died.

The Home Office’s disregard for the rule of law is a disgrace.

Filed under: Cases

Free Movement is back

But lacks the energy to write anything intelligent. Par for the course, some might claim. I have however been deleting the many comments I now unfortunately receive asking for legal advice. Inevitable, I suppose. Instead of informed, witty, incisive commentary I shall content myself with some random alerts:

• Metock guidance is finally available. The Entry Clearance Guidance has been amended at chapter 21 and the European Casework Instructions have been amended at chapters 1, 2, 3 and 5. I haven’t managed to scan in Operational Policy Instruction 103, which came with the January ILPA mailing and as far as I know doesn’t yet exist on the internet. Analysis to follow, maybe.
• Still no news on Baiai or on RN (Zimbabwe).
• Woolas’ ramblings on cutting back on judicial review have been revealed as hot air. There’s a new policy not to automatically suspend removals where exactly the same grounds are relied on within three months of the last ones. I know there are some chancers out there but I can’t imagine there are many example of this and even Lin Homer has said she doesn’t think many cases will be affected.
• Free Movement is considering a loose tie-in with HJT Training to help pay the actual and virtual rent. Perhaps a page on the top bar next to ‘Archives’. I’ve attended their courses before and would in fact be happy to endorse them. Thoughts on selling out (selling out what exactly?) etc sort of welcome.

Filed under: Blog news

Spouse and partner visa concession

UKBA have announced a limited concession to the rise in the visa age to 21 for spouses and partners. The concession is simply that the rule will not be applied to spouses and partners seeking entry to accompany or join immigrants in the temporary visa categories, such as students or Points Based Scheme migrants. The rise will continue apply to spouses and partners accompanying or joining persons present and settled in the UK.

This is rather odd, to put it mildly. It looks a lot like the reverse discrimination commenters on this blog have legitimately raised with regards to Metock and EEA citizens, where British citizens have far less extensive rights to be joined or accompanied by family members. Temporary migrants can be joined by spouses and partners under 21; British citizens and those with ILR cannot.

And how does this concession fit with the stated aim of reducing forced marriages? No explanation is given as to how this is consistent with the supposed aim, nor can I imagine reasons justifying how it fits with it at all. In my opinion, the concession further highlights the real aim of this discriminatory measure: preventing British Asians and minorities from marrying abroad.

The concession will be more grist for the legal mill when challenges against refusals start to come through. I reiterate my earlier opinion: anyone refused on the basis of being between the ages of 18 and 21 who can show they are not party to a forced marriage (which is pretty easy to do!) has a very strong case based on human rights and discrimination law.

Forced marriages are appalling and a very serious issue, but this is not the way to deal with the problem. It is disproportionate and disingenuous.

Filed under: Immigration rules, Spouse visa age

Permission to work for Legacy cases?

The case does not mean an automatic right to work

An interesting judgment has just come out in which the High Court has held to be unlawful the policy of a blanket denial of right to work for those caught in the Legacy backlog. It is called Tekle v Secretary of State for the Home Department [2008] EWHC 3064 (Admin). 

This does not mean that those in the Legacy will be granted the right to work. It means that the Home Office have to go away and re-think their policy. It would be open to them to maintain a selective ban on employment in certain cases or even perhaps to maintain a blanket ban, if they put forward better justification and some evidence. They have approximately three months to comply, otherwise there will be further legal action.

Given appalling and very damaging recent Home Office tardiness over Metock and Baiai, it would not be at all surprising if the three month deadline slipped. The Home Office are not good losers.

Filed under: Cases, Legacy

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.

Filed under: Cases

Metock rejected by Tribunal

Further to my last post on this subject, it turns out that my surprise was entirely justified, as a different and more senior panel of the tribunal has decided, basically, that Metock changes nothing and it should be business as usual. The case is SM (Metock; extended family members) Sri Lanka [2008] UKAIT 00075.

Rick Scannell

It seems to me that the tribunal is behaving increasingly like a party to proceedings. Collectively, through the reported and starred determinations system and probably through training and the online judicial discussion forums, the tribunal adopts somewhat tenuous but almost always conservative legal positions and then seeks to argue and defend them. This case is a classic example of this tendency. The tribunal is simply unwilling to let go of a legal stance that is clearly in conflict with a binding judgment from the European Court of Justice. The arguments relied on by the tribunal show no recognition of the basic principles of EC law. On whether that is through ignorance or is wilful I will not comment, but in this case the tribunal had the benefit of advocacy by one of immigration law’s leading barristers, Rick Scannell, who is a particular expert on EC free movement law.

The recent Court of Appeal case of GOO highlights another example of a stance that the tribunal has sought to maintain against higher court authority but finally seems to have lost, in that instance. See – I find myself referring to the tribunal ‘losing’ an argument. How can that be right for an impartial and neutral tribunal?

Thanks to those who left comments on my original Metock post.

Filed under: Cases

Metock accepted by tribunal

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.

Filed under: Cases, Tribunal overturned again