Barar Associates News - Barar Associates

16
Nov

EU CITIZENS WHO BECOME BRITISH KEEP FREE MOVEMENT RIGHTS

Toufik Lounes v Secretary of State for the Home Department C-165/16 (14 November 2017)

In a landmark judgment, the Court of Justice of the European Union (CJEU) has found that EU citizens who become nationals of another EU Member State retain the right to have a non-EU spouse live with them.

The Court found that the British government had breached the rights of a dual British-Spanish citizen seeking to have her Algerian husband live with her in the UK by denying him permanent residency.

The conditions for the grant of a right of residence for a non-EU spouse must not be stricter than those laid down by the free movement directive.

The Secretary of State for the Home Department stipulated that under the UK legislation implementing the free movement Directive 2004/38/EC, the Spanish national had ceased to be regarded as an ‘EEA national’ following her acquisition of British citizenship. Her husband could not therefore claim a residence card as a family member of an EEA national but had to follow the UK Immigration Rules which are stricter.

The directive does not confer any autonomous right on family members of EU citizens who are non-EU nationals, but only derived rights from the rights which the EU citizens concerned enjoy as a result of having exercised their freedom of movement (move to and reside in a ‘Member State other than that of which they are a national’).

The Court stated that if a EU national acquires British citizenship, the directive will cease to govern his residence in the UK and will no longer apply to him.  Consequently, his spouse would not benefit from a derived right of residence in the UK on the basis of the directive.

However, a non-EU national and family member of the EU citizen, may be eligible for a derived right of residence based on Article 21(1) TFEU where the grant of such a right is necessary to ensure the effective exercise by the EU citizen concerned of his freedom of movement and of the rights which Article 21(1) TFEU affords him (the right to lead a normal family life, together with family members, in the host Member State).

EU nationals must be able to continue to enjoy their right in the host Member State, after they have acquired the nationality of that Member State in addition to their nationality of origin. They must be capable of building a family life with their third-country-national spouse, by means of the grant of a derived right of residence to that spouse.

Otherwise, it would be contrary to the logic of gradual integration in the host Member State because EU citizens will be deprived of the right to a normal family life in the host Member State as they have sought, by becoming naturalised in that Member State, to become more deeply integrated in that State.

15
Nov

R (on the application of Anjum) v Entry Clearance Officer, Islamabad (entrepreneur ”business expansion” fairness generally) [2017] UKUT 00406 (IAC)

Judicial Review Decision Notice Summary

 

Facts

The applicant, Mr Nadeem Ahmad Anjum, made a Tier 1 Entrepreneur application which was initially refused by the Entry Clearance Office (ECO) on 18th February 2015. This was on the basis that Mr Anjum did not satisfy the requirement under the Immigration Rules paragraphs 245 D & DB that he needed access to a ‘minimum of £200,000 which is held in one of the regulated financial institution and is disposable in the UK’.

The applicant challenged the above refusal on the grounds of procedural unfairness and misconstruction of the Rules.

Decision

The initial refusal was based on the interview by the ECO that :

  • The applicant did not have viable or credible documentary evidence to funds of £200,000
  • Under paragraph 245 DB (f) (iii) £200,000 were not available until such time as it is spent for the purposes of the business because Mr Anjum wanted to spend the monies on purchase of ebay shop for £50,000 from the funds. Therefore, the remaining balance of £150,000 could not be satisfied as required under the Rules.
  • The applicant did not have sound knowledge of his business plan.
  • The applicant failed to answer on the business projected turnover for 2016. Therefore, the ECO concluded that a reasonable entrepreneur would be expected to have good grasp of his business’ finances and did not reflect the market research.

Upon administrative review, the 1st ground of refusal was dismissed on the basis that the interview was flawed. The ECO did not clarify further on the source of availability for the funds and that the applicant’s response to the availability of requisite fund of £200,00 was misinterpreted.

But the 4th ground was sustained because that the applicant answered that the business projections was significantly less than the projection in his business plan. The ECO found that this undermined overall credibility and could not be expected of a genuine entrepreneur with a viable business plan.

The fact that the interviewing ECO was ‘rude and confrontational’ could not be put forward as an argument.

Fundamentally, during the interview with ECO, the applicant’s answers to some important questions were ‘incomplete, unclear or unintelligible’ in which case the ECO had to follow up to get clarification, explanation and elimination. But the ECO failed to do so as required under the fairness protocol.

Procedural Unfairness 

Both ECO and ECM failed to understand that the applicant’s answer in relation to projected turnover was in relation to his existing business and not the future expansion of the proposed business. In the business plan it was clearly stated that the applicant intended on expanding his existing business. The ECO and ECM did not ask any questions regarding applicant’s business plan nor was any further question was asked on applicant’s response to ‘what is your projective turnover?’.

It was ruled that the word ‘turnover’ was both confusing and unfair because the applicant did not use the term ‘turnover’ in his business plan therefore it should have been probed in more detail by the interviewing ECO.

The applicant was a Pakistan national who needed an interpreter to answer ECO’s questions. No audio recording was taken, only written record of the ECO who was both questioning and writing at the same time. Therefore, the Court ruled that it was procedurally unfair to reject Tier 1 Entrepreneur application on the basis that the applicant failed to answer some questions which should have been probed and clarified by the interviewing ECO.

It was further highlighted that where a migrant is being interviewed, the principle of procedural fairness dictates that every context must be taken in to account. The court acknowledged that misinterpretation can and do occur when interviewing migrants. So where written interview is used to assess the application, the applicant must be given means to ensure all the written record is accurate and reliable. Critically, successive failures to respond to requests to disclose the interview record were in breach of the guidance.

Furthermore, the Court upheld applicant’s challenge that the Rules were misinterpreted.

Favourable facts of this particular case was that the applicant responded to the initial refusal within 2 days. Applicant’s solicitors further responded to the Respondent’s  defence by submitting an ‘ Amended Grounds and Reply’. This is expressly permitted and is a useful device which is strongly recommended by the Upper Tribunal.

Crucially, para 245D(ii)(2) does not exclude existing businesses. The Rules do not prevent the applicant from using the £200,000 to purchase a second business for the purposes of expanding an existing business; in this case by purchasing an existing ebay shop.

30
Oct

Message to EU citizens living in the UK

THE PRIME MINISTER, THERESA MAY, ANNOUNCED EU NATIONALS’ RIGHTS WILL BE SAFEGUARDED

It has almost been a year since Article 50 of the Lisbon Treaty has been triggered and both EU citizens living in the UK and UK citizens living in the EU have been wondering about what will happen to their residency status once the United Kingdom leaves the European Union. The truth is that no one knows for sure what will actually happen.

The Prime Minister, Theresa May, has recently travelled to Brussel to meet the leaders of the 28 nations in the EU. Following this meeting, she has confirmed that her priority is to safeguard the rights of EU nationals living in the UK and UK nationals living in the EU:

“But this agreement will not only provide certainty about residence, but also healthcare, pensions and other benefits. It will mean that EU citizens who have paid into the UK system – and UK nationals into the system of an EU27 country – can benefit from what they’ve put in. It will enable families who have built their lives together in the EU and UK to stay together.
[…] we are united on the key principles, and that the focus over the weeks to come will be delivering an agreement that works for people here in the UK, and people in the EU.”

She has stated that EU nationals living lawfully in the UK today and their family members will be able to stay as they have been contributing to the UK and have built their family life here

Furthermore, the Prime Minister has addressed that the Withdrawal Agreement will provide certainty about right to reside in the UK, healthcare, pensions and other benefits for EU citizens who have paid into the UK system, and vice versa for UK nationals into the system of an EU27 State.

She has also mentioned that the UK government is looking forward to developing a streamlined digital process for those applying for settled status in the UK in the future. This system is claimed to be less bureaucratic as possible and will cost no more than the UK passport (£72,50 for an adult).

Most importantly, the Prime Minister has confirmed that applicants will not have to account for every trip they have taken in and out of the UK and not have to demonstrate Comprehensive Sickness Insurance.

For those EU citizens who hold Permanent Residence, there will be a simple process allowing them to swap their status for UK settled status (Indefinite Leave to Remain). Moreover, a User Group will be created and composed of representatives of EU citizens in the UK, and digital, technical and legal experts. This Group will be in charge of ensuring the transparency and efficiency of the new process.

Finally, according to the Prime Minister, the UK government is keen to work closely with the Europe Union to ensure their processes are equally streamlined.

 

If you have questions about your immigration status or need advice on the matter, please feel free to contact our senior solicitor Pam Barar or our immigration team.

9
Oct

How to protect EEA citizen status from unpredictable changes of Brexit?

EEA Citizens after Brexit

 

As never before in the United Kingdom, we have seen an exponential increase in discussions pertaining to immigration law and its effects. This is due to the ground-breaking news regarding the UK’s shock decision to leave the EU and the ramifications for EEA citizens.

For the UK to quit the EU, amongst other things, it had to invoke Article 50 of the Lisbon Treaty, which gives the European Union and the United Kingdom two years (or more depending on reaching an agreement or not) to negotiate Brexit.

In short, any EU member state which decides to leave the EU shall notify the European Council in accordance with the above-mentioned article, in order to initiate negotiations for an exit.

According to Michel Barnier, leader of the Brexit negotiations for the EU, when interviewed by BBC London, he stated that the UK’s proposals did not go far enough and he wanted the same level of protection citizens have under EU law.

Moreover, we cannot say for sure what will happen after the negotiations between EU and UK reach an agreement. However, it is recommended for EEA nationals to apply for a Permanent Residence card which will allow EEA citizens, amongst other things, to work and live in the UK without any limit despite the unpredictable forecast for EEA citizens and their rights.

Although applying for a Permanent Residence card is the recommended thing to do, you will need to meet certain criteria. As a general rule, in order to be eligible for a Permanent Residence card, EEA nationals should have been continuously living in the UK for at least 5 years, whilst also having been exercising their Treaty rights.

We strongly advise you to apply for a permanent residence document if in addition to having been living in the UK for 5 years:

 

  • You are a family member of someone from the European Economic Area or Switzerland;
  • You are an EEA National.

 

Another relevant benefit a permanent card gives you is the possibility of applying for British citizenship once you have held permanent resident status for at least 12 months, unless you are married or in a civil partnership with a British citizen.

For the purposes of the 1971 Act and the British Nationality Act 1981, a person who has a permanent right of residence under regulation 15, shall be regarded as a person who is in the United Kingdom without being subject under the immigration laws to any restriction on the period for which he may remain.

Lastly, it is important to mention that applying for a residence card is not a minimum requirement for permanent residence, however it would be extra evidence which may assist your application. Also, if you have been living in the UK for a period shorter than 5 years, you will not qualify for the Permanent Residence card/status.

 

If you have questions about your immigration status or need advice on the matter, please feel free to contact our senior solicitor Pam Barar or our immigration team.

We take the stress of visa applications away from you and assist you from start to finish. That is why many of our both private and corporate clients choose us.

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