Recent weeks have seen three important court decisions concerning the rights of EU migrants; Khan v SSHD, which deals with rights of appeal, Toufik Lounes v SSHD which considers the rights of EU nationals following naturalisation in the UK, and SSWP v Gubeladze, which looks at the legality of the accession regulations (the provisions that apply to nationals of new EU countries, restricting some of their activities in the EU). This post provides a breakdown of the facts of each case, as well as key points explaining benefits EU nationals should now see.
Khan v Secretary of State for the Home Department [2017] EWCA Civ 1755
The appellant was a Pakistani national who applied to remain in the UK as a dependant of his EU national uncle. The application was refused, but successfully challenged before the First-Tier Tribunal. Following a further appeal by the Home Office, the Upper Tribunal determined that Mr Khan should never have been permitted to appeal at all, in line with an earlier judgment in a case called Sala. Sala had effectively withdrawn the right of appeal from extended family members of EU citizens, leaving Mr Khan with no way to challenge the Home Office when they decided to refuse him.
The Court of Appeal then considered the issue, and decided that the previous Sala judgement was wrong. This decision restored the entitlement of extended family members to appeal against the refusal of residence documents.
Applicants who are now refused residence documents should have a right of appeal confirmed, giving them another application to succeed. In addition, anyone who was not permitted to appeal after the Sala decision could now apply for permission to bring their appeal before a judge, even if a long time has passed. This new decision in Khan therefore potentially benefits a lot of applicants, in new cases and old.
Toufik Lounes v Secretary of State for the Home Department, The Court (Grand Chamber), Case C-165/16
Ms Lounes is a Spanish national who acquired permanent residence in the UK and then chose to naturalise as a British citizen. The case centred around Ms Lounes' ability to sponsor her Algerian husband to live with her in the UK, and whether she could rely on EU law to do this, or was restricted to an application under the UK Immigration Rules, like any other British citizen.
Since 2012, the Home Office and UK courts have confirmed the latter. EU nationals who had chosen to take on the nationality of a different member state had been unable to continue relying on the benefits of EU free movement. This meant that any application to the Home Office attempting to rely on EU/British rights was refused.
The Court of Justice of the European Union has now published a contrary decision, observing that such a policy, which effectively causes EU nationals who have chosen to naturalise to be treated worse than those who have not, to be perverse. While acknowledging that some EU legislation ceases to apply after naturalisation, the court relied on the Treaty on the Functioning of the European Union to support their approach in this case. The court has used this before, paving the way for non-EU nationals to rely on a derivative right of residence, for example. The Home Office has been forced to change its approach in the past, most recently in Zambrano cases where a non-EU parent is a primary carer for an EU child.
However, as we saw when the derivative right of residence was confirmed, updates from the UK Home Office can be slow. As we move towards Brexit – currently still slated for March 2019 – any changes to current policy may be considered low priority, potentially making it difficult for British/EU nationals to persuade the Home Office to depart from the existing standpoint, at least initially. In addition, Home Office publications have so far failed to guarantee that derivative rights will be protected post-Brexit, meaning that there is uncertainty here too. It is entirely possible that an applicant who succeeds by relying on their EU/British spouse now, will simply lose their right of residence from 2019. As a result, despite the burdensome nature of an application under the Immigration Rules, this may be a safer option; the best route for you really depends on your individual circumstances.
Secretary of State for Work and Pensions v Gubeladze [2017] EWCA Civ 1751
Ms Gubeladze is a Latvian national who sought entitlement to pension credits on retirement. The SSWP wished to refuse her those credits because of her failure to register under a Worker Registration Scheme (WRS) previously mandatory under accession regulations applicable to citizens of Latvia.
The WRS was initially introduced between 2004 and 2009, and then in 2009 the UK authorities extended it for a further two years, something with which Ms Gubeladze had not complied. SSWP argued that pension credits could be withheld as a result, but the Court of Appeal disagreed. It was the court's opinion that there had been no reasonable need to continue the WRS from 2009, and doing so had been unlawful.
As a result, we now expect to see a change to Home Office guidance, confirming that no citizen of Latvia (or of the other affected countries; Czech Republic, Estonia, Hungary, Lithuania, Poland, Slovakia or Slovenia) should be asked to prove compliance with a WRS from 2009 onwards. This is of potential benefit to any EU national seeking to apply for a residence card relying on a qualifying residence period which includes 2009-2011, as fewer documents are now needed.