The Case

The appellant, a citizen of Bangladesh, claimed her date of birth to be 16 November 1987.  In August 2009, the appellant applied for entry clearance to the UK as the spouse of a settled person. But in April 2010, the Home Secretary refused the appellant’s application.

The reasons for the refusal were two-fold: firstly, the appellant had before applied for entry clearance as a visitor and had been refused. In that application, the appellant gave her date of birth as being 16 November 1990. For the application subject to the current proceedings, the appellant claimed her date of birth was in fact 16 November 1987. She produced an education certificate showing this new date of birth. But, as we’ve come to expect of this twist-and-turn world of immigration, a document verification report revealed that the certificate was not genuine.

Consequently, the Home Secretary refused the entry clearance application by reference to paragraph 320(7A) of the Immigration Rules, which requires that entry clearance be refused:

…where false representations have been made or false documents or information have been submitted (whether or not material to the application, and whether or not to the applicant’s knowledge), or material facts had not been disclosed, in relation to the application.

First tier tribunal

The First tier tribunal judge concluded that the appellant had submitted a false education certificate in order to make her appear older than her true age – likely due to the Immigration Rules (paragraph 277) requiring the appellant not to be under the age of 21 on the date of arrival in the UK.

Double miss!

The judge concluded that the appellant not only failed to satisfy the paragraph 277 requirement, but that she also provided a false document in support of her application, “attracting refusal under paragraph 320(7A)” – see above.

Article 8 ECHR

The judge was satisfied that there was no significant evidence to show that the appellant and her husband had “established a family life together” or that “the marriage was genuine and subsisting” – both requirements of Article 8.

Upper Tribunal

The Upper Tribunal (UT) concurred with First tier tribunal’s conclusions as to the the false D.O.B:

These matters fully persuade us that deception had been sought to be practised on the [Home Secretary] in relation to the current application, where the appellant’s date of birth has been falsely given as 16 November 1987.

The Tribunal concluded:

Whoever put forward the false materials plainly did so dishonestly. The motivation was obvious: to pretend that the appellant was over the age of 21, so as not to fall foul of…the Immigration Rules.

The UT had considered that the appellant might have been an innocent party in all this and that someone else might have given the false D.O.B in the initial application. The UT was, however, unsympathetic:

It matters not that the appellant was not herself dishonest, although she would have to have been extraordinarily supine not to have been aware of what was being done on her behalf.

Article 8 of the ECHR…again

The appellant’s lawyer argued if the appellant were now to make a fresh application for entry clearance as a spouse, she would meet all the requirements of paragraph 277. Dishonesty inherent in a previous application shouldn’t be a factor. So, as was argued, “it would be a disproportionate interference with the rights of the appellant and the sponsor under Article 8 of the ECHR to require the appellant to go to the trouble of making a fresh application for entry clearance.”

Chikwamba

The appellant’s lawyer cited the case of Chikwamba to bolster his argument. Chikwamba centred on the question of whether it was proportionate to require a person to go abroad in order to make a fresh application for entry clearance to the UK as a spouse. The House of Lords agreed that it would be “a disproportionate interference with the Article 8 rights of the appellant and her family”. That the appellant in this case made her application as a spouse was where the likeness to Chikwamba ended, thought the UT. The UT was not willing to overlook the matter of dishonesty, a factor not relevant to Chikwamba:

There are clear, cogent policy reasons why an application tainted by dishonest representation…should be refused.

Although past dishonesty should not be taken into account when considering fresh applications, the UT made clear that it should not also mean that dishonesty cannot be taken into account for Article 8 purposes:

The fact that someone cannot have past dishonesty held against them in their next application for entry clearance does not mean that it must necessarily be regarded as disproportionate in Article 8 terms to refuse their present application, on the basis of that dishonesty.

Decision

The UT decided:

The application the appellant made to the [Home Secretary] was marred by dishonesty. Those who engage, or who might be tempted to engage, in dishonest attempts to deceive the United Kingdom authorities in relation to immigration control need to be aware that such actions will have disadvantageous consequences for those who are the intended beneficiaries of the dishonest conduct.

Requiring the applicant to return to their home country before making a fresh entry clearance application won’t always be proportionate, even where dishonesty is a factor. But the point is paragraph 320(7A) will not be “read down”; that is, the legislation will not be limited so as to achieve an outcome compatible with Article 8 or indeed domestic legislation. But “each case ultimately turns on its own facts”.

The problem I highlighted is that overseas students are included in the net migration figure (which the Government looks to reduce); but approximately 15% of them shouldn’t be – they’re packed into a class of migrants who generally stay in the UK for a lot longer – e.g. spouses. Universities UK, an organisation which represents 134 universities, has attacked what the Institute of Public Policy Research referred to as a “[Government] desire to ‘game’ its own net migration target” saying that limiting overseas student numbers will cost universities, and the UK, billions.

Limiting student figures

In their quest for lower net migration, as the Guardian  reports, the Government will modify student visa regulations by “[placing] a limit on the number of years non-European Union students can spend studying and restrict the number of hours of paid work they can do during and after their degrees”. Furthermore, “ they are no longer allowed to bring their spouses or children with them unless they are enrolled on a postgraduate course that lasts more than a year.”

Universities UK

In 2005, the then-president of Universities UK, Professor Drummond Bone, said:

The Government has previously invested in marketing UK education abroad through the Prime Minister’s Initiative, so we are calling today for more of the same and for other new ideas to attract overseas students. Our ability to recruit the ablest students, and staff, from around the world is critical to our long-term success…In an increasingly competitive market, we need Government support to make the UK more attractive as a study destination, particularly when OECD figures show we are losing out to our competitors in America and Australia in our efforts to recruit internationally.

Today we have a Tory led coalition government (instead of a Labour led one); competition is even more intense; and UK universities continue to lose out to their competitors abroad. But the Government’s unremitting pursuit of lower migration figures deteriorates the UK’s hopes of remaining competitive in the international student market.

Current Universities UK president Professor Thomas says the UK makes around £5bn a year through overseas students. Worse than losing a significant portion of this figure, we risk damaging an industry which he says could be worth £16.9bn by 2025. Not to be shrugged at. The new policies will deter overseas students from coming to the UK. Mr Thomas  called the Government’s policies a ”misunderstanding about the positive contribution international students make”. He concluded:

The government’s approach to student visas must be proportionate and workable, and should not be imposed at the expense of our international reputation and our economic growth…

What’s their game?

The Government’s plan to curb the numbers coming into the UK is no secret. What is less known, however, is the statistical engineering that has gone on to ensure that overseas students are counted in that net migration figure. This has been criticised and laid bare by the IPPR. While others individuals comprised in the net migration figure tend to stay for longer – e.g. here on Indefinite Leave to Remain or spouse visas – many overseas students tend to leave after just a year or two. This has resulted in skewed data. The report says that only the 15% of overseas students who stay to live and/or to work permanently should be included in the net migration figure.

The IPPR has theorised as to why the Government insists on including more overseas student than it should in the net migration figure. As the report concludes:

The decisive reason why the UK government is sticking with the current method of measuring student migration flows is not a genuine concern with long-term net migration but a desire to ‘game’ its own net migration target by banking large apparent reductions in 2013 and 2014 which reflect the limitations of the current method of measurement rather than real changes in long-term net migration trends.

Strong words, certainly. So when those short-termers flee, the Government moves closer to it’s 100,000 net migration target for 2015. Dodgy data indeed.

US 1, UK nil

The report also compare the UK unfavourably with other countries with significant overseas student populations – such as US, Germany, Australia and Canada. For example, of the US’s mode for migration data collection, the report says:

…while international students are technically captured in the [net international migration] figures produced by the US Census Bureau, they do not show up in the permanent immigration statistics.

If we were to adopt the US system for collecting and presenting migration data, overseas students wouldn’t be included in the net migration figure.

Criticism

Universities and economists have criticised the move and the IPPR’s report closes with a scathing attack on current practices:

This policy stance is likely to have real and damaging consequences for the UK education sector, and the wider economy. It prevents a more honest debate in which the r eal and relatively modest increases to long-term net migration would be weighed against the benefits to the UK economy.

He was excluded from the UK pursuant to Part 9 Clause 6 of the Immigration Rules:

…where the [Home Secretary] has personally directed that the exclusion of a person from the United Kingdom is conducive to the public good.

Canvassing the comments attached to the Guardian poll, we notice a heavy serving of vitriolic rhetoric – of special concern to some of the commenters is the disparity in the treatment of Mr Larkin and so-called fundamentalist preachers; the recency of the Abu Hamza and Abu Qatada cases make the comparison an obvious one. But it’s important to remember here that, whereas Messrs. Hamza and Qatada have (or had) subsisting rights in the UK by virtue of their residence here  (for example, Hamza has been in the UK in some capacity since the late 70s), Mr Larkin has none (despite what the whim of public outrage prescribes).

Conducive to the public good?

A Home Office spokesperson said Larkin’s target focus training could create “excessive violence and vigilante-type behaviour.” As per his website, Larkin is unequivocal in his approach to combat training. Of violent confrontations he says:

 …the only thing guaranteed to get you out alive is injuring your assailant.

Larkin was coming to the UK to deliver speeches at The Martial Arts Show in London and Birmingham. There is something in the argument that, less than a year on from the London Riots, wary citizens are looking for ways to protect themselves from future attacks. And in this wary state, might they be easily seduced by the no-nonsense Larkin philosophy?

Perhaps, but even so, is Larkin encouraging violence per se? This is of great relevance as it is on this ground that he was denied access. Responding to the Home Office decision, Larkin said:

This is not being a vigilante. You are sitting in your house and you’re being attacked, or you’re attacked out in the street… There’s an awful lot of martial arts and self defence being taught there right now that gives no instruction on [how to hurt] the human body.

What do you think? Was the Home Office right? Or should Larkin be allowed entry into the UK?

The claimant’s appeal was based on the argument that the Home Secretary was wrong to view new evidence as not giving rise to a fresh claim for asylum. There were numerous factors at play in this case. And here we focus on the most forceful of these; the one which saw the High Court allowing the appeal – claimant credibility.

Setting the stage, the Court (citing the Wednesbury grounds) said:

The Secretary of State has to ask herself the question “whether an independent tribunal might realistically come down in favour of the applicant’s asylum or human rights claim, on considering the new material together with the material previously considered”

Case background

The claimant, an Iraqi national, came to the UK in August 2006, having fled Mosul (northern Iraq). In his claim for asylum, he said that if he were sent back to Iraq, he would face “mistreatment” because of his Christian religion and his “perceived sympathy with [the UK]“. On his return to Iraq of his own accord, in July 2006 the claimant received a threatening letter warning him to “leave Muslim lands or be killed”.

The Home Secretary refused his claim for asylum in September 2006 saying  it was reasonable to expect him to relocate to a part of Iraq other than Mosul (where his troubles lay). Following dismissal of his appeal against the Home Secretary’s refusal at the Asylum and Immigration Tribunal, on determining that there had previously been an error of law, a senior immigration judge ordered that the appeal be reconsidered; the first judge had only considered whether it would be “safe” for the claimant to relocate within Iraq, when he should also have considered whether it would have been “reasonable” for him to do so.

At the new hearing in July 2009 the claimant’s case was again dismissed. While it was accepted that the claimant was at risk in Mosul and “could not reasonably be expected to relocate to the centre or south of Iraq”, the Tribunal concluded that it had not been shown that he could not access other northerly regions of Iraq (here called the ‘Northern Governorates’). The Tribunal concluded that, although one might need sponsorship to gain access to these ‘Governorates’, in light of the “considerable numbers of Christians in the Kurdish Regional Government (KRG)”, the claimant should “not experience any particular difficulty in obtaining sponsorship and that it would not be unduly harsh for him to be expected to do so”.

New evidence

The claimant’s brother tried to gain access into KRG, but was refused and beaten. The claimant used this as an example of how people who did not help Kurds during Saddam’s regime were treated as being in cahoots with the regime and, therefore, couldn’t gain access to the KRG. The claimant argued that this new evidence should be treated as giving rise to a fresh claim for asylum (in accordance with paragraph 353 of the Immigration Rules).

But, in March 2011 the Home Secretary refused to accept the representations as giving rise to a fresh claim. To the claimant, she wrote:

…nothing is known about your ]brother’s] background other than he is a Christian and therefore it is only your bare assertion that he has been refused entry to the KRG region because of your family name…It is not clear from your submissions whether you [sic] brother actually gained entry into the KRG for an initial period or was refused entry at the border before being arrested and detained.  Moreover, as stated above, there is no evidence that any militia outside the Mosul area would have any interest in you and the objective evidence states that there are many families of the Christian faith who have relocated to the KRG area.

The claimant had also given representations as to his brother’s physical state by putting forward medical evidence. In rejecting the medical evidence, the Home Secretary said:

While [your brother's] injuries are noted, as stated there is no evidence that this was at the hands of the Kurdish authorities in the circumstances you claim…no indication is given to demonstrate what [your brother's doctor] runs this surgery or why you have not provided evidence of any proof of postage or packaging to verify when this was actually sent from Iraq…for these reasons, this medical report is given little weight in support of your claim for international protection in the UK.

In February of this year, further representations were submitted by the claimant; an updated medical report and new evidence that he’d appeared on a TV channel associated with Saddam’s regime. The Home Secretary struggled to give credence to both the doctor’s evidence, and the new ‘TV’ evidence. But the Court outlined what was required of the Home Secretary:

The [Home Secretary] has to ask herself the question “whether an independent tribunal might realistically come down in favour of the applicant’s asylum or human rights claim, on considering the new material together with the material previously considered”.

High Court

Allowing the appeal

The claimant’s representatives had cited the 3 reason in seeking permission to appeal to the High Court (the Court):

1. There was an irrational approach to the Claimant’s evidence in the light of previous findings on credibility.
2. There was an irrational approach to the evidence of the assaults on the Claimant’s brother, in that a more stringent test was applied than that of merely a “realistic prospect of success”.
3. The approach to the evidence regarding the television work was irrational and/or the Secretary of State’s reasoning was inadequate.
4. The Secretary of State failed to consider the evidence from the perspective of an immigration judge.

Permission was granted on grounds 1 and 4. And, ultimately, in considering that the Home Secretary was entitled to regard points 3-4 as she did, the Court allowed the appeal on ground 1:

In effect, the [Home Secretary] was required to decide whether there was a realistic prospect of an immigration judge finding the Claimant’s evidence credible…There must be some rational and cogent ground available before the [Home Secretary] comes to the decision that the new evidence is so incredible that there is no realistic prospect of an immigration judge accepting it.

A “realistic prospect”

In deciding whether there is a realistic prospect of an immigration judge finding the claimant’s evidence credible, the Home Secretary is required to don a metaphorical ‘judicial hat’. What is defined as realistic here is that to an immigration judge. Of course, the Home Secretary cannot ever say with certainty what an immigration judge will decide as to a claimant’s credibility. But she must summon her knowledge and experience of the judicial process in arriving at her determination. And herein lies the difficulty which goes to the heart of this case.

New medical evidence

So in pooh-poohing the new medical evidence pertaining to the claimant’s brother, did the Home Secretary have ” some rational and cogent ground”? Was there “no realistic prospect” that an immigration judge would accept it? The Home Secretary said:

The attempt to remedy the absence of any address for [the claimant's brother's doctor]…served only to heighten suspicion as to the authenticity of this medical evidence.

By having a question mark dangling over the new medical evidence, the Home Secretary was convinced that no such evidence would be accepted by an immigration judge. But the High Court wasn’t satisfied, and of this it was said:

…it is quite conceivable that the immigration judge would reject the medical evidence, but it is surely premature to conclude that it would be fanciful for him to do other than reject it as a forgery.

New ‘hearsay’ evidence

In granting permission for the case to go to the High Court, Mitting J had said:

It is at least possible that, applying the lower standards of proof applicable to an asylum/Article 3 claim, an Immigration Judge will find that the Claimant has truthfully related what his brother has told him and that there is a real likelihood that it is true.

The Court notes that The Home Secretary had criticised that hearsay evidence is relied upon “despite the fact that it has become very common in civil litigation to do so”. The Court goes on to say

In his original appeal, the Claimant’s credibility was not impugned.  The allegations which he makes are based on single hearsay:  what his brother Mazim told him, and are consistent with a contemporaneous medical report on his brother’s condition.

In essence then, what might give weight to hearsay evidence is “previous findings on credibility” and its concordance with other evidence. Of this the Court said:

…it would be quite possible for an immigration judge to come to the conclusion that he found the single hearsay evidence as to the brother’s experiences credible.

Comment

The case highlights a difficulty for the Home Secretary; by requiring her to decide what an immigration  judge might consider as credible evidence, she is essentially being asked to step into the shoes of a judicial decision-maker. But the details of the case make clear the trouble the Home Secretary has with making conjectures as to what the judiciary may or may not consider as acceptable; for example, the Court were left dissatisfied by how little weight the Home Secretary had given to the claimant’s credible character, and by the manner in which hearsay evidence was given practically no weight (despite the “lower standards of proof applicable to an asylum claim”).

It seems that, particularly where the claimant can show “previous findings on credibility”, the Home Secretary must not be so quick in deciding that evidence – even that as flimsy as hearsay or unsubstantiated medical reports – will be unacceptable to an immigration judge.

What are your thoughts on this? Please leave a comment.

The case

The appellant is a Jamaican national born in 1985. He moved to the UK at age 11 and, up to the point deportation proceedings were issued, had lived here for 14 years – albeit illegally. Following a conviction for possession of class A drugs, in December 2007 the appellant was issued with a deportation order. He appealed and in October 2009 the First Tier Tribunal (FTT) allowed his appeal on the grounds that “his removal to Jamaica would involve a disproportionate interference with his right to family and private life contrary to Article 8 of the European Convention on Human Rights”; the appellant had a partner, with whom he also had a son.

The Home Secretary appealed to the UT against the FTT decision. And in August 2010 the UT found that the FTT had committed an error of law and called for there to be a fresh hearing before the UT.

The UT hearing included testimony and an expert report from a psychotherapist who gave evidence about the relationship between the appellant, his partner and his son and what effect the appellant’s deportation might have on each of them.

The fresh UT hearing

At the new hearing, the UT dismissed the appeal for a variety of reasons, which included:

• the appellant (who had a previous conviction for robbery in the course of which the victim was threatened with a knife) posed a significant risk to the community;
• neither the appellant’s mother nor his partner had sufficient influence over him to prevent his re-offending;
• the offence for which he was sent to prison was serious and would have attracted a sentence of several years imprisonment but for the guilty plea;
• accordingly, it was reasonably open to the respondent to make a deportation order in respect of the appellant;
• the appellant had never lived with his son and was not likely to do so in the immediate future; the FTT had not been given a full picture of the appellant’s relationship with his son and was not satisfied that that it outweighed the legitimate aim of protecting the public from him;
• the relationship between the appellant and his partner was tenuous and his removal and the consequent disruption of their relationship would not involve a disproportionate interference with the Article 8 rights of either of them; in any event, it would not be unreasonable to expect the appellant’s partner to move to Jamaica with the appellant; his son was young and could adapt to life in Jamaica;
• the appellant’s offences were serious and he posed a risk of further offending and;
• there was little evidence that the appellant had worked or that he had significant friendships in this country that would be disrupted by his removal

The Court of Appeal

The grounds of appeal are based on the argument that the UT failed to consider the appellant’s son’s best interests as required by the Supreme Court decision in ZH (Tanzania); that it failed to consider the appellant’s, his partner’s and his son’s family and private life; that it failed to take into account important evidence; and finally that it failed to consider “whether the nature of the appellant’s offending was so serious as to justify his removal”. Here, we focus on the decisions relating to consideration of the appellant’s son and to the appellant’s Article 8 right to family and private life.

Interests of the child – a “primary consideration”

In the case ZH (Tanzania) it was held that the best interests of a child – who may be affected by the deportation of a parent – must be treated as a primary consideration. Furthermore, in ZH Lady Hale said:

Although nationality is not a ‘trump card’ it is of particular importance in assessing the best interests of any child.

The appellant’s son is a UK citizen having been born here. So this would certainly have given weight to the appellant’s case. Of the manner in which the UT considered the welfare of the appellant’s son, the Court – in the current case – said:

The case called for a careful appraisal of [the appellant's son's] circumstances and the extent to which his welfare would be better served by allowing the appellant to remain in this country, thereby making it possible for the child to develop a proper relationship with his father of whom he will otherwise have no recollection…In order to do justice to [the appellant's son's] position, [the UT] ought to have made careful findings about that and should have considered how the relationship might develop in the future if the appellant were allowed to remain in this country. That would have enabled [the UT judge] to decide what was in the child’s best interests.

The right to private family life

In considering the appellant’s right to family life, the Court said:

“…although [the UT judge] spent some time examining the nature and extent of the appellant’s relationship with the different members of his family…[he] did not explicitly draw the different strands together before deciding whether…removal was proportionate in this case.

The Court appeared unimpressed with how the UT had merely brushed over the appellant’s private life without giving it due consideration; the appellant had, after all, lived in the UK for 14 years. To make presumptions about the relationships and ties the appellant may or may not have made was unacceptable to the Court.

Decision

The Court was resolute in its decision that the welfare of a child is a priority consideration – especially where the child is a UK citizen, and that private and family life must be fully considered where deportation proceedings are to take place. It wasn’t so much for the fact that the UT was wrong in deciding that deportation was proportionate in the circumstances, but more the flimsy manner in which they arrived at their decision which the Court rejected. For such serious considerations as children and family, special attention must be paid.

The case

The Judgment itself makes for interesting, and frustrating, reading. During a series of misgivings, the Home Secretary found herself unable to deport an individual – whose real name is still a matter of some contention – to Cameroon, the claimant’s country of origin. Or was it? A brief summary of the somewhat baffling details of this case are here included.

In April 1999 the claimant obtained residency in the UK by using a forged document. During the period of 2001 to 2004 the appellant was convicted of a series of offences, all of which seem to involve deception and/or blackmail. In February 2008 he was convicted of possessing a ‘false instrument’ and was later that month sentenced to 1 year, 2 months in prison.

The Claimant was interviewed in March 2008 and served with a decision for deportation and detention paperwork.

Deception and lack of cooperation

Thereafter began the struggle to determine the claimant’s true identity and true country of origin. The Home Secretary made numerous attempts to deport the individual but they were constantly frustrated by the claimant’s repeated alteration of his story and background. For example, when in 2004 the claimant was arrested on a charge of using a false instrument he used the name  ’Jean-Pierre Raymond Malapet’. However, on his arrest for deportation in 2008 he said that he was a French national called Aime Benoit Amougou-Mbarga.

Following a number of cancellations of his removal, Cameroon refused to take the claimant as the claimant himself said he was not Cameroonian, still insisting he was a French national. Following a language analysis, French authorities concluded that he was not French.

Deportation was again cancelled in March 2009 due to a judicial review application lodged by the claimant which was, in June of that year, refused. Efforts were made to establish the claimant’s true identity; but in August 2009 the claimant refused to give his fingerprints to assist authorities.

Eventually, in October 2010 the claimant caved in and said he was born in Cameroon and was in fact a Cameroon national. It is on this basis that the claimant brings his High Court case (see below).

In an interview with officials in January 2011 the claimant said he was brought up in Cameroon,  only to then alter his story and say he was brought up in Gabon before moving to Cameroon at age 19.

In March 2012 the claimant made a claim for asylum, saying he would be unlawfully killed were returned to Cameroon. Needless to say, the claim was rejected, deemed “manifestly unfounded”.

Finally, in March 2012 the claimant was successfully deported to Cameroon.

The Claim

The claimant’s case is neatly summarised by his representatives as follows:

It has been accepted that the Claimant previously gave false information about his identity and nationality but in an interview with the Defendant on 22 October 2010 he confirmed that he was from Cameroon having been born in Douala…..no attempt was made to remove the Claimant to Cameroon after this for one year and 4½ months despite the fact that there was no bar upon the Defendant’s ability to do so.

Analysis and the final decision

The Court were unequivocal as to the extent of the power to detain:

The power must be used only with an intention to deport the individual and for that purpose; the deportee may only be detained for a period that is reasonable in all the circumstances…if before the expiry of the reasonable period it becomes apparent that the Secretary of State will not be able to effect deportation within that period, he or she should cease to detain…

Citing John Howell QC in Sino the Court mused on how the reasonable period might be affected.

…a reasonable period may be still longer in the case of an individual who seeks to frustrate efforts to obtain [a travel document] by supplying false or misleading information.

So a flexible approach is to be adopted when determining what is ‘reasonable’ in the circumstances. If the detainee repeatedly “seeks to frustrate efforts” it is unlikely the courts will look favourably upon their case in the event of an extended detention.

And in dismissing the appeal concluded:

Against a backdrop of repeated criminal offending involving deception, this is a story of gross repeated deception perpetrated by the Claimant to avoid removal…[in light of this] it was not merely reasonable but necessary to continue the detention of the Claimant until the authorities were clear they had documentation, evidence and arrangements in place which would ensure his effective removal.

The European Commision press release highlights the purpose of the Free Movement Directive (the Directive): “[it] aims to ensure that EU citizens can fully enjoy their rights to freely travel, live and work anywhere in the European Union”.

The Directive sets out in its early passages:

The free movement of persons constitutes one of the fundamental freedoms of the internal market, which comprises an area without internal frontiers, in which freedom is ensured in accordance with the provisions of the Treaty.

The four issues

The Directive was to be implement in full by all participant EU member states by April 2006 – six years ago. But for the UK, four issue remain outstanding. These are:

1. The Free Movement Directive guarantees that non-EU family members of EU citizens who hold a valid residence card issued by one EU country can travel together with EU citizens within the European Union without an entry visa. The UK laws do not grant this important right which lies at the heart of free movement.

2. The UK does not allow extended family members of EU citizens to apply to have their residence in the UK considered under EU law when they were lawfully residing in the UK before the arrival to the UK of the EU citizen on whom they are dependent.

3. Under the Free Movement Directive, EU citizens who settle in another EU country but do not work there may be required to have sufficient resources and sickness insurance. The UK, however, does not consider entitlement to treatment by the UK public healthcare scheme (NHS) as sufficient. This breaches EU law.

4. Finally, the UK does not issue workers from Romania and Bulgaria during the first 12 months with the same residence documents as workers from other EU Member States. While EU law allows the UK to temporarily keep in place a work-permit scheme for workers from Bulgaria and Romania, those who have a work permit have the same right to reside as other EU workers and must be issued the corresponding residence documents.

The European Commission said:

As one of the EU’s larger member states, the UK is home to around 2 million citizens from other EU countries. It is therefore important that UK laws respect their rights…

prompting the free movement blog to say:

…the UK is pretty militant about the rights of UK citizens living in other EU countries, so it seems only fair that we properly respect the rights of EU citizens living here.

The Home Office, naturally aghast at the threat of an EU court case, responded thusly:

We disagree with the Commission’s opinion, which is not binding, and we will appeal.

Legal experts believe it to be highly unlikely that the UK can comply within the 2 month deadline.