EU Ruling to impact on European Free Movement and the right to residence?

Source : BBC News with Analysis by Europe correspondent Chris Morris
http://www.bbc.co.uk/news/uk-politics-30002138
The ruling

Today the European Court of Justice gave its ruling on a case that could have a wide ranging impact on European Free Movement. 

"The European Court of Justice has said member states are within their rights to refuse to give financial help to unemployed EU citizens who move to that country just to claim benefits".

The most concerning part of the ruling could be the part relating to the right of residency.
"The Court also said Ms Dano and her son could not claim a right of residence in Germany because they do not have sufficient resources to support themselves"

It could pave the way for even more restrictions to be announced before the end of the year.
"The BBC's assistant political editor Norman Smith said the government - which has often been at odds with the European Court of Justice in the past - was hailing the ruling as evidence the UK and Germany were on the "same page" when it came to benefit abuses and could pave the way for further restrictions in the coming months."

"The prime minister has said he wants to go further and will set out his plans in a speech before the end of the year, amid pressure from Conservative backbenchers to act."

Since posting this yesterday there are now further sources and links to articles now that the press, legal community and the spin doctors have read the ruling:-

http://www.theguardian.com/world/2014/nov/11/germany-deny-benefits-welfare-jobless-eu-migrants
http://www.theguardian.com/law/2014/nov/11/european-court-benefits-ruling-bolsters-eu-freedom-movement

http://eulawanalysis.blogspot.co.uk/2014/11/benefit-tourism-by-eu-citizens-cjeu.html

http://openeuropeblog.blogspot.co.uk/2014/11/what-are-implications-of-todays-ecj.html

http://www.telegraph.co.uk/news/worldnews/europe/11224615/EU-benefit-tourists-face-being-sent-home-after-landmark-court-ruling.html

http://www.ein.org.uk/news/european-court-justice-rules-states-can-exclude-benefit-tourists-claiming-social-assistance

http://www.independent.co.uk/news/world/europe/eu-court-moves-against-benefits-tourism-in-landmark-ruling-9853673.html

Update 20 Nov 2014

It has now been a week since this came out and has been widely hyped and spun by the press in the anti-immigration climate that has developed in the run up to the Rochester by-election that happens today.

So how much of this has been hyped or distorted by the press, spin doctors and politicians? 

Our learned friends at the freemovement blog have been spending a lot of time looking at the facts, analysing the possible implications and cutting through the media spin and hype to bring us an objective view of what if any impact this will have.
http://www.freemovement.org.uk/dano-and-the-exclusion-of-inactive-eu-citizens-from-certain-non-contributory-social-benefits/#more-18373

A big thank you to them for making this widely available to everyone.

EuLawAnalysis blog has also done an article about the historical context of the judgement.
http://eulawanalysis.blogspot.co.uk/2014/11/free-movement-and-social-benefits-for.html

Free movement - references to some key court rulings

Here is a summary of some useful case law and other official documentation which could prove useful to those interested in exercising free movement rights.   Reliance on case law should not be blind as it is not necessarily all that is needed to establish rights.  It may not be appropriate for your situation and showing off how much more you know than the caseworker by OD’ing on case law references is likely to piss them off.  Pride is a strange thing! 

Furthermore, Home Office is notoriously slow in updating UK regulations to reflect recent court decisions it is not happy with.  Sadly, it is also not unknown for the Home Office to adopt the most restrictive interpretation possible, leaving it to another case years down the line, to shed clarity or hold the department accountable. 

There are sometimes inconsistencies between judgments where the more recent judgment could ‘trump’ an earlier one, or provide clarification. 

The key message is based on my understanding.  Links are provided so readers can form their own opinions and as always, when in any doubt, you are strongly advised to seek specialist immigration advice.  

Please send any suggestions and corrections (much welcomed) to BritCits@gmail.com

Is UK handling of EEA Family Permit visas still a problem?
Source : EU Movement blog

http://eumovement.wordpress.com/2014/08/07/is-uk-handling-of-eea-family-permit-visas-still-a-problem/

Quotes :
'In the past, British embassy handling of EEA Family Permit visas has systematically violated EU Law, even in the straight forward cases. The problems are detailed in the Oct 2012 complaint to the European Commission CHAP(2012)3146.
'The executive summary of the complaint (reproduced below) highlights some of the problems encountered by married couples applying for an EEA Family Permit.  The full complaint has significantly more detail.

UK handling of EU family member visas systematically violates EU law :
https://dl.dropboxusercontent.com/u/27885818/complaint/eeafp/done/UKVisaComplaintOct2012.pdf

Family permit refusal letter

Not much astounds me when it comes to appalling behaviour from the Home Office, but they sure deserve a prize for coming up with the most bizarre reasons for deportation or refusal of entry.

One I've just come across has made me so angry, I don't know whether to laugh or cry at the HO's ability to still get to me.  Perhaps because I've not been on twitter much over the last few days the frustration is on overload.  Despite that I have seen many incredibly poor reasons for refusal already, illegal reasons, this refusal letter has really got to me, because in refusing the family permit, HO cites the applicant and sponsor went to 'extensive lengths to understand fully Regulation 9.." thereby deducing that it must have been an attempt to circumvent the rules.

Oh my goodness me.  So a family which ensures they understand the rules so as to comply with them is penalised; whilst another that does not understand the complex and ever changing rules, is also penalised for not complying with the very same rules.

Home Office goes on to state that because the British sponsor's salary in France was less than their spend, they are considered to be self-sufficient not employed. Again, a stupid deduction. The EEA regs do not specify a required level of income.  They actually don't even require any employment at all for exercise of rights under Surinder Singh, as long as the initial free movement exercise was genuine and family life was created or strengthened.  So by imposing the condition of employment/self-employment in itself, I believe UK is in violation of EEA law - and I understand the European Commission has commenced infringement proceedings against the UK for it's regulation 9 requirements (centre of life).

Of course, if those who spend more than their earnings are not considered to be employed, wonder if this means the no doubt thousands of Brits living in the UK who engage in just this kind of behaviour can just claim self-sufficiency and avoid income tax and possibly even claim income-related benefits!

It just beggars belief that we live in a country where a government department can flout the law so openly, and be so uncaring of how ridiculous their reasons for refusal are.  See not just the above refusal letter, but this extract from a deportation letter, this one too, a blog piece by Colin Yeo and this HO statement shared by Melanie Griffiths.

I urge anyone who finds Home Office in violation of the EEA regulations to make a complaint to Solvit.  When faced with a government that refuses to listen, holding them accountable for their behaviour may be the only way to ensure we live in a country where the government doesn't use its muscle to act unlawfully, and that it is obliged to interpret regulations in the manner intended.

FAQ

Updated answers to the most frequently asked questions here with links to some excellent articles, reports and forums.  Topics covered include:

• UK's immigration rules, including the MM case impacting spouses/partners, 
• UK's immigration rules for Adult Dependant Relatives
• EU treaty rights
• Surinder Singh - special application of EU treaty rights for home state

From Bang and David: News!

Source :Wang Bang / David Rushmer / I love my foreign spouse Facebook group

This has just been posted on the I love my foreign spouse Facebook support group by Bang :

'After a one year battle, we won our appeal!
(To watch our documentary film please click the link of Google Drive below)

'Our court day came in early August 2014. We had 11 witnesses attending the courtroom including my parents-in-law, my sister-in-law, and most of our common friends, although many of them had to stand outside because of the limited availability of seats in the courtroom. The hearing lasted for about 45 minutes. The Judge ended by saying, "I hope my decision will bring an end to this matter."

'Four weeks after we received the final determination from the First Tribunal, the Judge produced a carefully written report pointing out every error in my wife’s refusal, and our appeal fee was also refunded.

'In the 7 page long statement, the Judge said:

'There is a strong evidential base for inferring that the future intention of both parties is to live together as husband and wife. The supporting evidence appears to have been overlooked because of the focus on previous applications…

'I have no hesitation in finding on the voluminous evidence before me that there is a genuine and subsisting relationship between the parties. The evidence is well documented and supported not only by a documentary record but by the sponsor who I found to be a credible witness. He provided a straightforward and plausible account…
'Setting these concerns against the evidence regarding the current relationship and the development of that relationship since 2012 I find that the Appellant has demonstrated an intention to live permanently in the United Kingdom. Both of them are mature adults who have entered into this relationship with considerable regard for each other and their respective families. They are deeply committed to each other, share common interests and enthusiasm for literature and poetry in particular. The sponsor occupies a responsible position in the academic world and is responsible for the care of elderly parents. He has the strong support of colleagues and a wide circle of friends who know him…

'The Appellant has demonstrated through her actions in seeking leave, namely returning voluntarily to China, maintaining this close relationship, committing herself to marriage and submitting an application from outside the UK that she has a settled intention to live together with the sponsor…

'As indicated above I have taken into consideration her previous applications. I do not find in them anything which would suggest that the previous relationships were used in order to contrive entry clearance into the United Kingdom. In all the circumstance I find that the refusal decision was not in accordance with the law and Immigration Rules.

'No appeal has been lodged by the Home office against the Judge’s decision, therefore the determination is final and my visa will be issued.

'All our families and friends are over the moon. We cannot wait to share this good news with everyone who has been kind enough to support us. We would like to especially thank everyone in this group, thank you so much for sharing your stories, advice, experiences, happiness, kindness and compassion, your support has given us great strength to fight for justice. We would also like to say a big thank you to BritCits, who have been outstanding in defending the rights of international families and documenting the plight of those divided families, and a big thank you to Steven Green from BritCits, Journalist Michael Allen from The Independent, freelance Journalist and writer Hsiao-Hung Pai, Journalist Claudia Leong from Cambridge Tab and all the people who have helped us to gain publicity on various social medias, and 2,164 supporters who kindly signed our online petition.

'And finally, a big thank you to our lawyer, Paul Richmond from Richmond Chambers Immigration Barristers(winner of numerous prizes including the Best Immigration Set of the Year in the UK at 2014 Global Mobility & Immigration Award. )

'We will continually fight for a humane immigration policy with you for a fair and better society.
Please don’t give up hope! Never give up!
Love and hugs from David and Bang
xxx

A FILM:
our marriage.mpg
https://docs.google.com/file/d/0BxQ7py3TeOx4ZHl1QmljbVZwSFU/

David's update on change.org :
https://www.change.org/p/uk-border-agency-our-marriage-is-not-a-sham-please-sign-the-petition-and-help-me-get-my-wife-back-home/u/8209560
'... Don’t forget we are still only one couple of approx 17,000 people currently separated by these rulings, do continue to give them your support.'

Bang's blog :
http://wangbangy.tumblr.com/

David and Bang's story :
http://britcits.blogspot.co.uk/2013/10/david-bang-we-are-aware-many.html
“We are aware many applications despite satisfying all requirements are being refused for trivial or erroneous reasons...”

Bang's interrogation :
http://britcits.blogspot.co.uk/2013/10/account-of-interview-in-british-embassy.html

Paradise Lost? Help Cambridge librarian bring his wife home!
http://britcits.blogspot.co.uk/2014/05/paradise-lost-help-cambridge-librarian.html

http://britcits.blogspot.co.uk/2014/05/our-sham-marriage-httpwangbangy.html 

Legal Advice No Longer?

What is the difference between Legal Support and Legal Advice?

Author: Mark

Source: Right to Remain (formerly the National Coalition of Anti-Deportation Campaigns)

With the latest tightening of the immigration rules in the Immigration Act 2014 exemptions to the section 82 v of the Immigration and Asylum Act 1999 were abolished requiring everybody giving legal advice about immigration to be registered. 

Further details are due in September from OISC with their aim to have the new system up and running by March 2015 as highlighted in their email to ARIA:
http://ariauk.wordpress.com/2014/08/01/message-from-the-oisc/

The previous changes saw many advice centres and charities refuse to deal with immigration linked cases any more.  These further changes could see what restricted advice that is still available further disappear; as over stretched charities/NGOs can not afford to take risks or allocate the extra resources needed to deal with the red tape.

Right to Remain has written an informative article that gives hope that people will still be able to get support when faced with immigration problems as it highlights the difference between Legal Support and Legal Advice. http://www.righttoremain.org.uk/legal/legal-support-not-legal-advice/

They conclude:-

"Legal advice can be defined as the application of legal rules and principles to a specific set of facts"

People will find that their expectations of how far support from organisations can go will also have to be adjusted. 

They go on to highlight that:- 

"Legal advice is specific, direct, and proposes a course of action. Legal information is factual, generic, and does not address any one particular cause of action."

OISC also issues its previous long definition of what is immigration advice.

http://oisc.homeoffice.gov.uk/how_to_become_a_regulated_immigration_adviser/what_is_immigration_advice/

It's page will have to be updated to reflect the upcoming changes.

The legitimate aim may have been to protect people from bad advice and being ripped off. But the real world effect, combined with the changes to the appeals system and cuts to legal aid, is that peoples Article 6 rights to a fair trial and justice have been compromised.

These changes impacting free advice will severely reduce the options available to people when often it is a starting point for many to find out legal information related to their specific problem before having to find the costs for detailed legal advice and to know whether they need to go along that route in the first place. 

Surinder Singh from a legal perspective

Source : Colin Yeo/Free Movement


Colin Yeo's 'Surinder Singh: EU Free movement for British citizens' is now online and can be bought here :
http://www.freemovement.org.uk/shop/

Foreword by Sonel Mehta of BritCits.

More posts on Surinder Singh and European free movement :
http://britcits.blogspot.co.uk/search/label/surinder%20singh

Migration Pulse: Dissecting the MM Court of Appeal judgment 

Helena Wray, Reader in Law at Middlesex University, provided an analysis of the MM case.

http://www.migrantsrights.org.uk/migration-pulse/2014/dissecting-mm-court-appeal-judgment

Quote:  '... the first thing I noticed about the judgment is that it operates at a level of intellectual insularity that is extraordinary given what is at stake. There is no mention anywhere in the judgment of what the rule means for British citizens and residents and their children who cannot live with their loved ones in their own country... '

Source: Migration Pulse/Migrants' Rights Network.


More posts on MM :
http://britcits.blogspot.co.uk/search/label/mm

Migration Observatory: The UK, EU citizenship and free movement of persons

http://migrationobservatory.ox.ac.uk/policy-primers/uk-eu-citizenship-and-free-movement-persons

' ... TCNs (third country nationals) are also able to derive rights, irrespective of their nationality, as family members of EU citizens. In practice, this means that migrant EU citizens have a right to family reunification, which may prevail over domestic immigration restrictions. The right may be invoked by EU citizens living in other EU Member States, or against their home states under some circumstances: These circumstances include first, where an EU citizen returns to her Member State of nationality after exercising their right to work or establishment in another Member State (Case C-370/90 Surinder Singh [1992] ECR I-04265). In March 2014, the CJEU clarified that the EU rights of residence of family members were applicable only 'where the residence of the Union citizen in the host Member State has been sufficiently genuine so as to enable that citizen to create or strengthen family life in that Member State' (Case C-456/12 O & B and Case C-457/12 S and G. Judgments of 12 March 2014 nyr). The current UK rules seem to take a more restrictive view of when these principles are applicable, and so may be in tension with that ruling.'

Via EEA visa... EU free movement (Facebook support group) :
https://www.facebook.com/groups/650212281695959/

More on European free movement and family unification

Two great blogs -

Freedom of movement in the EU ( for EU citizens and their non-EU family members ) :
http://eumovement.wordpress.com/

Surinder Singh route information :
http://surinder-singh-route.info/

Overview - family unity, the European way :
http://www.jcwi.org.uk/comment/1570

(Lots and lots) of posts on European free movement :
http://britcits.blogspot.co.uk/search/label/surinder%20singh

How to do it - Surinder Singh for newbies :
http://britcits.blogspot.co.uk/search/label/surinder%20singh%20for%20newbies

Video experiences of one family who successfully navigated the route :
https://www.youtube.com/watch?v=r1-v0cV2Y8E

When things go wrong... how and where to complain effectively :
http://eumovement.wordpress.com/2011/11/29/complain-effectively/#more-1014
http://ec.europa.eu/solvit/index_en.htm

JCWI : Home Secretary's victory in MM case

http://jcwi.org.uk/blog/2014/07/17/home-secretarys-victory-mm-case

This judgment continues to allow wealth to dictate whether a British citizen has the right to fall in love with a foreigner and be entitled to family life in the UK. This cannot be right.

More posts on the MM case :
http://britcits.blogspot.co.uk/search/label/mm

Delays to decisions so the Home Office can apply new laws/rules retrospectively.

There is a great British legacy and tradition of being one of the fairest and just societies in the world observing a system of 'rule of law'. Such is the legacy that many legal systems around the world have been heavily influenced by the British system.

But many British people are now becoming increasingly disillusioned through their dealings with the British system of democracy and law.

Britain is now ranked 13th out of 99 legal systems in the world. Even in Europe it is ranked 9th out of 24 countries. 

http://data.worldjusticeproject.org/

The rule of law depends on people who are subject to such laws being able to understand how those laws apply to them. When laws and changes are deliberately hidden through over complexity or confusion then they are being used purely as tools of oppression.

"In a society governed by the rule of law, the government and its officials and agents are subject to and held accountable under the law" In the Uk with the increasing withdrawal of appeal rights and restrictions on access to legal aid it is becoming increasingly difficult to hold the government to account.

Laws should be clear, publicised, stable, and just; applied evenly; and protect fundamental rights, including the security of persons and property.

Current UK immigration law is anything but!  The laws and current changes to the laws are laid out in such a way that the very people that these laws and rules apply would face great difficulty understanding what changes are taking place and how they may be impacted. 

One such example is the changes released on the 10th July 2014 the day before the MM ruling in the Court of Appeal.  

https://www.gov.uk/government/publications/statement-of-changes-to-the-immigration-rules-hc532-10-july-2014

In these changes I find it very difficult to fully understand what changes are really being made despite in my professional life having many years experience dealing with complex legal contracts on a daily basis. 

My first concern in these changes is that many are being applied retrospectively especially those affecting spouse visas.

"The changes .............of this statement take effect on 28 July 2014 and apply to all applications to which paragraphs 276ADE to 276DH and Appendix FM apply (or can be applied by virtue of the Immigration Rules), and to any other ECHR Article 8 claims (save for those from foreign criminals), and which are decided on or after that date."

“A279. Paragraphs 398-399D apply to all immigration decisions made further to applications under Part 8 and paragraphs 276A-276D where a decision is made on or after 28 July 2014, irrespective of the date the application was made.”.

 They have also brought in a new justification for decisions 

 "....in doing so also reflects the relevant public interest considerations"

where one of those considerations is now    

"controlling immigration to safeguard the UK’s economic well-being."

There are also changes to definitions of why exemptions can be considered

"“insurmountable obstacles” means the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner.”

But one of the most worrying and confusing parts is especially for all those 500+ in UK application that put on hold pending the out come of the MM appeal.

"7.19. The non-suspensive appeals provision, inserted by section 17(3) of the Immigration Act 2014, allows the Secretary of State to certify an appeal where an individual is liable to deportation when, despite the appeals process not having been begun or not having been exhausted, removal of a person to the country or territory to which they are proposed to be removed, pending the outcome of an appeal in relation to their claim, would not be unlawful under section 6 of the Human Rights Act 1998, for example the individual would not face a real risk of serious irreversible harm if removed."

Does this mean that the Home Secretary can now remove people from the UK even while they are appealing as first announced in the  Immigration Act 2014 Summary of Provisions?

"Clause 12: Place from which an appeal may be brought or continued

An appellant can remain in the UK to bring or continue his appeal if the original claim was made whilst the person was in the UK. If however, the Secretary of State has certified the appeal as ‘clearly unfounded’ or a person can be removed to a safe third country, the appeal can only take place once the person has left the UK.

In the case of someone liable to deportation who raises a human rights claim the default is to remove them from the UK by certifying the appeal on the basis that they would not face, before the appeals process is exhausted ‘a real risk of serious irreversible harm if removed to [that] country or territory’. The right of appeal is then exercised from abroad."

Or does this only apply to criminals?

This is a very worrying time for those in the UK impacted by the MM ruling.

Have their rights been totally trampled on?!

Their decisions are further delayed just so these new rules of the Immigration Act 2014 can be applied retrospectively.

The timing of these changes is very worrying. 

First it has been rushed through in the last 2 weeks of parliament in the rush before the summer break.

Secondly it come into effect at the start of the Courts summer break making any injunctions against deportations much more difficult to obtain until the courts are back in October.

Will we see the Government attempt mass deportations over the summer period?

Are they so heartless and so determined to destroy the British Legal System!!!!!!!!