Zambrano Carers and Human Rights: HOME OFFICE POLICY UNLAWFUL

Article by Naomh Gibson

Introduction

On 30 January 2020 and having heard a number of test cases, Judge Neville of the First-tier Tribunal (IAC) at Taylor House ruled that a person meeting the requirements Regulation 16 of the Immigration (European Economic Area) Regulations 2016 (‘the 2016 Regulations’) has a derivative right of residence notwithstanding that he or she has not yet made an application under the Immigration Rules and pursuant to Article 8 ECHR. The upshot is that the novel concept set out in Home Office policy that a Zambrano carer must first make an unsuccessful fee-paid human rights application before an application under the 2016 Regulations can be submitted is unlawful.

Judge Neville also held that the EU Treaties do not demand an applicant be entitled to a permanent right of residence after living continuously in the UK for a period of five years as Zambrano carers. It was held that a Zambrano right of residence is impermanent by its very nature, and that once the compulsion to follow the third country national (‘TCN’) falls away, there is no basis upon which the British citizen is deprived of his rights under the EU Treaties by the TCN’s removal.

This second issue is the subject of an on-going appeal to the Upper Tribunal. The Secretary of State elected not to appeal the finding on the first issue. The indication from senior sources is that the policy will now be subject to amendment giving effect to the FtT’s ruling.

Ramby de Mello and Tony Muman acted for the lead test appellants.

Background

It came to attention of David Tang & Co solicitors that in several of their appeal cases there was a recurring issue, summarised in the appeal as follows:

Where the Secretary of State accepts:

  1. That the appellant is the primary carer for a British citizen child; and
  2. That the child would not be able to remain in the United Kingdom or another EEA member state if the appellant were required to leave the United Kingdom for an indefinite period…

Is it in breach of the appellant’s rights under the EU Treaties in respect of entry to or residence in the United Kingdom for an application for a residence card under Reg. 20 of the 2016 Regulations to be refused because the appellant has not yet made an application for leave to remain under the Immigration Rules (or otherwise pursuant to Article 8 ECHR) on the basis of the relationship with the British citizen child? (Issue 1)

Exceptionally, exercising its general case management powers, the FtT agreed to consider this issue discretely as a preliminary issue.

The FtT also agreed to decide on a second matter as a preliminary issue, namely:

Where an appellant has spent five years living continuously in the UK with a derivative right of residence, have they acquired a permanent right of residence akin to that set out at Reg. 15 of the 2016 Regulations? (Issue 2)

Issue 1

It was common ground that each appellant was not an exempt person as defined by Reg. 10(7A) of the 2016 Regulations and met each of the criteria at Reg. 10(5). However, the applications for derivative residence cards were refused by the Home Office, on the basis that there is significant overlap with the right to respect for private and family life which is protected by Article 8 ECHR, and so an appellant who wishes to remain in the UK on the basis of family life with a British citizen ought to first make an application for leave to remain under Appendix FM to the Immigration Rules.

The Secretary of State reasoned that a derivative right to reside is a right of last resort which only applies if a person has no other means to remain lawfully in the UK. In doing so, she sought to gain assistance from the Court of Appeal judgment in Patel v SSHD [2017] EWCA Civ 2028).

This would mean that a Zambrano application must be refused if the applicant:

  • has never made an application under Appendix FM to the Immigration Rules or any other Article 8 ECHR claim, where that avenue is available;
  • has been refused under Appendix FM or Article 8 ECHR but their circumstances have changed since the decision was made – for example, the applicant applied on the basis of their relationship with a British spouse, but the couple now have a British child.

Further, the Secretary of State also argued that someone holding leave to remain under domestic law would not benefit from a derivative right to reside. She sourced the above principles from Patel. The FtT rejected this contention and held that the Respondent’s interpretation ‘cannot survive the actual legal principles engaged nor, in any event, would her interpretation of the law provide a sound basis for the requirement imposed by the guidance’ [28].

The FtT agreed that Patel, properly read, offers no support for either proposition. The judge ruled that the Respondent’s guidance contained legal principles which were ‘unsupported by, and in some cases completely at odds with, previous authority’ [46].

This is because Zambrano is concerned with the circumstances in which a TCN will have a right of residence under EU law, and in particular Article 20 of the Treaty on the Functioning of the European Union (‘TFEU’):

  1. 1. Citizenship of the Union is hereby established. Every person holding the nationality of a member state shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.
  2. 2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:

    a) the right to move and reside freely within the territory of the member states; …

Therefore, the obligation and the jurisdiction to grant residence follows Art.20.There was thus a distinct separation between EU law, and other provisions such as the ECHR, to form ‘two sources of protection’ [32]. In the learned judge’s opinion, the correct approach to take in determining Issue 1 was as follows:-

  1. Is there a derivative right of residence as defined by Zambrano? If not;
  2. Would removal be contrary to the right for respect for the TCN’s family and private life afforded by Article 8 ECHR?

As such, the Respondent’s guidance (and their application of their guidance) erred in law as it is predicated on testing whether the TCN is being compelled to leave the EU, rather than testing what would happen if he or she were so compelled.

Issue 2

Some of the appellants argued that after living continuously in the UK for 5 years pursuant to a Zambrano right of residence, they had automatically acquired a right of permanent residence – contrary to the current regulations – on the basis of EU Treaties. This was a novel proposition which had not been directly explored in any previous authority.

This proposition was based on Article 21(1) TFEU, which provides:

“Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.”

As per Lounes (Citizenship of the Union : Border checks : Judgment) [2017] EUECJ C165/16, [58], it was argued that it would be contrary to the underlying logic of gradual integration that informs Article 21(1) TFEU to hold that such citizens, who have acquired rights under that provision as a result of having exercised their freedom of movement, must forego those rights –– in particular the right to family life in the host Member State –– because they have sought, by becoming naturalised in that Member State, to become more deeply integrated in the society of that State.

It was submitted on behalf of the appellants that this ought to include the ability to build a family life with a TCN partner by the means of a derived right of residence to that spouse.

However, the FtT did not accept this part of the appellants’ case. While it was accepted that there was ‘some force’ in these arguments [57], there was no authority explicitly providing for the Directive to be applied ‘by analogy’ to Zambrano carers.

Ultimately, the appellants faced an insurmountable hurdle in that entitlement to a permanent right of residence by the TCN does nothing to fulfil the objectives of the TFEU; refusing to provide a right of permanent residence to a Zambrano carer after five years’ continuous residence as such does nothing to “[deprive a] Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their status” nor “interfere, in particular, with a Union citizen’s freedom of movement”.

An example was given of a TCN who is the sole primary carer of a British citizen child who would be compelled to follow her outside the EU if she were removed. If this TCN was given leave in another Member State, then the Secretary of State could justifiably argue that the Zambrano right falls away as the UK would not be interfering with the child’s enjoyment of EU citizenship.

Conclusion

This is welcome clarification on the correct application of the Zambrano principle and the circumstances in which an appellant has a derivative right of residence. For those currently handling cases which engage these principles, please note that at the time of writing, the Home Office has yet to update their guidance.

The current document ‘Free movement rights: derivative rights of residence’ version 5.0 dated 2 May 2019 still requires to be updated (see here). Page 52 of 63 of the Guidance still erroneously states: Where a person wishes to remain in the UK on the basis of family life with a British citizen, they should first make an application for leave to remain under Appendix FM to the Immigration Rules, not for a derivative residence card on the basis of Zambrano.

Ramby de Mello and Tony Muman and appeared for the 1st-12th Appellants.

For any further enquiries please contact Tony and Ramby’s clerks on 0121 237 6035 or clerks@halcyonchambers.com 

Law in the time of COVID-19: A Practitioners Guide to Hearings

Article by Naomh Gibson

In Ernest Hemingway’s 1926 novel, The Sun Also Rises, characters Mike Campbell and Bill Gorton discuss Mike’s money troubles:-

“How did you go bankrupt?” Bill asked.

“Two ways,” Mike said. “Gradually and then suddenly.”

Gradually and then suddenly

Much like Mr Campbell, the legal profession in the UK has also had to quickly come to terms with something which was slowly and inevitably coming down the pipeline  – video-link and telephone hearings. 

The spectre of remote hearings has always been on the horizon. There were semi-frequent pilot schemes and trials in the decade leading up to the COVID-19 pandemic. For example, from 2009-2010 HMCTS ran a ‘Virtual Court’ pilot for 12 months in two magistrates’ courts in London and North Kent, covering 15 police stations in London and one in North Kent (MOJ, 2010). While the main drawback of the pilot was the expense, researchers agreed that broadening the use of the technology might improve the economic case for its installation. The consensus was a ‘more integrated and fundamental inter-agency system would probably deliver better efficiency savings’.

Similarly, between 2018-2019, HMCTS ran pilot schemes for remote hearings in the Tax Tribunal and the Immigration and Asylum Chamber in Birmingham and London for a limited number of simple contested matters, usually case management hearings. As before, while the results were generally positive, as noted by the Master of the Rolls Sir Terence Etherton, the principal complaints concerned the reliability of IT equipment and the absence of training of the judiciary for the use of that system (see here). Again, underfunding and under-implementation proved to be the stumbling blocks of an otherwise ambitious and innovative project.

On 20 June 2018, HMCTS announced that part of their £1bn reform programme projects would include judicial training on new technologies, an improved telephone conferencing system and ‘assisted digital’ i.e. a service for members of the public (including litigants in person) who have limited digital capability or who are unable to access resources and information digitally – including web-chat, telephone and face to face support – to be rolled out between September 2017 and March 2022 (see here). So far, so good. And then COVID-19 happened.

Current arrangements

From 18 March 2020, HMCTS has guidance on conducting remote hearings which is updated every few days (see here).

The essential headlines to take away are as follows: HMCTS provides an essential service, and this cannot stop during the pandemic. They will therefore try to ensure your hearing goes ahead.

However, HMCTS will have to make decisions on prioritising which cases are heard and in what order, as they always have. This is because, overnight, HMCTS have had to implement technological measures which would typically be in the works for months, potentially several years – as seen above. There will inevitably be teething problems, and this may cause a backlog while solutions are found.

Therefore, unless your hearing relates to a particularly urgent matter, expect that it may be considered low priority unless:

  • It relates to the custody or detention of an individual; 
  • It relates to the immediate well-being or safety of an individual and is not mitigated by social distancing protocol i.e. findings of fact for Child Arrangement Orders which are now moot as the children are limited to direct contact within the family home and the applicant family member does not live with them;
  • It relates to public health legislation, particularly under the Coronavirus (Emergency) Act 2020.

Physical hearings are to be avoided as far as possible, except in the rare situation where they cannot be held remotely. Practitioners should consider what can be done to minimise the need for physical presence – particularly as from 30 March 2020 only 157 Courts and Tribunals will be open to the public (see HMCTS court tracker for updated information).

Ultimately, the decision as to how a hearing is conducted is a matter for the judge, magistrates or panel, who will determine how best to uphold the interests of justice. Any live hearings from Monday, 23 March 2020 will need to be approved by the judge hearing the matter, if necessary in consultation with their leadership judge. As such, if you consider a hearing must be in person, seek permission from the judge as soon as possible. 

What if my hearing is in person?

If your hearing must be in person and you have approval for this, contact your designated priority hearing centre/check the HMCTS guidance 24 hours ahead of the hearing to confirm what their updated COVID-19 protocol is – given the increasingly fast-paced developments, there may be last-minute changes in how the hearing is to be conducted.

General good practice is to maintain standard social distancing protocols where possible, e.g.:

  • Do not attend the hearing if you or anyone in your household has had symptoms and you have not yet completed the self-isolation period;
  • Bring your own drinks and avoid any court-supplied water carafes or fountains;
  • Bring your own sustenance as there will realistically be limited café services in or near the court building;
  • Bring tissues and/or handkerchiefs to wipe down surfaces or use as a physical barrier if needed;
  • Keep separation distance (2m/6ft) from people at all times, including when in queue to get into the court building or go through security;
  • At security, open your own bags/belongings for checking – particularly if security staff are not wearing gloves;
  • At security, if the tray for visitors’ belongings is not lined with paper or you are concerned it is not clean, put your belongings in an open bag and ask that it be checked that way instead;
  • Do not use elevators if at all possible. If you must, use elevators one person at a time, save for any person who is accompanied by a medical professional or member of their household such as a carer; 
  • Do not share documents/ Ipads/ holy books/ oath laminated sheets etc;
  • Take breaks every 2 hours during hearings to wash/sanitise hands – hand-washing is preferable to using hand-sanitiser.

What if my hearing is remote?

If your hearing is to be conducted remotely, ascertain quickly whether it will be by telephone or video link, and using what software. Typically, BTMeetMe is being used for telephone hearings, and Skype for Business is used for video link hearings. Telephone hearings may also be via BT Telephone Conferencing, Legal Connect, Kidatu, and Arkadin.

There is no need for specialist equipment for either of these types of remote hearing. Telephone hearings require access only to a telephone, and video-link hearings require access to a laptop with an in-built webcam, or a PC with a webcam plug in option. The mobility of laptops will make them preferential as opposed to desktop computers. iPads and iPhones are not recommended, but as a backup they can be used if all else fails.

While not essential, participants might find the audio for remote hearings runs smoother when using a headset, or headphones with microphone. This allows the audio from others to play directly into the participant’s ear, and the audio from the participant will be picked up much easier by the proximate microphone. This has the benefit of avoiding background noise from interfering with the remote hearing, especially for those working from home with noisy pets/children/partners.

It is unlikely to apply due to social distancing protocols, but if you are in a remote hearing in the same room as a colleague/client and you wish for them to also hear the call and contribute freely, consider using a splitter adapter/jack so both of you may use headsets/headphones, or alternatively a Bluetooth speaker.

Participants to a video-link hearing do not need Skype for Business to join the same, however they will need the free Skype Meetings App. Each participant will receive instructions and a link to click to join the hearing, as a ‘guest’.

Once users click on the link, they should follow the browser’s instructions for installing Skype Meetings App. Do this as early as possible to be prepared for your hearing.

If you don’t receive a link, send the Court a request for a link and ask them to do the following:

  • Click on Meeting Entry Info in their Skype session – they will see this image in the bottom right hand corner of the screen;
  • Click copy info on the new window and email that to the participants.

At least 24 hours before the remote hearing, do a dry-run with your colleagues or clients. Skype can be used and experimented with at-will between participants who have accounts. As BTMeetMe usually operates by the Court dialling out, a dry-run for a telephone hearing may require using another platform and asking a colleague to dial out to participants as the ‘Court’.

At the time of the video-link hearing, participants go to the Skype Meetings App sign-in page, enter their name, and select “Join”.

Ensure you are dressed appropriately for Court and have a neutral background – if you wish to blur your background, hover over the “Video” button during a call. In the pop-up that appears, toggle the “Blur my background” setting and Skype will automatically adjust your video feed so you remain in focus while a blur is applied to your background.

At the time of the telephone hearing, participants will be called and must accept the call as normal. Good practice during a telephone hearing, as you will not be visible, will be to ask every party to introduce themselves at the beginning of the call, and then to identify yourself before you speak each time. Consider keeping your microphone on mute during remote hearings when you are not speaking. Judges should take the lead in directing when they wish to hear from specific parties to avoid cross-talk.

Conclusion 

Only time will tell how successful remote hearings are in practice. For some, one of the few benefits of the current situation is that it has provided a kick up the proverbial to the legal profession to modernise.

While it would have certainly been more beneficial if HMCTS had made greater progress in the past decade at implementing remote hearing methods before the current crisis, they have laid a modest framework upon which to build. Any practitioners previously involved in pilot schemes should share the wealth of their experience, and together the profession can adapt.

Reference list

‘Virtual Court pilot: Outcome evaluation’ (Dec 2010) Ministry of Justice Research Series 21/10

COVID-19 and the Risk of Losing Your Home

Article by Katie Wilkinson

The true financial impact of the COVID-19 coronavirus is yet to be felt, but for many the inability to pay rent on their homes is a real problem that they are facing imminently.

The government announced emergency legislation on 18 March 2020 which included extensive measures to protect renters and landlords affected by coronavirus.

The effect of the legislation means that no persons in rented accommodation (including both social housing and private properties) will be forced to move out of their home during the period that COVID-19 affects society.

Landlords will be unable to commence possession proceedings to evict tenants for a period of at least 3 months. To address the unfairness that arises for landlords who may not be receiving their rental income, they can apply for a 3 month mortgage payment holiday meaning that they will not have the financial pressures of meeting mortgage payments, and in turn will not need to place pressure on tenants to pay rent.

At the end of the 3 month period the Government has stated that landlords and tenants will be expected to work together to establish an affordable repayment plan, taking into account tenants’ individual circumstances.

The bill acts to extend the period of notice for all types of tenancy to 3 months irrespective of what the grounds for possession are.

For example Section 21 notices previously required a notice period of 2 months, so in practical terms the legislation extends that period by 1 month. The legislation applies, however, to all notices seeking possession until 30 September 2020. The Bill does allow for further legislation to be passed to extend the 30 September date, and to lengthen the notice period further if required.

Landlords can continue to issue proceedings either in relation to notices which have already expired or notices which will expire prior to 30 September 2020. Such claims are routinely being stayed until the 90-day period has expired but in any event, whether the Court would be able to hear such claims in the next 3 months is unlikely.

On 19 March 2020 a message was released from The Lord Chief Justice to judges in the civil and family courts which reads:

“The default position now in all jurisdictions must be that hearings should be conducted with one, more than one or all participants attending remotely. That will not always be possible. Sensible precautions should be taken when people attend a hearing. They are now well-known. We all take them when out of the home”

Whilst the civil courts have utilised telephone hearings for many years, they are rarely ever used when one party is unrepresented (which means that a person is not using the services of a Solicitor and instead represents himself).

Guidance from the Courts and the Government is evolving almost daily to take into account new information and issues arising as a direct result of COVID-19. Whilst the new measures will be welcomed by persons in rented accommodation, it should not be forgotten that any rent unpaid in the next 3 months will ultimately become repayable in full. The financial implications of this will no doubt subsist for many months to come and, whilst the Court may be sympathetic to financial problems caused by COVID-19, the laws applicable to possession claims will still be in force once the current situation improves.

Tom Wheeler successfully defeats a Bankruptcy Petition against the odds!

Tom’s client was faced with liability orders for unpaid council tax across a large portfolio of tenanted properties. Having failed to participate in the proceedings which brought about the liability orders, and having later ignored statutory demands served off the back of them, Tom was faced with opposing a petition for his client’s bankruptcy.

Tom had previously advised that a prompt application to set aside the liability orders was essential, but this had not been achieved by the date of the hearing. Against all odds, Tom was able to achieve dismissal of the petition. Arguing reliance on s.271 Insolvency Act 1986, Tom successfully persuaded the Court that a bankruptcy order was inappropriate in circumstances where the client was prepared to sell a property and give security for the debts owed.

Despite not having made such an offer before, the Court was satisfied that the Petitioning Creditor’s position was protected, and the petition was dismissed.

Tom is an expert in all areas of insolvency and can advise on all steps in the process of both company insolvency and personal bankruptcy – his profile can be found here.

Brexit – an interference with family life?

Article by Jonathan Bott

With the date for Brexit put off to another unknown date, one might think that the substantive effect of the UK leaving the European Union is yet to be felt. However, following A v A (2019), a recent unreported case where the father was represented by Suzanne Hodgkiss, Jonathan Bott and Emma Weaver, the spectre of Brexit is already raising a number of issues relevant in family matters.

In A v A, the father was a Pakistani national, who was living in the UK as a spouse of the mother, a Polish national. The father had received permission to remain as a result of the mother’s status, however, the mother- having been resident in the UK- had declined to apply for ‘Settled Status’ under the new UK regulations for EU nationals. This led to the mother wishing to return to Poland and arguing that she did not have the right to remain in the UK, which would affect the father’s contact with his child.

The court took the view that it should not attempt to force the mother to remain in the UK, when she did not have the right to do so, albeit she could have applied for Settled Status.

The difficulty this case highlights is where EU citizens have previously had a right to work and live in the UK, but as a result of the UK’s changing status, no longer have such a right and thereafter the effect upon family dynamics including contact with a non-resident parent.

Of course, the right to remain is just one element of post-Brexit uncertainty, there are many other issues in Family Law which will cause the courts to ponder, not least the doctrine of proportionality (which has its roots in EU, not UK law) and the confusion that is likely to reign if the relatively clear position under Brussels IIR about interstate recognition and enforcement of orders is swept aside. We will await further developments!

With a nationally renowned public law team (including Ramby De Mello and ‘Immigration Lawyer of the Year 2019’, Tony Muman) combined with a specialist family law team with experience of international child and family issues, Halcyon Chambers are alive to the many issues facing the courts following the UK leaving the EU and are ready to steer families through the choppy waters of post-Brexit legislation.

SMBC v Z

Article by Jonathan Bott

Jonathan Bott has successfully obtained findings on behalf of Sandwell MBC in a case involving serious assault, child cruelty and international forced marriage.

The respondent parents, both Afghani nationals, had assaulted their 4 children on numerous occasions including whipping one child with wire and beating their children with various implements.

Following a week long contested case, HHJ Hughes – sitting in Wolverhampton – determined that all findings sought were made out and that there should be final care orders in respect of the children. The matter has now been referred to Birmingham Family Court, as a designated Forced Marriage Protection court under the Family Law Act 1996, in order for Forced Marriage Protection Orders to made in respect of all the children. 

The Importance of ADR: Further Guidance from the Court of Appeal

Article by Katie Wilkinson

The Court of Appeal have clarified the powers of the Court to require parties to engage in early dispute resolution which goes much further than the Courts’ general encouragement of mediation, and the imposition of costs sanctions to those who unreasonably refuse.

On 6 August 2019 the Court heard Lomax v Lomax [2019] EWCA Civ 1467 which concerned the effect of CPR 3.1(2)(m), and specifically the Courts’ powers to take case management steps that include hearing an ‘Early Neutral Evaluation’ (‘ENE’) ‘with the aim of helping the parties settle the case’. The issue before the Court in this inheritance dispute was whether such a hearing could be ordered in the absence of consent between the parties.

The decision of the Court of Appeal was a resounding YES.  The specific reference to an ‘ENE’ within the CPR came into effect on 1 October 2015. It is not the same process as mediation and falls into the Courts’ general case management powers.

It was noted by LJ Moylan that, although it would have been simple to include the same, the CPR did not contain an express requirement for the parties to consent to the ordering of an ENE. ENE was part of the court process, whereas mediation was not.

An ENE was held to be “a step in the process which can assist with the fair and sensible resolution of cases”.

The ‘Surinder Singh’ principle: ‘Centre of Life’ test unlawful says Upper Tribunal – Omarkhail v Home Secretary

Article by Tony Muman

The Surinder Singh principle, or ‘route’ as commonly referred to, takes its name from the old Court of Justice judgment in R v IAT and Surinder Singh ex.p. SSHD Case C-370/90 [1992] 3 CMLR 358. The Court had to decide whether Community law grants a right of residence to a national of a non-member country who is the spouse of a Community national when the latter returns to work in his or her own country having in lived and worked in another member-State. The Court held that in the context of Mr Singh’s British wife, she had activated her Community status by working in Germany and that activation continued its effects when she returned to the United Kingdom, and that one of those effects was the right of Mr Singh – an Indian national – to accompany her with an entitlement to live and work in the United Kingdom whilst they remained married; in the same way that she could if she were a German national moving to the United Kingdom to live and work.

Regulation 9 of the Immigration (EEA) Regulations 2006/1003 gave effect to the (‘the Surinder Singh principle’) and, as enacted provided:

Family members of United Kingdom nationals

9.—(1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who is the family member of a United Kingdom national as if the United Kingdom national were an EEA national.

(2) The conditions are that—

(a) the United Kingdom national is residing in an EEA State as a worker or self employed person or was so residing before returning to the United Kingdom; and

(b) if the family member of the United Kingdom national is his spouse or civil partner, the parties are living together in the EEA State or had entered into the marriage or civil partnership and were living together in that State before the United Kingdom national returned to the United Kingdom.

(3) Where these Regulations apply to the family member of a United Kingdom national the United Kingdom national shall be treated as holding a valid passport issued by an EEA State for the purpose of the application of regulation 13 to that family member.

On 1 January 2014 the Immigration (European Economic Area) (Amendment) (No. 2) Regulations 2013 / 3032 amended Regn 9 inter alia of the 2006 Regulations. The changes were said to ensure that a British citizen engages in genuine and effective use of the rights conferred by Directive 2004/38/EC before a right to reside in the United Kingdom is conferred on a non-EEA family member. Regn 9 was amended still further on 25 November 2016. The general consensus was that the Home Office introduced these changes to try and ‘plug the hole’ which many British citizens seeking to be reunited with family members were falling back on, relying on rights under EU law rather than the pernicious and often insurmountable UK immigration rules post July 2012. Many interpreted this change as another way to try and achieve the reduction of net migration that the then Home Secretary seemed obsessed with.

The decision in this appeal was taken under Regn 9 of the Immigration (EEA) Regulations 2016 / 1052 which came into force on 1 February 2017. As amended Regn 9 provides:

Family members of British citizens

9.—(1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who is the family member (“F”) of a British citizen (“BC”) as though the BC were an EEA national.

(2) The conditions are that—

(a) BC—

(i) is residing in an EEA State as a worker, self-employed person, self sufficient person or a student, or so resided immediately before returning to the United Kingdom; or

(ii) has acquired the right of permanent residence in an EEA State;

(b) F and BC resided together in the EEA State; and,

(c) F and BC’s residence in the EEA State was genuine.

(3) Factors relevant to whether residence in the EEA State is or was genuine include—

(a) whether the centre of BC’s life transferred to the EEA State;

(b) the length of F and BC’s joint residence in the EEA State;

(c) the nature and quality of the F and BC’s accommodation in the EEA State, and whether it is or was BC’s principal residence;

(d) the degree of F and BC’s integration in the EEA State;

(e) whether F’s first lawful residence in the EU with BC was in the EEA State.

(4) This regulation does not apply— (a) where the purpose of the residence in the EEA State was as a means for circumventing any immigration laws applying to non-EEA nationals to which F would otherwise be subject (such as any applicable requirement under the 1971 Act to have leave to enter or remain in the United Kingdom); or (b) to a person who is only eligible to be treated as a family member as a result of regulation 7(3) (extended family members treated as family members).

(5) Where these Regulations apply to F, BC is to be treated as holding a valid passport issued by an EEA State for the purposes of the application of these Regulations to F.

(6) In paragraph (2)(a)(ii), BC is only to be treated as having acquired the right of permanent residence in the EEA State if such residence would have led to the acquisition of that right under regulation 15, had it taken place in the United Kingdom.

(7) For the purposes of determining whether, when treating the BC as an EEA national under these Regulations in accordance with paragraph (1), BC would be a qualified person—

(a) any requirement to have comprehensive sickness insurance cover in the United Kingdom still applies, save that it does not require the cover to extend to BC;

(b) in assessing whether BC can continue to be treated as a worker under regulation 6(2)(b) or (c), BC is not required to satisfy condition A;

(c) in assessing whether BC can be treated as a jobseeker as defined in regulation 6(1), BC is not required to satisfy conditions A and, where it would otherwise be relevant, condition C.

The Appellants, both Afghan nationals, are elderly dependents of their British son (‘the Sponsor’). The sponsor decided to relocate to Poland where he set up a business. He moved to Poland first and was to be later joined by his wife and children. In the meantime, he was joined in Poland by the Appellants who were granted family permits as his ‘family members’ and then residence cards valid until 2021. The Sponsor’s wife and children subsequently had a change of heart and decided not to relocate to Poland, ultimately resulting in the Sponsor returning to the UK accompanied by the Appellants. They then applied (even though they perhaps did not need to) to be issued with a residence card, the refusal of which is the subject matter of this appeal.

The Home Office refused the application on the basis that the Sponsor had not provided adequate evidence in support of the application. Specifically, he had failed to prove that he was economically active in Poland as a self-employed person and that his residence in Poland was genuine. The focus of the appeal fell therefore on the Sponsor.

The appeal was heard on 26th April 2018 at the First-tier Tribunal. Tony Muman represented the Appellants. Before the tribunal the Appellants argued inter alia that the ‘centre of life’ test and the requirement to demonstrate a degree of integration is unlawful and contrary to EU law and that the correct enquiry in a case like this focuses on whether the Appellants and the Sponsor have been, or were formerly, residing in Poland in accordance with Directive 2004/38/EC; further that there is no minimum time period to have been spent in the host Member State, either for the Sponsor or the Appellants alone or jointly and to insist on such criteria would undermine the very essence of freedom of movement; also, that Regn 9 cannot be used to deter or penalise the Union citizen Sponsor for having exercised Treaty rights with the Appellants. In a determination promulgated 4th May 2018 the tribunal dismissed the appeal applying the Regulation 9(3) criteria. The Appellants appealed to the Upper Tribunal maintaining the view that the ‘centre of life’ test and the requirement to demonstrate a degree or integration is unlawful and contrary to EU law.

On 16th July 2019 Upper Tribunal Judges Rintoul and Coker sat to hear the appeal. Ramby de Mello and Tony Muman represented the Appellants. Having heard argument the Upper Tribunal delivered an ex tempore judgment holding that the FTT determination contained material errors in law and was unsustainable. The panel observed that that much of what is contained in Regn 9 on which the Secretary of State placed reliance is not found in the directive or in the treaty or in the caselaw, and appeared to be contrary to the Advocate General’s opinion in O & B v The Netherlands C-456/12. The UT held that there is no requirement for someone to have sole residence in the host member state; nor is there a requirement that that residence has to be permanent and that said person has to demonstrate integration.

The Upper Tribunal set aside the determination of the First-tier tribunal and adjourned to consider the test question whether the mere production of a residence card issued by another member state is a sufficient basis to be determinative of the application.

The same principle was repeated by Upper Tribunal Judge Rintoul in the subsequent case ZA (Reg 9. EEA Regs; abuse of rights) Afghanistan [2019] UKUT 281 (IAC).

Tony Muman appeared for the Appellants in both the First-tier and the Upper Tribunal instructed by Habib Hussain at Guildhall Solicitors.  

Please contact the clerks for any further information.

Halcyon teams defend injunction claim in School LGBT row: a pupil’s perspective

 

Last week following an intense five-day trial in the High Court Mr Justice Warby reserved judgment in Birmingham City Council v Afsar and others. The case was compelling both in arguments of fact and law; and its magnitude cannot be underestimated or overstated. Over the course of the summer parent’s protests gained national media coverage and were debated in the House of Commons. The case involved issues concerning the right to protest, parental rights, freedom of religious expression, racial discrimination, both direct and indirect, the permissible limitations the Court could impose on the use of the internet and in particular social media communications.

After an interim injunction was granted in June 2019 an exclusion zone was placed around the Anderton Park Primary School. The Defendants challenged the legality of the Court’s Order. The interim injunction was also framed against ‘persons unknown’ i.e. anybody who came to properly know of it. This was criticised by the Fifth Defendant in particular, who is a blogger on religious expression and who successfully intervened in relation to the terms of the injunction curbing comment on social media.

The Council sought to challenge the Defendants right to protest by applying for a permanent injunction prohibiting protests outside the school. The Council further sought to extend the interim exclusion zone thus effectively banning any form of protest in the vicinity of the school or elsewhere in the local area. The Council argued the protests should be held in the City Centre or outside the offices of the DfE.

The Court heard evidence how the Council decided to bypass other relief available such as public space orders in favour of an injunction predominantly due to the alleged behaviour of the protesters. Such a move would have involved the Council having to undertake Equality Impact Assessments and in doing so to consult with the community. Instead the Council considered an injunction to be proportionate (and quicker). The Court heard evidence in support of the Council from the headteacher and deputy headteacher of Anderton Park Primary School. The School accepted that it had no prescribed lesson plans on which it had consulted parents but instead weaved into its equality teaching subjects touching on LGBT themes. This included the use of books such as “and tango makes three”, “mama, mummy and me” and “princess boy”. The significant point of dispute concerned whether the School had consulted with parents prior to implementing this teaching.

An important aspect of the case and the principal defence to the injunction was whether the School’s practice was discriminatory both indirectly and directly. There was a clear juxtaposition involving the religious beliefs of the parents, the majority (94%) of whom are British Pakistani Kashmiri Muslims, and their rights as parents to be consulted over any LGBT teaching practices at the school. It was argued by the Defendants that the acts and practices of the School in implementing the LGBT policies, failing to consult parents, referring to the protestors as homophobic and extremists and simultaneously sharing a platform with LGBT activists and inviting them onto the school premises whilst refusing to mediate with the protestors was discriminatory.

The Court also heard how the headteacher as a public authority figure should not be immune from abuse on social media and in any event an injunction brought by a local authority to prohibit abuse towards the headteacher was not the appropriate relief. It was argued that any abuse which concerns harassment, alarm and distress should be pursued through the criminal courts or the complainants should seek an alternative civil remedy through libel/slander.

Judgment is likely to be handed down within the next few weeks.

Ramby de Mello and Tony Muman appeared for Defendants 1, 2 and 3
Paul Diamond and Thomas Green appeared for Defendant 5
Both teams were gratefully assisted by Muhammad Ul-Haq (pupil)

France: Banning the niqab violated two Muslim women’s freedom of religion – UN experts

France: Banning the niqab violated two Muslim women’s freedom of religion – UN experts

On 27 November Tony Muman led by Ramby de Mello appeared before the Grand Chamber of the European Court of Human Rights in the renowned case of S.A.S. v France, in which the applicant argued that the French ban against face covering (which came into effect on 11 April 2011) violated articles 8 (on the right to privacy) and 9 (on the right to freedom of religion) of the European Convention of Human Rights.  Although the law banned all kinds of face coverings with certain exceptions, it was generally understood to especially aim at banning the niqab (full body Islamic veil).

At the hearing Tony argued that the French ban was unnecessary and disproportionate and that there were other options open to the French government to achieve their security or integration objectives. 

The Court disagreed and in a split judgment handed down on 1 July 2014 dismissed the case. Tony’s reaction was published on this website.

Human Rights Committee says Strasbourg was wrong

Yesterday, however, in two landmark decisions the UN Human Rights Committee held that France violated the human rights of two women by fining them for wearing the niqab. The judgments are in French.

As first argued by both Ramby and Tony in S.A.S., the Human Rights Committee found that the general criminal ban on the wearing of the niqab in public introduced by the French law disproportionately harmed the petitioners’ right to manifest their religious beliefs, and that France had not adequately explained why it was necessary to prohibit this clothing. The Committee was not persuaded by France’s claim that a ban on face covering was necessary and proportionate from a security standpoint or for attaining the goal of “living together” in society.

Again, as first argued by Ramby and Tony in S.A.S. the Committee acknowledged that States could require that individuals show their faces in specific circumstances for identification purposes but considered that a general ban on the niqab was too sweeping for this purpose.

The Committee also concluded that the ban, rather than protecting fully veiled women, could have the opposite effect of confining them to their homes, impeding their access to public services and marginalizing them.  This was a specific submission made to the Grand Chamber by Tony but rejected (wrongly) by the majority of the Court.   

Next Steps

The next step is for France within 180 days to report to the Committee on the action it has taken to implement the Committee’s decision, including compensation of the two petitioners and measures taken to prevent similar violations in the future, including by reviewing the law in question.

For further information about the case or to discuss any related matter, Tony Muman can be contacted via his clerks or on 0121 237 6035.  

 

 

 

Tony Muman: Immigration & Asylum Law Barrister of the Year 2018

Tony Muman: Immigration & Asylum Law Barrister of the Year 2018

 

43templerow is extremely proud to announce that Tony Muman has been awarded Barrister of the Year 2018 in Immigration & Asylum Law.

The annual Lawyer Monthly Legal Awards 2018 recognises the achievements of law firms, lawyers, counsel and those connected to the legal world who have a proven track record in delivering results for their clients over the past twelve months. The awards are divided into individual and firm categories and individuals are assessed against criteria including:

  • The amount of documented activity in the last twelve months when compared to industry peers
  • Involvement in significant legal cases and legal activity
  • Legal expertise and innovation
  • Peer recognition and personal achievement
  • Strategic thinking and planning

Tony has also been invited to the launch event for the prestigious Chambers UK Bar 2019, when the latest Bar rankings will be released.  He has annually received recommendations in the Chambers and Partners Guide to the Legal Profession.

For any further enquiries please contact Tony’s clerks on 0121 237 6035 or clerks@43templerow.co.uk