Mr. Justice Blake at the High Court of Justice has unambiguously found that the requirement that family members of European Union nationals must have been residing in an EU country before they are given a 'family permit' (similar to entry clearance for EU national and their families) is unlawful.

In Yaw Owusu [2009] EWHC 593 (Admin), the Appellant was the son (under 21) of a Dutch national who is living and working in the UK. Under the European 'Citizens' Directive', her defined family members, which include children under 21, are entitled to join her in the UK. There is no other requirement than the family relationship, unlike the UK's own rules which require there to be, for example, adequate support and accommodation for the applicant, and if over 18 that the child is living alone in the most 'exceptional compassionate circumstances'.

He applied for a family permit under the Immigration (European Economic Area) Regulations 2006 (these Regulations implement the Citizens' Directive into UK law) but he was reused the permit on the basis that he has not been living in another EU country. He appealed to an Immigration Judge who allowed his appeal, but not on the basis that he is entitled to a family permit but on the basis that he has a right of admission to the UK if he arrives at a UK port. However as the applicant is a national of Ghana, he needs entry clearance to come to the UK and therefore he would not be allowed to board a plane. Despite winning his appeal, the embassy still refused to issue the applicant with entry clearance or any other document which would allow him to travel to the UK.

After the Immigration Judge's decision the European Court of Justice found in the case of Metock v Ireland that a similar requirement requiring previous lawful residence in an EU country was unlawful.

In an application for permission to judicially review the High Commission's decision, Mr. Justice Blake said:

"The problem in this case is that regulation 12(1)(b) that was relied upon both by the entry clearance officer and the immigration judge is unlawful. It is a failure to transpose the requirements of the Directive 2004/58/EC of 29th April 2004 lawfully into domestic law. That Directive makes plain, first, by Article 2, who family members are and they include 2(2)(c), the direct descendants who are under 21 of the EEA national. Article 3(1), which says:

"This Directive shall apply to all Union citizens and to family members as defined in Article 2(2)..."

and the clarification given by the Court of Justice in the case of Metock C-12708 (delivered on 25th July 2008). Regulation 12(1)(b) needs to be removed at least as it affects spouses and children under 21 of EEA nationals and in the meantime immigration judges should be applying the Directive directly in accordance with the judgment in Metock'.

The judge found that the SSHD was manifestly seeking to rely on her own wrongdoing by not granted entry to the Applicant based on the Immigration Judge's decision that the requirements of Regulation 12 were not met.

It was proposed by the Home Office at the hearing before Mr. Justice Blake that the applicant should reapply as he was by that time over 21, but the judge described that suggestion as 'outrageous'.

The requirements of Regulation 12 are still in force although the SSHD has indicated that it will be amended it following Metock. However as the Home Office's position in the case of Yaw Owusu shows, it is very unclear the approach which will be taken by the SSHD to cases which have already been refused and particularly when the applicant is now no longer a recognised family member due to the passage of time.