The UK's Immigration (European Economic Area) Regulations 2006 (the EEA Regulations) set out the rights of nationals of the countries comprising the European Economic Area and those of their family members to live and work in the UK and the limitations placed on those rights.

The EEA Regulations themselves transpose the Directive issued by the European Parliament and the Council of the European Union known as the Citizens' Directive (Directive 2004/38/EC), which deals  with the right of citizens of the European Union to move and reside freely within the territory of the Member States.

As the Directive makes clear in its recitals - the principle behind giving rights to the family members of citizens of the European Union's family members is that the right enjoyed by any individual citizen of the Union to move freely within it to work and to provide services:

"should, if it is to be exercised under objective conditions of freedom and dignity, be also granted to their family members, irrespective of nationality"

"Citizens of the European Union" or "EU citizens" are basically "EEA nationals" in the language used in the EEA Regulations.    This is because the "European Economic Area" comprises not just those countries which make up the European Union but also, via various agreements, Norway, Iceland, Liechtenstein and Switzerland. 

Regulation 12 of the EEA Regulations covers the issue of an EEA family permit.  This is a document issued by an entry clearance officer to the family member of an EEA national who is working (or studying or providing services) in the UK.  A family permit proves the right of whoever has one to be admitted to the UK. 

Regulation 12 (1) (b) requires the family member either already to be lawfully resident in another EEA State or - if he or she is not lawfully resident in another EEA State -  to meet the ordinary requirements of the Immigration Rules.

This "prior lawful residence" restriction on the rights of free movement of the family members of EEA nationals was found to be unlawful by the European Court of Justice (the ECJ) when the Court examined the equivalent Irish EEA Regulations in a case called Metock v Minister for Justice, Equality and Law Reform (Ireland) (Case C - 127/08).  It was unlawful because there wasn't anything in the Citizens' Directive which allowed Member States of the European Union to restrict the rights of movement of family members of EU citizens. 

The ECJ's decision in Metock was issued in July of 2008.

The ruling in Metock was the reason for the Appellant KH's success in the Court of Appeal in KH (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1060.  The case involved an Afghan national who had appealed to the Asylum and Immigration Tribunal against an Entry Clearance Officer's refusal in June of 2007 to grant him a family permit to join his Polish wife in the UK because he wasn't living lawfully in an EEA state - he was living in Afghanistan, having been removed there from the UK in 2006 - and he didn't satisfy the requirements of the UK Immigration Rules covering the admission of spouses.

However the decision in Metock had not been issued when the officer refused KH's application.  It was only issued after KH had lost his appeal against that decision. 

KH managed to get an order for the reconsideration of his appeal by the Asylum and Immigration Tribunal.  By the time of the reconsideration hearing the decision in Metock was out and KH relied on it.  However the Asylum and Immigration Tribunal found that Metock was irrelevant to KH's appeal and upheld the Immigration Judge's determination dismissing his appeal.

When the case came before the Court of Appeal counsel for the Entry Clearance Officer conceded that the Tribunal's decison  could not be upheld due to the Metock ruling.  But he said that the appeal should be dismissed anyway because KH's marriage to his wife was not genuine but a "marriage of convenience".  The court disagreed that this had been concluded already by the Tribunal and sent the case back for rehearing.

This is a very significant development - that the ruling in Metock had shown that Regulation 12 (1) (b) was unlawful was made clear earlier this year in Yaw Owusu [2009] EWHC 593 (Admin).  It must be hoped that the Government will now amend the Regulations to get rid of it, as it should have done over a year ago.