European Union

In FS (Turkey) [2008] UKIAT 00066 the Asylum and Immigration Tribunal found that the principle of ex turpis causa non oritur actio – or “no court will lend its aid to a man who founds his cause of action upon an immoral or illegal act” enabled it to dismiss the Appellant’s appeal against the Secretary of State’s refusal to vary her leave to remain from that of a visitor to that of a self-employed person. 

The European Parliament this week approved a proposal which will enable member states to conduct trials of citizens of other member states in their absence.  If, as seems likely in the absence of the accused person, he or she is convicted – it will then be open to the convicting state to apply for accused to be extradited.  

In a landmark decision issued on 25 July 2008 the European Court of Justice’s Grand Chamber has found that the people married to or in a civil partnership with a citizen of the European Union (the “EU”), and who are not themselves EU citizens, must be allowed to remain in their spouse or partner’s home country.  

In YB (EEA reg 17(4) - proper approach) Ivory Coast [2008] UKAIT 00062 (13-08-2008) the Asylum and Immigration Tribunal considered the proper approach to be taken by the UKBA in considering an application for a residence card made by an extended family member of “an EEA national” (an national of one of the countries comprising the European Economic Area).  

The European Parliament’s Commission on Petitions has decided that a petition questioning the correctness of the United Kingdom’s “transposition” of Article 16 of Directive 2004/38/EC (the “Citizens’ Directive) is admissible.   Article 16 of the Citizens’ Directive gives nationals of the European Union  the right to reside permanently in member states in which they have resided for five years. “EEA nationals” (nationals of the European Economic Area) are citizens of the European Union as well as nationals of Norway, Iceland, Liechtenstein and Switzerland.

In KG (Sri Lanka) and AK (Sri Lanka) [2008] EWCA Civ 13 (25 January 2008) the Court of Appeal considered Article 3 (2) of Council Directive 2004/38/EC.  The entire Directive has been implemented into the domestic law of the United Kingdom by the Immigration (European Economic Area) Regulations 2006.  

As part of the continuing harmonization of the determination of asylum applications by member states of the European Union (the “EU”) the Asylum (Procedures) Regulations 2007 and HC 82, a statement of changes in the immigration rules, both came into force this month.

The Asylum and Immigration Tribunal has held that for persons seeking admission to the United Kingdom as the family member of an EEA national possession of an EEA family permit is not a necessary requirement of the Immigration (European Economic Area) Regulations 2006.

In June, we expressed concern that some courts were seeking to reintroduce the “truly exceptional” test in relation to claims under Article 8 of the European Convention on Human Rights (ECHR). In a welcome decision, AG (Eritrea) v Secretary of State for the Home Department [2007] EWCA Civ 801, the Court of Appeal has expressed concerns about “continuing controversy” about how the immigration courts should now deal with Article 8 claims and has set down clear guidance for the interpretation of the House of Lords’ judgment in Huang.

EU law has become a valuable instrument for EEA (European Economic Area) nationals and their non-EEA family members when exercising their rights to live, work and settle in the UK. However, the transposition of EU law into UK domestic law by the Immigration (EEA) Regulations 2006 has also caused confusion and concerns.