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Metock accepted by tribunal


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It should not be a shock that the Asylum and Immigration Tribunal have in a case called HB (Algeria) just accepted the European Court of Justice decision in Metock. UK courts and tribunals are required to accept the ECJ’s judgments on the interpretation and meaning of European Community law, after all. Nevertheless, I was a little surprised to see the tribunal accept the full implications of Metock without more of a fight, being as it blows away a whole load of tribunal case law, of which senior members of the tribunal seemed very fond, as well as some Court of Appeal authority.

Metock was decided over the summer while I was away. I’ve been considering a belated post on it since my return, as it is such an important decision. It concerns the position of third country national family members of EEA citizens, meaning, for example, a Nigerian who is married to a Dutch national. Immigration lawyers generally took the view that EC law gave such a person a right to reside in the same country as their EEA spouse. The tribunal disagreed, imposing two additional requirements: firstly, that the third country national was lawfully in the EEA already and, secondly, that the EEA spouse and third country national had moved from another EEA country to the UK, therefore exercising free movement rights. The upshot was that those in the EEA unlawfully, for example after arriving illegally as asylum seekers or after overstaying their permission to stay, or those who had come directly to the UK and had not relocated from another EEA country with their spouse, could not benefit from EEA law.

This approach was ruled unlawful in Metock, to much media comment at the time, and the tribunal have now gracefully accepted they were wrong, although not without pointing out that there was some authority for their approach, in the earlier ECJ case of Akrich. The tribunal also rather boldly goes on to offer a tentative opinion as to which Court of Appeal cases are also now rendered wrong in law by Metock. KG and AK (Sri Lanka) [2008] EWCA Civ 13 in particular is singled out.

The judgment helps anyone who is from a non-EEA country but is married to (or the child or parent of) an EEA citizen who is in the UK and is employed, self employed or self sufficient. In certain circumstances, as in HB (Algeria) itself, it can even help a non-EEA national with a relationship to a UK citizen.

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.


8 Responses

  1. Hello Freemovement,

    Have you heard about any change made recently (in september) in regards to the Metock ruling?

    With best regards

  2. Freemovement.

    Does the Metock case mean that the following applications can be made?
    1. Non-EU person (legal/illegal) married/in civil partnership to a UK citizen can apply within the UK (EEA2 application)
    2. Non-EU peron (legal/illegal) with a UK child can can apply if child is self sufficient (EEA2 application)
    3. Non-EU person with either UK partner or UK children make an application in eg.France even if illegal in UK and eg.France.

    Will previously refused applications be reconsidered automatically or be reveiwed, or will only fresh re-applications be considered?

  3. My husband is Indian and Im Lithuanian, but residing in UK, he was refused his entrance to UK, but without any explaining reason (Embasy takes sooooo long) hope Metock will help us, as its a bit too long, kind of discrimination against other race.

  4. Good news folks! KG and AK (Sri Lanka) [2008] EWCA Civ 13 is not wrong in light of ‘Metock’. The Tribunal have seen sense and realised that ‘Metock’ has NO impact on Other / Extended family Members, and they cannot benefit from the amazingly liberal approach suggested in ‘Metock’. If you don’t believe me see… SM (Metock; extended family members) Sri Lanka [2008] UKAIT 00075.

  5. PO Box, thanks for flagging this up. It’s not a legally sound decision decision in my view and will be overturned on appeal. See Ms Arfon Jones’ past experience of being overturned in the HSMP test case. In the meantime, lots more appellants who in fact have a right to be here will lose their cases.

  6. SM (Metock; extended family members) Sri Lanka [2008] UKAIT 00075. Tribunal wasting the eu family members time. The judgement is full of travesty. They are pretending as if they do not know the meaning for ‘country from which they come’. This is the simple language. Even children knows this type of words meaning. ECJ in Metock clearly indicated that none of the provisions in the directive requires ‘prior lawful residence’.

    If the tribunal behaves like this, the people will get so fed up and will lead to disbelief in the tribunal justice system.