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Metock rejected by Tribunal


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Further to my last post on this subject, it turns out that my surprise was entirely justified, as a different and more senior panel of the tribunal has decided, basically, that Metock changes nothing and it should be business as usual. The case is SM (Metock; extended family members) Sri Lanka [2008] UKAIT 00075.

Rick Scannell
Rick Scannell

It seems to me that the tribunal is behaving increasingly like a party to proceedings. Collectively, through the reported and starred determinations system and probably through training and the online judicial discussion forums, the tribunal adopts somewhat tenuous but almost always conservative legal positions and then seeks to argue and defend them. This case is a classic example of this tendency. The tribunal is simply unwilling to let go of a legal stance that is clearly in conflict with a binding judgment from the European Court of Justice. The arguments relied on by the tribunal show no recognition of the basic principles of EC law. On whether that is through ignorance or is wilful I will not comment, but in this case the tribunal had the benefit of advocacy by one of immigration law’s leading barristers, Rick Scannell, who is a particular expert on EC free movement law.

The recent Court of Appeal case of GOO highlights another example of a stance that the tribunal has sought to maintain against higher court authority but finally seems to have lost, in that instance. See – I find myself referring to the tribunal ‘losing’ an argument. How can that be right for an impartial and neutral tribunal?

Thanks to those who left comments on my original Metock post.

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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.


19 Responses

  1. I feel the need to hide under a table with a tin-foil hat on….if Metock didn’t overule/replace/remove the underpinning squiffy (UK government led) reasoning in Ackrich why did Mr Metock win his case?

    Metock seemingly managed to upset the applecart for a number of countries, including Ireland, UK , especially Denmark. So this is clearly the HO’s attempt to reign in the ruling; not being trained in the legal arts :) the general impression I got from the Metock case was that EC rules are always above national ones. Have a read of this and compare to the ruling… http://ec.europa.eu/commission_barroso/frattini/archive/guide_2004_38_ec_en.pdf . Perhaps I could post the tribunal a copy for info ;-)

    Still I guess judging by the general asinine style with which that decision was made suggests that: a rose cannot be a rose by any other name because the description suggests it’s clearly slightly different to a rose…..it has a different name…..therefore it cannot possibly be a rose…..we’ll have to stick to our guns on this one….it’s definitely not a rose….

    Question is :) would the high court uphold such logic?

  2. Metock case implications now and in the future for Core Family Members:

    Remember the mantra “all animals are equal, but some animals are more equal than others” (Orwell’s Animal Farm).
    In Immigration law a similar mantra could be written about EU Nationals. “All EU nations are equal, but EU Nationals exercising treaty rights and dual EU Nationals are more equal those who are not.”

    The Metock case removed the “illegal status” barrier meaning core family members of EU Nationals exercising treaty rights can all now make free EU applications for their non-EU family members, irrespective of their immigration status.

    This means EU Nationals exercising treaty rights in UK have preferential treatment in immigration law above that of UK Nationals. This is true of all EU nationals in their own countries, although some EU countries may treat their own citizens better than the UK Government currently treats theirs.

    EU dual Nationality citizens, such as those from Northern Ireland who can claim both UK and Eire citizenship,
    are always exercising treaty rights from an EU immigration law standpoint.

    Normalising / Legalising immigration status:
    This has the effect of changing immigration advice in an unusual way:
    eg#1 UK nationals are better off in Eire or N. Ireland, where their new born children can claim Eire citizenship. On return from Eire to UK the non-EU partner/spouse can make an EU application.
    eg#2 Single people would be better off in UK with an Eire spouse/partner than with just a UK National.

    EU applications are free, and save a typical applicant over £1,000. It is only UK Citizenship
    that is still charged, achieving ILR is free.
    EU applications have a lower standard to attain, a higher success rate, with less subjective criteria,and a right of appeal.

    In the future:
    Given that the “legal status” requirement for core family members lasted less than three years, as did the UK’s COA system in its original form, I predict that this form of “discrimination” against EU citizens in their own coutry will eventually be ruled in breach of EU Law. The easiest remedy
    is to remove the “exercise of treaty rights” requirement so that “all EU Nationals are equal”. – (In my opnion – FM what’s your opinion).
    Either that or UK immigration law changes for relations of UK Nationals, but I think that has one of two hopes, and it isn’t “Bob”.

  3. Think the above applies to me perhaps.I’m trying to marry a previous overstayer.Much to my financial detriment.I’m not prepared to undertake this in her country as i am pretty certain they will refuse the spouse visa and they’ve managed to separate us months already.Basically i’m having to wait eight months for a stranger in an appeal court to flippantly decide our fate.What a marvellous system…not.To make matters worse I understand that if I was polish/french etc etc,then I could marry with a far greater chance of success by exercising european rights.It’s discrimination ‘cos I is British’!

  4. A:

    If ‘Metock’ is right and SM is wrong. Then yes it appears that EEA Nationals in the United Kingdom would be in a better position than you, when trying to gain entry to the United Kingdom for their spouses and other family members and yes it would be “discrimination cos I is British” See the following example:

    You a British Citizen marry a Nigerian woman. You apply for entry clearance, she would have to satisfy the Immigration rules to be granted entry into the United Kingdom (para 281).

    But … If a Frenchman, who was living in the United Kingdom (as a qualified person) was also married to a Nigerian woman, she would not have to meet the Immigration rules and would have to be admitted under ‘Metock.’

    Of course: If you go to another EEA Member State as a qualified person you could apply for her to join you in that country and may be able to argue the ‘Metock’ point when / if they refuse your spouse’s application under their domestic regulations. If they don’t refuse her application she could travel back to the UK with you.

  5. A

    Please let me give you some words of wisdom from some-one who has been their and can empathise.

    Try broadening your horizons, and setting some life goals.

    Try visiting your fiance’s country. You may love the place, the culture, the people, just like you love her. You may love the place so much that you want to enjoy your life their together. The £10K for your solicitor and the £2K for the visa fees could buy you a house there.

    If that doesn’t yield results (eg. if she is from Zimbabwe) try Ireland, as it is at least English speaking.

    If she is the one for your, and you want to get married, you could try the Anglican Church.

    Don’t let immigration rules dictate your life, but let your life goals do that. Once you are sure what you want, then look at your immigration options.

    All the best!

  6. UK in serious breach of community law / Directive 2004/38/EC

    1. After implemented the UK EEA regulation 2006, I was shocked to see that “Prior Residence in an another EEA member state requirement “ in Regulation 12 and 8

    2. In reply Home Office confirmed that the requirement is from Akrich ECJ judgement and from Advocate General Opinion in Jia Case

    3. We all understood, that UK wilfully inserted that requirement to restrict the EU family members. They applied Akrich Rule as a general rule for all EU family members, who (EU members ) are exercising or moving to exercise Treaty rights.

    4. We all know, Akrich Case was entirely different. UK national if wanted to enjoy community rights in their own country, then that UK family members must reside lawfully in an another EEA member state.

    5. As soon as the ECJ clarified that in Jia case, member state should have to remove that requirement. Where especially UK stance for that requirement is from Akrich and Advocate Opinion in Jia case. We all know that in Jia, ECJ rejected that “prior lawful residence” and also that Advocate General Opinion. Even Akrich case is no more hereafter after Metock.

    6. Further we all know that UK tribunal and CA supported the Government approach to restrict the particular race of the EU family members.

    7. They have differentiated and still now differentiating two types of EU nationals and their family members . One is from EEA state and another is from Third country. In fact, both side family members are EU national family members. Why such a differentiation.

    8. Indeed Directive opposed that type of discrimination. Their is no such direction from Directive to differentiate two different types of EU nationals family members .

    9. ECJ has clearly indicated in Metock under para. 87 “……. First, none of those provisions requires that the Union citizen must already have founded a family at the time when he moves to the host Member State in order for his family members who are nationals of non-member countries to be able to enjoy the rights established by that directive.

    10. UK judges may be thinking that the EU law makers doesn’t know English Properly. In fact they are very well in that language. They know what the law. The language is very simple. ‘the country from which they have….” . It refers to any country, there is no such specific location where the family members coming from ….(the family members of EU national irrespective of their nationality). Otherwise, the directive would be read as ‘in the member state from which they have come……”

    11. In fact if we compare the wording from previous legislation , Article 3(2) of directive 2004/38 is based on Article 10(2) of Regulation 1612/68 and Article 1(2) of Directive 73/148, which call on Member States to facilitate the entry of other family members of the Union citizen who are dependant on him/her or lived with him/her in the country of origin. The facilitation of entry and of residence of family members not covered by Article 2 where serious health grounds so require, is a novelty of this Directive. Article 3(2) only applies to people without such a residence entitlement in their own right.

    12. If we take any other language, it is very well written, country of origin of EU family members. EU national origin and their family members origin could be from any country. There is no particular geographical location. The only fact has to be ‘EU national must exercise treaty rights’. The rights for their family members is the derived rights from that EU national.

    13. In Jia case C-1/05 under para 37 the key authority ECJ mentioned “……… The need for material support must exist in the State of origin of those relatives or the State whence they came at the time when they apply to join the Community national.

    14. Further it has been well clarified in Metock. Ireland has done that requirement as a general for both article 2 and 3 of the directive.

    15. As soon as the ECJ clarified, they revoked that requirement. There is no such requirement in Ireland.

    16. But UK wants to keep that requirement especially for article 3(2), where there is no basis in community law

    17. Such a differentiation of community law in Ireland and UK is not at all compatible. All must respect the law and rights of individuals.

    18. If UK is going to behave, it will lead to a bad direction.

    19. Hope good judges will revoke as early as possible

  7. Thankyou mrT and Po Box. I take the point about re locating to my partner’s part of the world or Ireland.Unfortunately it would mean sacrificing a lucrative business and the impossible (at moment) task of selling my house.However it may still come to this in the future.She openly admits she would be very happy for me to do this,thus dispelling cynical notions of a marriage of convenience .The bizarre part from where i’m stood is the extreme difficulty and uncertainty involved in trying to bring a foreign national into my own country,as european foreigners,often speaking no English,come and go at will.And what kind of system is it which places the onus fully on the immigrant during an application for the unification of two people,where the English future spouse is merely an insignificant sponsor?I personally have had my uk marriage refused without a single word uttered to me by a clearance officer.It’s a topsy turvy world indeed :-)

  8. A


    I guess the HO are giving you a hard time because your partner/fiance is a “Visa National”.

    PO Box gives the example of Nigeria.

    I think an ECOWAS citizen.

    Are you able to satisfy our curiosity?

  9. Hi D.P. Maybe you could ask one of those workmates to wed her ,bring her across and hand her over :-) .But seriously though it seems the odds are stacked against one for going by the book somehow..As po box rightly pointed out she could be refused entry to other eu states under their domestic regs.And it could be argued using Metock etc .However it’s easy to forget that it’s a life changing application.Anything less than 100% certainty is just too big a risk to take,and far from the normality of an everyday marriage.Bearing in mind the previous lack of airport exit checks and the resulting unknown quantity of illegals here,it’s maybe time the Home Office gave more credence/support to those citizens who unwittingly become involved.There’re sure to be a few!

  10. Mr T.Excuse my naivety but do you mean from a country whose citizens require a visa before travelling to the uk? In which case,no she actually obtained a six month visit visa upon entry..then overstayed.Prob prudent just to say not a million miles from Nigeria though.And very attractive of course :-)

  11. EUFreemovement re: family members (I accept not all other/extended family members) the UK’s regulation 12 (b) makes and never has made a requirement for the Family Member to reside in another EEA State as the Irish regs did. (Which is clearly not right as the ECJ have decided in ‘Metock’.)
    What the UK’s regs say is either reside in another member state … OR meet the Immigration rules e.g be treated the same as British Citizens wishing to bring their spouses to the UK. I fail to see what is unfair about that??

  12. correction (It’s getting late!) :

    2nd line of last post should read, ‘does not and never has made a requirement.’

  13. Hi PO BOX:

    Thanks for your comments. First of all, all have to understand community law is different from National Regulation of each member state. Do not mingle or mix those laws. There is no such requirement in community law that who are coming from EEA member state is treated differently than others who are outside the EEA member state.

    Article 2 family members do have automatic rights. Article 3 family members (beneficiaries) do have rights for their entry and residence, once they established dependency or living under the same householad or serious health grounds or union citizen partner has a durable relationship.

    There is no such distinction that the family members who defined in article 3 should come back from EEA member state and others not. Who is the authority for giving such differentiation for UK national law?

    We must all understand that article (3) of directive 2004/38/EC is the obligation arises from the treaty. Hence, all member states should respect this obligation of beneficiaries provided if they are dependants or living in the same household or serious health grounds or union citizen partner has a durable relationship.

    In EU law, all are family members. Not like distant or extended or too distant family members as defined in national legislation. Beneficiaries defined as other family members, this means other than who are defined in article 2 provided they meet the above mentioned condition.

    National legislation cannot be implemented as they wish. As I mentioned in previous comments, there should not be difference in treatement for EU national family members those from EEA member state and other from outside. All you have to see is ‘EU National is exercising treaty rights’.

    Those who move to another member state can enjoy the community law benefits. This free movement is to encourage the EU national to move to other member states live socially, enjoyably with their loved ones, so that, it will improve the economy and social conditions of that each member states. National law should have to be compatible to the directive.

    Hope this clarifies your “Fairness and or Unfairness” about the UK regulation.

  14. Eufreemovment: It seems all you have to do now is convince the courts? Whom, it must be said, do not seem to agree with you that the regs are incompatible with the Directive. On the contrary our domestic regulations (unlike those of Ireland)have consistantly been found to fairly implement Community Law. Of course, the situation may change (I’m sure you are hoping / convinced that it will) when/if that happens, I accept: our deomestic regulations will have to be changed to reflect the ‘correct’ situation / implementation and interpretation of Community Law. But I don’t believe that day arrived the day ‘Metock’ was promulgated.

  15. Let’s face it, the government would only become more unpopular if they did implement the reg’s properly…………The notions and the popularity of the European Union isn’t overly great in the UK at the moment……what with funny shaped bananas and pounds and ounces…

  16. There’s an even worse example of the Tribunal insisting that whatever a higher court says is irrelevant if it’s in conflict with a tribunal decision in the fact that SM and Others (Kurds – Protection – Relocation) Iraq CG [2005] UKIAT 00111, where an appeal was allowed by the Court of Session who regarded the Tribunal’s reasoning with thinly-veiled contempt, remains on the AIT website as country guidance; it was actually cited against me when I tipped up at the Tribunal for the rehearing! See this article.

  17. EU Embassies in Moscow have told me (a British citizen) my wife, a Russian citizen is not entitled to the same free movement rights under ec directive 38/2004 because I am not exercising treaty rights (we live in Russia and have done for 5 years now)
    Can this be true, have I lost my European citizenship because I chose to live in a third country?

    1. Simon, that sounds like they may well have it wrong. You need legal advice. There are some good specialist EU free movement firms if you’ve got the money (generally, it’s worth it), such as Kingsley Napley. There are plenty of others too but I’m not going to start drawing up lists.