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Reflection on Metock


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It’s taken a while, and attendance on a training course, but I feel better equipped to comment on Metock and the tribunal’s two responses thus far, in the cases HB and SM.

HB does indeed accept the ruling in Metock, which is in essence that a right to reside as a spouse of a Union Citizen under Article 2(2) of the Citizen’s Directive is not dependent on prior lawful residence in another member state. See paragraphs 48 to 54 in particular and then paragraphs 55 to 70 for the reasons. The European Court of Justice also holds that the marriage can take place after the Union Citizen has entered the member state in question (paragraphs 91 and 93).

I originally billed SM as a rejection of Metock. More accurately, it is a refusal to apply the reasoning in Metock to wider family members not falling within Article 2(2) of the Directive.

The Directive appears to create two tiers of family member. The first are specified at Article 2(2), to whom Article 3(1) applies, and include close family like spouses, children and parents. The second tier are wider family members defined at Article 3(2). However, the meaning of this part of the Directive is far from clear. It appears to leave at least a certain latitude to member states in deciding what family members might benefit from the provision and then what benefits they might receive, and yet it also sets out specific examples of relatives that might benefit. The only duty on member states seems to be to ‘facilitate entry and residence’ but also includes an express provision for ‘extensive examination’ of them and a right to refuse, albeit with a proviso that justification must be given.

Given that the UK courts have so far interpreted Article 3(2) not to give rise to any EC law rights as such other than a right to apply for entry and/or residence (e.g. KG (Sri Lanka) v SSHD [2008] EWCA Civ 13), the approach of the tribunal in SM was pretty much inevitable. The issue needs to await judgment from the ECJ on the meaning and scope of Article 3(2). I’ve no idea when this will happen but will post on it when it does or if I hear any news.

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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.


32 Responses

  1. Great synopsis FM and much more concise than the previous blogs on the issue, well done! It is great to see that it is agreed that Metock does not mean the requirements of our domestic Regulation 12 are in compatible as the UK makes no requirement of prior lawful residence in another Member State (only to meet Immigration Rules). One day perhaps, hopefully, that will change. But for now, thank you once again for a very clear post on a contentious and difficult topic which has been the subject of so much misinturpritation by the Home Office, Practioners and the courts alike.

  2. FM

    Think this is pretty much what we understood in your previous Metock blog.

    What about when “crossing borders”. EU regs indicate that an EU national can cross an EU border with their immediate [Article 2(2)] relatives for up to three months without visas.
    This, to me, indicates all immigrants with EU National relatives, whether they are legal or illegal (per Metock) – do you agree?

    I wouldn’t want to suggest to some-one (perhaps A) to travel to say France and have their spouse arrested at Callais.

  3. Mr T,

    Absolutely right, ALL immigrants can cross borders with an immediate [article 2(2)] relative for up to three months without visas as … once they within the EU (any member state) they are not illegal! And therefore are allowed to move freely with their relative between Member States.

  4. PO Box is right, in Metock the ECJ says that the principle of free movement requires that there should be no discouragement to a Union citizen residing in any other member state. Preventing their family members from being with them is such a discouragement, therefore it is unlawful under the Directive. This applies equally to the initial three months of ‘no questions asked’ residence and to more extended residence based on exercising Treaty rights (e.g. as a worker, self employed, etc).

  5. This may be going off at a tangent somewhat,but one thing which intigued me recently was the case of the two English men of asian descent given suspended jail sentences for trying to smuggle two illegal men out of the country at Dover.They were in the car boot.Ten year ban and no concessions there no doubt.Understandably these were pre meditated actions but at what point does the focus shift to the E.U citizen as well as the illegal immigrant? Mr t may be right about the spouse arrest,but would i not be aiding and abetting by knowingly co habiting(sheltering/harbouring?) and travelling between borders,say to ireland with her? And how come this does not influence decisions such as metock?Or is this the next big shocker to come?It’s already illegal to employ them after all

  6. A

    I have not heard of British partners being prosecuted for sheltering/harbouring in such circumstances, so I guess it is rare. There may be some big fines for bringing visitors who don’t return; bare that in mind when you send your overseas wedding invites out.
    It sounds like you can cross borders in EU OK, but don’t think you can get back to UK easily, except after six months or from Eire (CTA). Please think carefully where you book your honeymoon.

    FM & POBox – thanks for your replies.

    I am a bit confused over the UK policy and EU regs appearing divergent. Thought BIA was strengthening our borders, but EU regs appear to remove the need for a border.

  7. A,
    I’m not sure at what point you would inccur liability for not ‘grassing on’ or aiding and abetting an illegal immigrant. But .. the point to remember here is that if someone has an immediate family member who is an EU National, (and is therefore their family member) They are NOT illegal they have every right to be here or in any other EU Member State and to move freely within the Union, regardless of whether they initially entered the Union illegaly or not.

  8. Mr T,

    Indeed it can seem that way and of course on ‘mainland’ Europe there are no internal borders (Shengan Agreement) which is a great thing. The border that needs to be strengthened is the European Border and that can only be achieved by each Member State being given the power to maintain and impose rigourous entry clearence requirements, so long as they are compatible with the Directive, (Ireland’s domestic Entry Clearence requirments highlighted in Metock were going a bit far) This is crucial as in European cases entry to one Member State is entry to all.

  9. Thanks for your replies folks.What is interesting to me is the transition between illegal and legal status in these cases.The fact that the english lady had not only knowingly married an illegal algerian man,but also then managed to get him across to rep of ireland illegally too while she exercised her european rights.Which begs the question,how?Was that not a bit naughty in itself?Technically i could have married my overstayer(still rendering her illegal as i’m in my own member state),moved to ireland and applied to invite her to join me on an eu permit(and possibly succeed ok now?)….Or,without wishing to risk refusal and separation,could have done the same as the lady in this test case and sneaked my new wife into ireland for six months while i exercised free movement rights.I personally wouldn’t have dared chance it for fear of aiding and abetting.Though please forgive me if am missing something as i know nothing about immigration

  10. My initial reaction was to panic and ask the overstayer to go home to apply to come back legitimately under immigration rules.No way hosay! But after reading cases like metock it seems that i’d have had nothing to lose by sticking it out and just continuing the relationship.Infact,considering the incident at dover,i probably took a bigger risk in transporting her to the airport.Thus helping her to leave undetected.Surely this is not what the country needs..Ok,so if the overstayer was later found and deported (no come back on me presumably?) she could be banned up to 10years. But what if i then did the marriage and the european free movement route.? Would that get round the ban?

  11. I believe large chunks of Paragraph 320 (Immigration rules) don’t apply to EU based applications: ergo the ban doesn’t apply, and quite a lot of other things.

    If memory serves (i.e. this may not be right at all) – on similar notes – allow me to empty my brain with some thoughts/observations….

    @A – following on from POBox’s very good summary: the Home Office’s EEA guidance policies regarding some removals (this may not apply to Section 10 removals?) allow for the deportee (or administrative removee) to attempt to apply to join the ‘EU’ spouse. Because in effect, if I read it right, if you’re in a durable relationship/marriage you automatically become the family of an EU citizen exercising their treaty rights; hence your rights are enhanced, your right of residence is inherited from the them.

    @ POBox – I believe the House Of Lords did/is pushing/asking/wanting the UK to become more deeply entwined into the Schegnzen system…because we are only part of the criminal SIRENE (?) part at the moment? Seems a shame that the UK and Ireland seemingly going to ‘roll their own’ system, so to speak.

    I think eventually even the EU laws will get tightened up. I cannot see the EU’s Governments standing up to internal social pressures much longer cf. Metock; that would make them unpopular.

  12. DP / FM / PO Box

    Guys, do you think that the EU will model itself on the US immigration system, where work permits are handled at state level, but everything else is handled at a federal level?

    Do you think that a hybrid Schengan system incorporating all EU members is the what EU immigration policy makers are heading towards? Do you envisage no borders between EU member states, and Visa’s issued by one member state being valid EU wide?

  13. “Do you think that a hybrid Schengan system incorporating all EU members is the what EU immigration policy makers are heading towards? Do you envisage no borders between EU member states, and Visa’s issued by one member state being valid EU wide?”

    It’s alive already, it’s called the Schenzen zone….and it also incorporates other countries such as Iceland etc. A visa for one is, I think, a visa for all, because the EU has a system to check applications it looks to see if there is an alert against your name (criminal record, gunslinger etc). So if you’ve got a Sch. visa, you can bop around Europe (except England & Ireland which have separate requirements). For whatever reason we want to keep tight dibs on our border here with co-operating fully. Europe seems to have more of a clue to be honest. Ireland and UK are just seemingly, not interested, the Home Office is currently ‘consulting’ about the CTA common travel area….to standardise Ireland’s/UK’s visa processes. So we’ll really be on our own then..

    It’s fascinating reading the cases associated with entry reqs., especially where one country sets an alert against someone and the knock on effect. Wikipedia has an interesting overview with pictures: http://en.wikipedia.org/wiki/Schengen_Agreement

  14. DP

    Yes 13 of the original 15 EEC countries are part of the Scengen system.
    But I think none of the 12 countries that have joined the EEC in the last five years have signed up to the Schengen agreement.
    Do you know if there is a plan for them to do so?

  15. Hi Mr T,

    Nope they’re all there apart from Romania and maybe Bulgaria. I think they’ve got plans to join. And as far as the UK is concerned there is still a worker registration scheme active for people in those countries.

    Everyone else (ascension states), according to that Wikipedia source, is part of it – granted they’ve only very recently joined into the agreement.

  16. DP

    Many thanks – That makes 3 out of 3 links that have recently impressed me, very informatative.

    As far as I can make out though, there is still a difference between EU Schengen area, and the USA immigration system.
    eg. a US Citizen who gains residency in say France through a work related route; he can only visit the other Schengen areas up to three months at a time (not much better than the VWP he benefits from as a US Citizen).
    Compare that to a French man attaining the Green Card (US residency) through a work related route; he can live/work/move throughout all the states in USA without restrictions.

    Do you think Schengen will extend into residency eventually, or do you think it is enough that the resident can aquire a French passport in the above scenario.

  17. If you have a look you can get sch. visas for different purposes: employment is one such type, studying….

    I guess for a USA visitor/migrant etc there may be restrictions. Some of the visas can (if I remember right) be restricted to one place/type. I guess extending into residency is something that would be at the behest of the country itself, don’t know to be honest.

    I think the united states has had at least a few hundered years of being joined up :) – so in terms of Europe, what you’re in effect suggesting is the creation of a United States of Europe?

    Gherson’s website has some interesting news about cases for long residence for EU persons: http://www.gherson.com/articles/european-union

  18. PO Box

    In your blog#1 you say: “Metock does not mean the requirements of our domestic Regulation 12 are incompatible as the UK makes no requirement of prior lawful residence in another Member State”

    In DP’s link in #17 above, under “EEA nationals family members : restrictions on entry rejected” the Gherson author makes the following commentary:
    “It should be noted that this “prior lawful residence in another EU State” requirement is mirrored by the UK’s Immigration (European Economic Area) Regulations 2006 at their regulation 11 (2), which requires non-EU national family members of EEA nationals to have a family permit in order to join or accompany their EU national family member in the UK, and by regulation 12 (1) (b) (i) – the requirements for the issue of a family permit. Basically you can’t get a family permit without being lawfully resident in an EEA State, and without a family permit you can’t enter the UK to accompany or join your EU family member.”

    Since the ECJ’s judgement in Metock was that “prior lawful residence” should not be a requirement before issuing an EEA permit, is the Gherson author wrong?

  19. If my overstaying partner tried to enter the republic of Ireland I would assume she’d be refused entry under their immigration rules.ie flagged up on a computer,as am told England and Ireland share intelligence.Which is understandable.But if I was working there and exercising treaty rights and she came there with the intention of marrying me,what would happen then?Would she have to be admitted under europen laws or refused under Irish immigration rules? Or am I misconstruing freemovements text above ,quote ‘the ECJ also holds that the marriage can take place after the union citizen has entered the member state in question’

  20. FM: I’ve deleted this comment as it contains legal advice and arguably proposes a breach of UK and Irish immigration law. Both of these are enough to get me into trouble, I suspect. Also, the legal advice regarding Article 2(2) relatives and Irish nationality law was wrong…

  21. Thanks Mr T.Apologies for picking brains but the information on the blog goes a fair way towards being able to advise oneself the best route.It’s informative enough to at least suss out how well versed the solicitor is before choosing one,as it seems some don’t keep their finger on the pulse when it comes to updates and changes.Credit to freemovement…the ‘stig’ of immigration :-) My partner is no longer in the uk so the C.T.A doesn’t have any relevance to us really.I was just trying to work out if i’d need to fly to her country first to wed,before both relocating to eire,or whether she would be permitted entry for the marriage to take place in eire itself.It seems strange that taking a ferry to dublin can effectively legalise a situation(ie in the case of the algerian man) but taking it the other way would put us in breach presumably,as i’d be in my own member state(yes i am british).No surprise at the talk of border controls being reinstated maybe? Also a bit bizarre that no cert needed only when marrying in the church of england.What’s all that about?!

  22. Ref the baby part,does that mean an english resident can conduct a relationship with an illegal immigrant,conceive a child,travel to Ireland for the birth and apply to return to England on behalf of the child exercising its rights,regardless of marriage or not? In which case,every angle i look at this,the biggest mistake she made was to be honest and return home.Which proves a)it’s ludicrous b)our immigration rules are a little too harsh or eu rules too soft?

  23. A

    To be fair on UK immigration here, the baby senario (#23 & #21) is actually a quirk of EEA regulations and Eire citizenship law. The unusual situation of Northern Ireland has resulted in the area being covered by two citizenship laws. (I am wondering about Cyprus now.)

    Legitimacy has apparantly not been an issue under Eire citizenship laws for quite a while, and up to 31/12/2004 birth in Ireland resulted in automatic Eire citizenship.
    In UK citizenship law, legitimacy was an integral part of the BNA 1981, but since 1987(?) registration has been simple (>99% success rate), and since July 2006 legitamcy has been dropped from the citizenship requirements.

    While I don’t think the situation is ludicrous, many people involved may agree with you that UK immigration has become too “harsh”, and they are also surprised at the “softness” of the EEA reg’s by comparison, especially since Metock.

  24. My partner’s friends advised her that,once the embassy discovered the overstay,they would put a big ‘cross’ in the passport and throw the visa application straight out.Such is the word on the street in her part of the world. I consulted a very well known law firm in mayfair and was told,without hesitation,that she could return only by marriage.And even then they couldn’t guarantee it. And sure enough all the aforementioned came to pass .One can fully understand why the rules are harsh and examples must be made.Alternatively it’s easy to see why people don’t come clean and go home!.Bit of a tricky one really

  25. p.s am assuming that the european regs route would be the only way for a person under 21 to gain access after marriage then? Ie in the case of Lacy who posted from America?

  26. Wow, this post shows what a hot topic Metock is and as a European and sort of Euro ‘geek’ I’m glad the profile of EEA Immigration cases and freemovement both within the internal EU borders and our shared outer border is being raised!
    DP you make a very interesting point about the UK and Ireland sticking to it’s common travel area and opting out of the Shengen zone. After some research into the original agreement the reason for this negotiated opt out forwarded by the UK and Irish gov was and that we the Uk and Ireland are Islands and therefore our border has a different imutable characteristic from the internal ‘land borders’ shared by the Shengen states.
    I’m not sure that that ‘excuse’ carries much weight as I see it surely beig an island makes border crossing from the mainland to UK harder? No reason why you can’t have EU and Non EU channels at ferryports the same as at airports, But there you go, yet another interesting point that may upset a few out there!
    Mr T RE: post 18 Dp is right is is an old story, I’m grateful. but also :
    “Basically you can’t get a family permit without being lawfully resident in an EEA State, and without a family permit you can’t enter the UK to accompany or join your EU family member.”
    Is indeed wrong. Leaving reg 11 out of the equation because it applies only at port. You can get a family permit without lawful residence in an EEA state, you just have to meet the domestic Immigration rules, (see reg 12 (b) (ii)). I believe previously, with the exception of Ireland (thank goodness for Metock, not now) that is the same for whichever country you choose to use as your entry point into the Union.

  27. PO Box

    I agree with you here, European law does seem to be a lot more interesting, particularly in the Immigration arena.
    I like the European attitude of making a law, and not necessarily upholding it (cf moral majority).

    With UK & Eire opt out, I see that other islands (Iceland, Malta, Monaco) are all in Schengen, but not (yet) Cyprus. Guess a new excuse though is fairly easy to make politically, since 1990 is a long time ago, and there are new threats since 9/11 & 7/7.

    I personally think the Schengen concept has far more pros than cons, for removing border traffic queues, and particular the reduction in costs of maintaining/staffing/enforcing borders between (EU) countries. I think the removal of CTA may fail due to the costs of implementing & running the EIRE/UK border controls, particularly in this current economic climate, and in light of the ID Card budget spiraling. I also struggle to see any significant advantages being attained by CTA’s removal, especially now as the IRA have disarmed.

  28. I understand southern ireland’s immigration rules are completely separate to England. Suppose it’s too easy for people to enter here illegally from there when they wouldn’t necessarily have qualified otherwise.Then there was talk of extremists gaining south african passports to enter under the visa waiver arrangement i think.Which possibly won’t help

  29. A

    Interesting to hear you are thinking of moving to Eire. Their economy is suffering as much as ours at the moment, and GB pounds don’t go a long way in Eire at present.
    Eire of course has its own immigration rules, and if you want to get married in Eire then you may have some reading to do.

    Irish Nationality law (IN&CA2004) is also very interesting, and, if I am reading it correctly, has some sections that may prove useful. Here are a couple of my amusing annecdotes that could be a pointer.

    Q-Whats the difference between the film ET and IN&CA2004
    A-One is extra terrestrial, the other extra territorial.

    Q-Mr Home Secretary, (1) will the UK ever extend its citizenship laws to include Eire? (2) will the UK recipricate to Eire by extending British nationality to children born here of Eire parents?
    A-(1) no ET (2) no comment.

  30. Hi mr T. Good point.Like E.T,property prices in Dublin area are out of this world. Hopefully it won’t be necessary anyway, but eire’s a lovely part of the world and am open minded regards re locating.Interestingly i’ve spoken to staff at the Garda national immigration bureau and the Irish embassy abroad.Typical of Irish folk they seemed surprisingly open and relatively friendly.No V.F.S in front of those people,just straight through! Does anybody know what is happening with border controls between uk and eire? Was it just talk or is it going ahead?

  31. Hi Freemovement

    I have read your comments that The issue needs to await judgment from the ECJ on the meaning and scope of Article 3(2).

    What is that issue?

    The ECJ has already stated in Metock that there are no provisions in the Directive making its application conditional on prior lawful residence in another Member State.

    Do you think that UK court wants to ask this question to ECJ again? Does it make sense to refer to ECJ?