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Shared burden in European cases


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Mark Symes

Quick heads up for an interesting post by Mark Symes on the HJT Training blog. In the recent case of Amos v Secretary of State for the Home Department [2011] EWCA Civ 552 (12 May 2011) the Court of Appeal rejected the argument that there is a shared burden between the claimant and the UK Border Agency in establishing whether the claimant has retained rights of residence under European law since the breakdown in a relationship.

This is a really difficult issue, and one that Mark will be discussing in the upcoming London and Birmingham training course plugged in his blog post (and now here as well!).

My tuppence worth is that the day Amos came out I had just finished drafting grounds to the Upper Tribunal on exactly this point, and then had to entirely re-write them. I was interested to learn from the advisers instructing me in that case (I ought to give credit as it was their argument, not mine: Asha and Robin at Global Immigration Solutions) that there is a power for the UK Border Agency to obtain a person’s National Insurance and other HMRC records if they so want, under s.40(1)(j) of the UK Borders Act 2007. I had always wondered how to get over the data sharing hurdle, as I doubted that UKBA would have the power to obtain the NI records of a third party without their consent – but I needn’t have worried, of course, as the last Government was quite keen on eliminating such problems.

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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.