Can Third Country National Stepfathers Derive Rights Of Residence From Union Citizen Children?: Part 2

O & S v Maahanmuuttovirasto v L [2012] EUECJ C-356/11 (06 December 2012)

This post analyses the rationale espoused by the CJEU in relation to its ruling which is highlighted in Can Third Country National Stepfathers Derive Rights Of Residence From Union Citizen Children? Part 1.

The CJEU’s Reasoning

(1) EU Law and Union Citizenship

The Court (para 38) observed that the joint position of Finland, Denmark, Germany, Italy, the Netherlands, Poland and the European Commission was that Zambrano related to exceptional situations where national law caused the Union citizen’s enjoyment of substantive rights to be denied. So the instant cases differed significantly in that O and M were neither the biological fathers, nor had custody, of the Union citizen children from whom they tried to derive their rights of residence. Equally, the fact that the Union citizen children’s mothers were permanently resident in Finland and were not compelled to leave Union territory to maintain the family unit was also in conflict with Zambrano. Hence, by that logic, the mothers’ choice to leave Union territory was not construable as an “inevitable consequence of the refusal to grant their spouses a right of residence.”

Can Third Country National Stepfathers Derive Rights Of Residence From Union Citizen Children?: Part 1

O & S v Maahanmuuttovirasto v L [2012] EUECJ C-356/11 (06 December 2012)

This pair of cases was referred to the Court of Justice of the European Union (CJEU) by the Korkein hallinto-oikeus – the Finnish Supreme Administrative Court. Although as recalled by recital (17) of Directive 2003/86/EC’s Preamble, the UK is not bound by this legislation on the right to family reunification, these cases nonetheless make very interesting reading because they also involved Article 20 (Citizenship of the Union) of the Treaty on the Functioning of the European Union (TFEU), Directive 2004/38/EC (the Citizens Directive), Article 7 of the Charter of Fundamental Rights (mirroring Article 8 of the ECHR) and Ruiz Zambrano (European Citizenship) [2011] EUECJ C-34/09. In addition to respect for private and family life, these cases also turned on children’s best interests. Centrally, the question which arose was whether a third country national’s right of residence could be derived from the Union citizenship of a child of which he is not the father but the step-father?

Home Detention Order Must Guarantee Earliest Possible Return

Md Sagor [2012] EUECJ C-430/11 (06 December 2012)

When questioned by the Italian police in 2009 in Rosolina Mare, Md Sagor (“S”) a street vendor without a fixed abode, explained that he was born in Bangladesh on 10 October 1990 and that he entered Italy in March 2009. S never had a residence permit. He was summoned before the Rovigo District Court (Tribunale di Rovigo) for illegal entry and stay contrary to Italian law.

To summarise, under Italian law irregular stays are punishable by a fine which may in some circumstances be replaced by an order for expulsion or home detention (an obligation to remain in one’s own home, or any other private residence, or in a place of treatment, assistance or day-care, every Saturday and Sunday, the duration of the home detention may not be less than six days and may not exceed 45 days. The convicted person shall not be regarded as being in custody). The relevant provisions under Italian law are set out at paras 10 – 19 of the judgment of the Court of Justice of the European Union (“CJEU”).

Independent Chief Inspector Slams Agency On Legacy Cases

On 22 November 2012, the Independent Chief Inspector of Borders and Immigration (“the inspector”) Mr John Vine CPE QPM – whose office was established under section 48 of the UK Borders Act 2007 – published An inspection of the UK Border Agency’s handling of legacy asylum and migration cases and it makes fascinating reading.

The inspection makes recommendations for improvements in the agency’s work. As disclosed by the title, the inspection’s purpose was to examine the efficiency and effectiveness of the UKBA’s handling of legacy asylum and migration cases.

The inspection concentrated on (1) the agency’s progress in respect of its targets regarding the clearance of legacy asylum and migration backlog cases (2) the agency’s endeavours to resolve cases in the asylum and migration controlled archives and (3) whether “live” asylum cases had been reviewed and taken to the furthest possible conclusion.

War On Students: It’s Not Cricket

Call him what you will (some people call him plain crazy), but on student immigration London’s cricket bat wielding/football kicking mayor Boris Johnson has got things dead right: “Against illegals, yes. Against talent, no. In football as in the economy at large, you don’t make people more competitive by excluding the competition … on this particular issue of the student visas I’m making a case that the Government doesn’t seem to agree with. I think I’m going to win the argument.” In denouncing his own party’s utterly useless immigration policies which target students (down 26 per cent, see below) and family members, Boris has won many friends in South Asia: a big and buzzing place with indelible ties to the UK. And on any view, punishing foreign students to appease xenophobia is clearly undermining the UK’s economic recovery. In South Asia itself, most notably in the Punjab, such stupidity is called Apnay Paer Pay Kulhari Maarna (to axe one’s own feet).

Immigration Rules Changed Again

Yet another set of changes in the immigration rules is around the corner and most of these will enter into force on 13 December 2012. To this end, Statement of changes in Immigration Rules HC 760 envisages a plethora of changes to the rules insofar as Tier 1, Tier 2 and Tier 5 of the Points Based System (PBS) are concerned.

Moreover, intertwined with these variations, changes in relation to “a more robust and clear criminality framework to assess immigration applications” are also forthcoming. The details are available below.

The impending changes will:

• Apply a new criminality threshold to all type of applications.

• Remove the references to unspent convictions as a requirement to make a successful application for indefinite leave.

Asylum and the Purposes and Principles of the United Nations

Al-Sirri (Appellant) v Secretary of State for the Home Department (Respondent) DD (Afghanistan) (Appellant) v Secretary of State for the Home Department (Respondent) [2012] UKSC 54  

In handing down judgment in these cases on the law of refugee status, the UK Supreme Court has confirmed that there is no internationally agreed definition of terrorism and that article 1(F)(c) of the Refugee Convention should be used cautiously because the correct test for its engagement is whether the act concerned destabilised international peace. In doing so, the court has adopted the UNHCR’s Guidelines on International Protection which explain that article 1(F)(c)’s – which sets the standard of proof as “serious reasons for considering” – operability requires individual involvement in crimes capable of affecting international peace, security and peaceful relations between states and/or serious and sustained violations of human rights. In cases involving terrorism, the correct application of article 1F(c) required an assessment as to the extent to which the terrorist act(s) impinged on the international plane.