Immigration Law in the United Kingdom: Advice to a client

If this is not the case, Danielle could seek to rely on Directive 90/365 on the basis that she is a person of independent financial means: I am told Danielle is wealthy.  Danielle’s family would be permitted to move with her under this provision, but the family would not be entitled to any of the social advantages provided to a family of a worker or a self-employed person.  

There is one further issue to address before moving on to discuss Danielle’s family.  No concerns appear to have been raised as regards the equivalence of Danielle’s qualifications.  However, Danielle would be advised about Directive 89/48 that places limits on the rights to have her qualifications recognised in the UK.  It provides no automatic right to have qualifications recognised: she has the right to have her qualifications assessed for equivalence.  Failure to have her qualifications recognised as equivalent would not necessarily be fatal to her rights to free movement.  She may be practising as a registered foreign lawyer and have agreed to undertake compensation examinations or training in order to practise in the UK.

3. The rights and obligations of Danielle Petrie’s family

Regulation 1612/68 allows a worker who is a national of a Member State to ‘install’ their family with them.  Note that similar provisions apply in respect of freedom of establishment so any conclusions drawn in relation to free movement of workers would arguably apply equally in this area.   The rights under Regulation 1612/68 will be triggered given that Danielle has been argued to be a worker and she has moved.  What constitutes family is provided for in Article 10 which states that a family member includes the ‘worker’s spouse and their descendants who are under the age of 21 years or who are dependants, dependent relatives in the ascending line of the worker and their spouse and any member of the family not coming within the above provisions (sic) if dependent on the worker or living under his/her roof in the country whence he comes’. 

I am not told whether Pierre is Danielle’s spouse, although I am told that he is a cohabitee as he is living in rented accommodation with Danielle in Harringford.  Pierre’s prima facie right falls outside of the provision of Article 10, given that he is not a spouse.  However, the question of whether a cohabitee may be considered a spouse was considered by the ECJ in Netherlands v Reed.  The Court decided not to extend the term spouse to include cohabitees, but concluded that cohabitees may gain the right to join the worker on the basis that to prevent them would be discrimination, relying on Article 12 EC as authority for this decision. Given that cohabitation is a social advantage to which UK nationals are entitled, so Pierre a French national should be entitled to the same.  

The facts imply that 4 of the children are Danielle and Pierre’s children, as there is reference to one of the children being her partner’s by his previous marriage.  At this stage it is important to note that the ECJ in Baumbast and R confirmed that descendants within Article 10 extends ‘both to the descendants of that worker and to those of his spouse. To give a restrictive interpretation to that provision to the effect that only the children common to the migrant worker and his spouse have the right to install themselves with them would run counter to the aim of Regulation No 1612/68’ (Para. 57).
Therefore, even if the children are Danielle’s children and not Pierre’s, and provided that they are under the age of 21 (which is likely given they are described as children) and Danielle has available for her family housing considered as normal for national workers in the region where she is employed, there should be no problem with them moving to the UK. We are told that she has rented accommodation in Harringford, although from the facts it is not possible to ascertain whether it is ‘normal’ for national workers in the borough where they are renting.  

Even if the 4 children were not Danielle’s own, as is the case with one of the 5 children, which is Pierre’s by his previous marriage, so long as they are dependent on Danielle or lived under Danielle’s roof in France they would be able to move to the UK with her, as they will be deemed family.  The test for dependency was established in the case of Lebon.  Dependency is a question of fact, not law, and will turn on the particular circumstances of the case.  Steiner nicely illustrates the difference between fact and law in this context, when explaining the decision in Lebon: ‘status of dependency resulted from a purely factual situation, i.e. support provided by the worker; it did not depend on objective factors indicative of a need for support’.  Provided either of these criteria is satisfied the children have a right to reside in the UK with Danielle.

 

4. Particular issues

1.       Availability of free bus pass

Article 7(2) of Regulation 1612/68 entitles the migrant worker to enjoy the same social and tax advantages as national workers.  Note that the same advantages are provided under Regulation 1612/68 for self-employed workers. Article 7(2) has been held to extend to family members and to cover all social and tax advantages whether or not attached to contracts of employment: for example, a rail card offering reductions for large families on travel was held to be a social advantage in Fiorini v SNCF.  The free bus pass which Danielle has applied to Harringford Borough Council to obtain for her younger child prima facie falls within the provisions of Article 7, given that it is for a family member and appears, by analogy to the case of Fiorini, to be in the nature of a social benefit.  

However, family members are only entitled to such rights if they are of benefit, whether directly or indirectly, to the worker (as per Lebon) and the benefit must constitute a social advantage for the Member State’s own nationals: see Belgium v Taghavi.  The bus pass would enable Danielle’s child to travel to school so would be of benefit to her, and it appears that free bus passes are also on offer to UK nationals of the borough.   The criteria imposed by the borough that a free bus pass will only be given to a child where the family has been resident in the borough for 1 year, may fall foul of Article 12 EC as indirectly discriminatory, as it arguably would be more difficult for a non-national to satisfy.  Even if there is discrimination, in any case, obtaining a free school bus pass is subject to a strict financial means test, which appears not to discriminate, and as I am told that Danielle is wealthy, she would therefore be unlikely to qualify for this benefit.  

2. Lawfulness of premium on home and contents insurance

Article 12 EC prohibits discrimination of the grounds of nationality.  The fact that an insurance broker is intending to charge Danielle up to 30% more that UK nationals for the house and contents insurance policy of a rented property is clearly discriminatory.  However, Article 12 EC only applies in conjunction with other articles of the Treaty: Ministerio Fiscal v Brea.  I would suggest that such insurance is not in the nature of a social advantage that would be available to UK nationals and as such Danielle will not be able to argue that the she should receive it on similar terms to UK nationals.  However, such a discriminatory provision could fall foul of EC competition law, but it is beyond the scope of this paper to consider this.  

3. Deportation on entry of Gabrielle

Directive 64/221 sets out the conditions by which the grounds of public policy, public security or public health may be used by a Member State to derogate from the free movement of persons provisions of the EC Treaty.  The Directive applies to workers and those wishing to establish themselves as self-employed persons, as well as their families.  The Directive also applies to persons of independent means who exercise their right to free movement under Directive 90/364.  Directive 64/221 also provides procedural safeguards that a person may be able to rely upon where grounds for derogation have been exercised against them.  

I am told that Gabrielle has been deported immediately from the UK as she attempted to enter the country with her family because she was found to be in possession of a small quantity of drugs.  Firstly, Gabrielle should be advised that the necessary procedural safeguards do not appear to have been complied with.  Article 7 provides that a person should be notified of the decision to expel them from the country and the period allowed for leaving the country should not, save in the case of urgency, be less than 15 days if the person concerned has not been granted a residence permit and not less than 1 month in all other cases.  There does not appear to be an urgent need to deport her, so at the very least Gabrielle should have been given 15 days to leave, even if the authorities could satisfy themselves that there were grounds for deportation.  

It is also unlikely that the UK immigration authorities could have satisfied the grounds to derogate from the principles of free movement of persons.  They would probably seek to rely on the grounds of public policy or security, although it is possible that they might rely on the ground of public health.  As regards the latter there is no evidence on the facts that she is a drug addict or has some other disease or disability that might justify preventing her, on grounds of public health, from entering and residing in the country.  To satisfy the grounds of public policy or security the threat would have to be genuine and sufficiently serious: see Rutlili v Minister for the Interior.   Whilst we are not told what drug was found in her possession, which would be important as regards the gravity of the offence, nevertheless, it was only a ‘small quantity’ and as such she is unlikely to constitute a serious threat to public policy or security.

4.4.        Conclusion

My advice, based on the available facts, would be that Danielle and her family have a right to enter and reside in the UK, but that that Danielle will not be able to obtain a free bus pass for her younger child nor obtain a remedy under the free movement provisions for the premium that a UK insurance broker is proposing to charge her because she is not a UK national.  However, the procedural grounds for Gabrielle, do not appear to have been complied with, and she is unlikely to have warranted deportation under the grounds for derogation anyway, therefore, it is likely that she will soon be able to return to the UK to join her family.  

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Bibliography

1. Coles, J. Textbook on the Law of the European Union, 2001, 3rd Ed., Old Bailey Press: London
2. Steiner, J., Woods, L., & Twigg-Flesner, C., Textbook on EC Law, 2003, 8th Ed., OUP: Oxford
3. Craig, P & De Burca, G, Eu Law Text, Cases, And Materials, 1998, 2nd Ed., OUP: Oxford
4. Weatherill, S. Cases & Materials on EU Law, 2003, 6th Ed., OUP: Oxford
5. CELEX Database, Lexis Nexis Professional

 

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