Merkel Joins the Fray – Brexit Seems Ever More Likely

David Cameron has experienced enormous pressure to take a tough stance on immigration an EEA immigration issues of late. On the one side he has the simplistic and sometimes verging-on-racist “coming over here, taking our jobs” brigade. And the importance of their voice is vastly amplified by the defection of Tory MPs and voters to UKip.

From the other side he has the gentler and  more  thoughtful voices of elder statesmen from his own party as well as those of economists and business pointing out that the measures for which the crowd bays would be economically damaging to the UK.

The Conservatives have stated that they will try to curb EEA migration if re-elected (it is unclear how this would be lawful without withdrawing form the EU, as it violates a fundamental principle of the Union).

Now Angela Merkel has jumped in. She warns him that attempting to limit immigration from within the EU  would amount to “a point of no return” for the UK- Der Speigel has reported that for the first time Merkel has become increasingly worried about a British exit from the EU (dubbed “Brexit”). It is thought that Germany would cease its efforts to keep the UK within the Union if any effort was made to impose such a cap.

Cameron has stated that, if re-elected in May, he will hold an in-or-out referendum in 2017. He wishes to remain in the UK and knows it is best for the UK, but will sacrifice that benefit for his own and his party’s political gain.

This immigration blog post: Immigration Lawyer Jeremy Chipperfield, practising from the chambers of Michael Mansfield QC, Chancery Lane, also writes at Immigration Barrister website www.iBarristersChambers.com

pressureGague

Photo: thanks Fabian

This immigration blog post: Immigration Lawyer Jeremy Chipperfield, practising from the chambers of Michael Mansfield QC, Chancery Lane, also writes at Immigration Barrister website www.iBarristersChambers.com

Kamila Santos Campelo Cain – Surinder Singh and Extended Family – Determination

Following requests and with the kind permission of the Appellant, here is the determination in the above (presently unreported) case:-

Kamila Santos Campelo Cain v Secretary of State for the Home Department.

This immigration blog post: Immigration Lawyer Jeremy Chipperfield, practising from the chambers of Michael Mansfield QC, Chancery Lane, also writes at Immigration Barrister website www.iBarristersChambers.com

Mouth, Trousers, and the European Immigration Cap

Boris Johnson, Mayor of London suggested the idea.   Now No. 10 is letting it be believed  that it is considering a cap on immigration to the UK from the EEA.

It is hard to see how such a proposed cap could be consistent with the central treaty commitment of free movement [Ed- immigration barrister says a simple overall cap would not be lawful]. Whilst some other European nations are hearing similar anti-Euro-immigration rhetoric from their politicians, the promises made are different in kind.

In Germany, for example, there is talk about limiting the period for which immigrants can stay whilst unemployed (possibly through careful construction of the Treaty concept of exercise of treaty rights). In France there is talk of cracking down on “abus”of  social security benefits (the European laws on benefits are very much more flexible than those on free movement).

This is more than just a difference of opinion. Imposing a cap in the way suggested would require a change to the Treaty and this is impossible without unanimity. French PM has stated unequivocally that he would not support such a change. And others may express the same view (if asked).

Ourtgoing European Commission president José Manuel Barroso stated an arbitrary cap on immigration into Britain will never be accepted by the European Union…  it would give rise to first and second class citizens within the EU and would not be agreed by member states.

So, what are the Torys on about? Did they forget about the Treaty obligation? Do they expect the rest of Europe to follow its iead? Do they need to consult their own immigration lawyers, or is this just another “great deceit”, a cheap ploy to win naive political support?

thanks id iom
thanks id iom

This immigration blog post: Immigration Lawyer Jeremy Chipperfield, practising from the chambers of Michael Mansfield QC, Chancery Lane, also writes at Immigration Barrister website www.iBarristersChambers.com

Judges Thwart UK Government’s Attempts to Make British Second Class Citizens – Surinder Singh Applied to Extended Family

European Union law facilitates the free movement of its citizens within its borders, allowing European Treaty  rights to be exercised anywhere in that area. Being no great fan of Europe, foreigners, or of free movement into UK borders,  UK governments have not always been keen to play the Euro game.

Consequently, UK domestic law intended to give effect to these European principles has tended to be mean and minimalistic; draftspersons have strained the meaning of words and principles almost to breaking point in order to minimise the number of foreigners allowed to this Green and Pleasant Land. (And they accuse immigration barristers of being devious and cunning!)

Surinder Singh – EU rights extended to cover family members of British citizens

A peculiar result was that,  whilst  citizens from other EU states, working in the UK, could (under EU law) bring their 3rd country spouses  to the UK, British citizens could not do the same. The argument was a technical one to do with construction of the words used in the EU Treaty (rather than its spirit or intention). It was a mean and silly point and the UK was taken to the EU Court of Justice over it and then forced to change the Regulations.

If you want the detail, have a look at the case of Surinder Singh.

Following the judgement in Surinder Singh, the UK again made minimal changes, declining to extend the principle to  give UK citizens  the full rights available to non-UK Europeans working in the UK.

One result was this: under EU law, a worker who wanted to bring her unmarried 3rd-country partner to live with her in the UK could do so- as long as that worker was not British! If she was British, argued the Home Office, she was in the UK under UK law, not EU law (and I can do what I want with my own subjects, so there!).

Some British citizens felt this was an unfair (and bizarre) situation.

But the Home Office stuck to its guns.

Once again, the matter has come before the courts.

Kamila Santos Campelo Cain – Surinder principles applied to extended family

In a determination promulgated on 17-Oct-14 (unreported at the time of writing), the Upper Tribunal (Immigration and Asylum Chamber), Mr Haddon-Cave, J, and Mr Kopieczek considered the question whether an unmarried partner is entitled to the benefit of the decision of Surinder Singh [1992] EUECJ C-370/90 … and the extent to which a third country national family member of such a British citizen  is entitled to reside in the UK under EC law. (Kamila Santos Campelo Cain v Secretary of State for the Home Department IA/40868/2013).

The first instance judge had allowed an appeal against the Home Office’s decision to refuse a residence card to the Brazilian national wife of a British citizen returning worker. There had been no dispute that the relationship was genuine and enduring or that the family (including the couple’s 2 children) had lived together in other EU state’s whilst the partner had worked there.

Instead of accepting the judgement and issuing the card, the Home Office appealed on the basis that the EEA Regulations (i.e. the UK law) didn’t cover extended families.

Actually, as the Upper Tier noted, the judge had “manifestly not made this mistake”- in fact, noting the Regulations didn’t cover the situation, he had applied the Directive directly (i.e. European law).

Although the Home Office’s Grounds of Appeal were flawed, they were granted permission to appeal; after noting the same the tribunal went on to consider the wider merits of the case.

Immigration barristers Jan Doerfel and Jeremy Chipperfield argued that the effect of the Surinder Singh judgement was that British citizens exercising treaty rights should, on their return to the UK, be treated no less favourably than any other European nationals- and this means the EU rights cover extended family as it does with other EU nationals.

The effect of the domestic Regulations was unfairly to discriminate against British nationals.

The Upper Tribunal noted: notwithstanding that Surinder Singh… concerns family members as defined by the Directive, we cannot see any distinction in principle between [it] and the case of the appellant before us. In our judgement, the exercise of the right of free movement by an EEA national is as likely to be adversely affected by the inability of a durable partner to reside with the EEA national in the host State, as it would be were his or her spouse to be denied residence status. … we do consider that the Surinder Singh principle does extend to persons such as the appellant who are in a durable relationship… 

I will report the Home Office response (if any) in this blog.

immigration ADVICE
Jan Doerfel – Immigration Barrister
Screen Shot 2014-10-21 at 21.03.27
thanks EddyVann, EuroMann

This immigration blog post: Immigration Lawyer Jeremy Chipperfield, practising from the chambers of Michael Mansfield QC, Chancery Lane, also writes at Immigration Barrister website www.iBarristersChambers.com

Coup de Grâce Imminent? Immigration, Visas and a Ticket to No 10

Boris enters the ring for the third time, carrying a small red cape. He stares Cameron in they eye, taunting him with the cape and goading him to react. Under the cloth, he grips his weapon- the immigration debate.

Weakened by the humiliation of last week’s by-elections  and the prospect of more of the same from Rochester on November 20th, the Tory leadership was already hurting. Then, still bruised from the  UKip defections, and amidst dissatisfied murmuring from his once loyal audience, David Cameron has had to endure a vicious, barbed attack from behind- from those whom he might have hoped he could trust.

Despite Boris’ faintly ridiculous presentation (that well-crafted, charismatic Façade) this is a serious matter and London’s Mayor has mortal intent. Last week he told us (via David Marr) that the Tory manifesto pledge to cut immigration by 100,000 was a “great deception”. Now he he informs us via The Telegraph that Cameron’s UK immigration system is “out of control” and that Britain has become a “magnet for the hordes at Calais”.

With a flourish, he shows his superiority over his poor dumb opponent and reveals the simplicity of the dilemma it faces:- We can get our traditional Tory voters back, he says, if we just impose quotas for EU migration. Olé!

[Immigration barrister note: Yea, but:  there is no legal way, within the EU, to impose quotas on community citizens entering the UK].

The practicalities are unimportant. Because politics is about getting power and power is about getting votes, and votes can be got by the flamboyant actions, and overblown promises of larger-than-life personalities. By the time the lies and consequences are revealed- well, its too late. The careers of the more thoughtful (and principled?) discussants will lie broken and defeated, alongside the promises of the moment.

Whilst there is nothing surprising here, what is interesting is the marked increase in tempo- a dual attempt to stir the crowd generally into a frenzy of immigration hatred, and Tory Supporters in particular, into intolerable feelings of discontent with their current leadership. One thing is surely clear- Boris smells blood, and senses a leadership competition coming soon.

Love and Marriage; Horse and Carriage; “Immigrant” and “Illegal”; “Asylum-seeker” and “failed”; Politicians and unprincipled, power-hungry egotists.

Cruel Bullfight Barbaric primitive
Photo: thanks Mait Jüriado

This immigration blog post: Immigration Lawyer Jeremy Chipperfield, practising from the chambers of Michael Mansfield QC, Chancery Lane, also writes at Immigration Barrister website www.iBarristersChambers.com

Labour Supporters Want EU Referendum

A majority of labour supporters (who express a preference) support a referendum on Britain’s membership of the EU, says British Future survey. 45% expressed support whilst 36% are against it.

This will put even more pressure on Mliband in relation to Labour’s position on a referendum in the run up to next year’s general election.

46% of Labour supporters agreed that politicians who were opposed to such a referendum (the party’s stance) were against it because they believed it would result in changes they didn’t want to see.

Which makes you wonder about democracy.

Immigration Lawyer Jeremy Chipperfield, practising from the chambers of Michael Mansfield QC, Chancery Lane, also writes at Immigration Barrister website iBarristersChambers

Immigration – Number 1 Issue

The Economist/Ipsos MORI August 2014 Issues Index (click here) finds Race and Immigration to be the single most important issue facing Britain for the third month in a row. 38% of respondents cited it when asked to identify the “most or other important issues facing Britain today”. Then followed the Economy (32%) then Unemployment and the NHS (26% each).

This will maintain the pressure on vote-hungry politicians to polarise further and will prompt some individuals to adopt more hardline positions. As if that were necessary.

Listen out for threatened reductions in UK visas, more talk of restriction on free movement and exercise of EU treaty rights, and to make all of this appear moderate, more venomous soundbites aimed at  targets best calculated to stir up hatred- “foreign criminals” and “preachers of hate”, perhaps?

Immigration Lawyer Jeremy Chipperfield, practising from the chambers of Michael Mansfield QC, Chancery Lane, also writes at Immigration Barrister website iBarristersChambers