ࡱ> 463Y (bjbjWW 4==$]"""""""66666 B6o bbbbbbbb4 6 6 6 6 6 6 $o c Z "bbbbbZ t""bbbtttb"b"b4 66""""b4 tt4 ""4 bV 𻿦66z4 European Legal Action: Family rights defended by European Court In the midst of so much bad news about the direction of immigration policy, it is pleasing to report that the European Court of Justice in Luxembourg has recorded a number of judgements in recent months which have shown that at least in some parts of the European Union's institutions a principled defence of family rights is being maintained. The Carpenter case In the case of Mary Carpenter, (Case C-60/00 - 11 July 2002) the UK government was attempting to enforce the deportation of a Filipina national married to a British citizen. Her husband had a business selling advertising space in medical and scientific periodicals and offering various administrative and publishing services to the editors of those journals. The business was established in the United Kingdom, as was some of its customers, but a significant proportion of the business was conducted with advertisers established in other Member States. MrCarpenter travelled to those Member States for the purposes of his business. The issue that was before the Court was whether this element of exercise of free movement rights on the part of Mr Carpenter was sufficient to establish the position of his wife as the spouse of a EU national who was exercising a free movement right. The Court looked at this issue by considering the Article 8 'respect for family life' provisions of the European Convention on Human Rights and how this interacted with family reunion rights associated with the freedom of movement of EU nationals. It accepted that if Mrs Carpenter were to be deported, and Mr Carpenter obliged to secure his family life with her in the Philippines, then his activity as a service provider in the EU would be obstructed. It ruled that the decision to deport Mrs Carpenter therefore constituted an infringement of EU rights which was not proportionate to the end pursued (i.e. the protection of public order and security). This ruling potentially adds a great deal to the Surinder Singh-type cases, with the significant new element being the fact that, in the case of service providers, the family does not actually need to establish itself in another member state to acquire EU family rights. This will provide important new arguments for families fight against removal where the British citizen partner's business involves the provision of services in other EU member states. The MRAX case and Family permits UK policy says that that the family of an EU national who is resident in Britain is required to obtain a special type of visa - a 'EEA family permit' - before they can enter the country. Non- EU national family members who arrive without such a visa run the risk of being refused at the port and removed from the country. The reasonableness of this approach was looked at by the ECJ in the case of MRAX v. Belgian State (Case C-459/99, 25 July 2002). MRAX, an anti-racist campaign group, complained to the Court that regulations introduced by the Belgian government requiring the family members of EU nationals to be in possession of the Belgian equivalent of an EEA family permit when they apply for residence documents inside the country. MRAX argued that this would deprive significant numbers of people of the papers they need for practical reasons when living in the country. The Court essentially agreed with MRAX on this issue. In its judgement it ruled that: a Member State may neither refuse to issue a residence permit to a third country national who is married to a national of a Member State and entered the territory of that Member State lawfully, nor issue an order expelling him from the territory, on the sole ground that his visa expired before he applied for a residence permit. It similarly ruled that a traveller could not be expelled solely on the grounds that if, on arrival in the member state, he/she did not have a visa allowing entry as a family member of an EEA national exercising a free movement right. As a consequence of this ruling it seems clear that the Home Office will have to modify the provisions of its EEA immigration regulations and its practice instructions to immigration and Home Office officials, which imply that removal may be directed in the case of family members who apply for either leave to enter or a EEA residence document if they had not previously been issued with an EEA family permit. Children receiving education in the UK The ECJ has ruled on previous occasions on the rights of non-EEA family members of EEA nationals exercsing rights in a second member state on the breakdown of a relationship and the separation of husband and wife. As far back as 1984 the Court had ruled in the case of Diatta (Case 267/83) that in such circumstances the non-EEA family members could remain in the member state, providing the EEA national continued to exercise EU rights in that state, and the couple did not divorce. In the case of Baumbast (C-413/99 - 17 September 2002) the Court considered the situation when the EEA national had ceased to exercise EU rights in the member state in which his wife and children resided. Would the national authorities then by justified in curtailing the residence rights of the family members and requiring them to leave the country also? In this case the Court looked at the EU regulation which gave rise to the rights of workers and their family in EU member states, which is Council Regulation 1612/68. It examined in particular Article 12 of this regulation, which states: The children of a national of a Member State who is or has been employed in the territory of another Member State shall be admitted to that State's general educational, apprenticeship and vocational training courses under the same conditions as the nationals of that State, if such children are residing in its territory. Member States shall encourage all efforts to enable such children to attend these courses under the best possible conditions. The Baumbast children were all attending local state schools at the time their father left the UK, and because of this the Court ruled that they were "entitled to reside there in order to attend general educational courses there, pursuant to Article 12 of Regulation (EEC) No 1612/68". It underscored this point by saying that: The fact that the parents of the children concerned have meanwhile divorced, the fact that only one parent is a citizen of the Union and that parent has ceased to be a migrant worker in the host Member State and the fact that the children are not themselves citizens of the Union are irrelevant in this regard. Further, in order that the right of the children to continue their education might be realised in practical terms, the Court set out: that provision must be interpreted as entitling the parent who is the primary carer of those children, irrespective of his nationality, to reside with them in order to facilitate the exercise of that right notwithstanding the fact that the parents have meanwhile divorced or that the parent who has the status of citizen of the European Union has ceased to be a migrant worker in the host Member State. The effect of this ruling has been to establish the right of a non-EU national parent or carer to remain with the children under his/her care. if those children are receiving rights to education or vocational training pursuant to EU law provision. The Givane case: right to remain after the death of an EU national worker One case, however, has gone against the progressive trend established by Carpenter, MRAX, and Baumbast. This is the case of Givane, (Case C-257/00 - 9 January 2003). This case concerned a Portuguese national who was married to an Indian wife and their three Indian national children. Mr Givane had lived in the UK from 15 April 1992 until 10 April 1995. He then returned to his wife and children in India, and remained with them for 10 months. He returned to the UK on 16 February 1996, accompanied by his wife and their children. On 11 November 1997 he died as a result of kidney failure and liver disease. His wife and children then applied for a 'permanent residence' status in the UK, relying on the provisions of EU regulation EEC/1251/70, which contains provisions at Article 3(2) for the residence status of the surviving members of an EU national worker's family on his decease. The condition attached to this right is that the EU national should have resided in the country for a continuous period of two years immediately prior to his/her death. The Court held that the Secretary of State was justified in viewing the 10 month break in Mr Givane's residence, when her returned to India between April 1995 and February 1996, as curtailing the rights of the family under regulation EEC/1251/70. The Secretary of State was therefore within his rights to require the family to leave the country. Despite the disappointing decision in this final case, the role of the Court in deciding family rights remains, on the whole, positive. The implications of the Carpenter, MRAX and Baumbast judgements will need to be closely considered in coming months by legal advisors and anti-deportation campaign activists working with families facing difficulties with the immigration authorities in order the ensure that the rights of these families are properly secured. 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