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The Home Office was wrong! Courts rule in favour of non-EU citizens in the UK

by John Dunn | Nov 15, 2017
  • This is a major victory for immigrants from countries like Australia, South Africa and The United States and Canada (to mention but a few). The European court of justice (ECJ) has ruled a non-EU citizen who is living with an EU citizen in the UK can continue to live and work in the UK when their EU partner becomes a British citizen.
    court-ruling-uk

    Home Office wrongfully denied permanent residency

    In this landmark court case, the European court of justice (ECJ) ruled that the Home Office was wrong in denying permanent residency to the Algerian husband of a British-Spanish citizen.

    The case of García Ormazábal, who is British-Spanish, and her Algerian husband, Toufik Lounes, has been closely followed by expats in the UK as it has huge implications for the communities now living in the UK. Ormazábal moved to the UK in 1996 as a student and has been living and working in the UK since 2004. She naturalised as a British citizen in 2009, but also retained her Spanish citizenship.

    When Ormazábal wanted to bring her husband to the UK, the Home Office argued that that UK immigration laws applied and her husband was not entitled to apply for permanent residency under the EU’s freedom of movement legislation. The case was referred to the European court by the high court in London last year.

    Do you have a question about your partner visa in the UK?

    The victory

    Ormazábal’s lawyer, Parminder Saini, argued that European law of free movement “should, where necessary, safeguard the free movement of families and the lives and ties they develop as they migrate within the union and put down roots”.

    The European court of justice (ECJ) ruled that Ormazábal’s husband did have a derived right to stay in the UK under the freedom of movement law. The ECJ also said that the freedom of movement rules mean that citizens such as Ormazábal, who move to another EU state and acquire citizenship of the country, have the right to build a family in that country. The ruling was a victory and a landmark ruling in European immigration law.

    The impact of the judgement

    The UK high court told the ECJ that it doubted the Home Office’s original decision, which is why it sought direction from the European court in this case. Colin Yeo, an immigration barrister and expert on freedom of movement said that the ruling “is great news for EU citizens who have moved to another European country because it enables them to benefit from sensible EU rules on being joined by family members.”

    Immigration barristers have said that the ruling will have widespread implications for EU citizens wanting to apply for British citizenship, especially if they are married or are considering marriage to a non-EU citizen.

    A Home Office spokesperson has stated that they are reviewing the judgment carefully and are considering its impact. For now, however, they will have to abide by the ECJ’s decision.

    The benefits going forward

    One benefit of this ruling is that applicants may now choose to get EU permanent residency rather than the UK spouse visa. There is a clause in the UK’s domestic law which states that an EU national who is also a British citizen cannot rely on the EU immigration regulations to sponsor family members to come to the UK, but this judgement changes that.

    The EU immigration regulations are more favourable because:

    • You can sponsor a spouse without needing to meet the maintenance requirement
    • You can sponsor children under the age of 21 (instead of 18) to come to the UK
    • You can sponsor children past the age of 21 to come to the UK if they are still dependant on you
    • You can sponsor your parents and grandparents to come to the UK without showing that they are too ill or disabled to look after themselves

    If you need help with your visa in the UK, whether or not you’re in a relationship with an EU citizen, leave a comment below or send us an email on immigration@sableinternational.com.

    We are a professional services company that specialises in cross-border financial and immigration advice and solutions.

    Our teams in the UK, South Africa and Australia can ensure that when you decide to move overseas, invest offshore or expand your business internationally, you’ll do so with the backing of experienced local experts.

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