MK (Accession, effect on asylum related appeals) Bulgaria CG  UKAIT 00004
ASYLUM AND IMMIGRATION TRIBUNAL
Date of hearing: 5 January 2007
Date Determination notified: 17 January 2007
SENIOR IMMIGRATION JUDGE STOREY
|Secretary of State for the Home Department||RESPONDENT|
For the appellant: Mr Ogunnubi of TM Legal Services
For the respondent: Mr Parkinson, Home Office Presenting Officer
DETERMINATION AND REASONS
From 1 January 2007 nationals of Bulgaria and Romania became EEA nationals. This has major consequences for any pending asylum-related appeals by such persons. If their appeal relates to an immigration decision made before 1 January 2007 – and it has not been withdrawn - it must be allowed, since removal of EEA nationals is unlawful except where public policy, health or security reasons require otherwise. (The only exception to this arises in respect of deportation decisions governed by regulation 8(2) of the Accession (Immigration and Worker Authorisation) Regulations 2006.)
Reported decisions on the current AIT list of Country Guideline cases relating to countries which have since acceded to the EU no longer afford current guidance. It is appropriate, therefore, that they be removed. It may be in an unusual case raising issues for example of chain refoulement, that there will still be a role for country guidance cases dealing with member States of the EU, but clearly none of the existing cases dealing with the accession member States fall into that category.
" Freedom of movement for workers
(1)The Secretary of State may by regulations make provision concerning –
(a) The entitlement of a national of an acceding State to enter or reside in the United Kingdom as a worker;
(b) Any matter ancillary to that entitlement."
"(1) Where before 1 January 2007 directions have been given for the removal of a Bulgarian or Romanian national or the family member of such a national under paragraphs 8 to 10A of Schedule 2 to the 1971 Act or section 10 of the 1999 Act, those directions shall cease to have effect on and after that date.
(2) Where before 1 January 2007 the Secretary of State has made a decision to make a deportation order against a Bulgarian or Romanian national or the family member of such a national under section 5(1) of the 1971 Act –
(a) that decision shall, on and after 1 January 2007, be treated as if it were a decision under regulation 19(3)(b) of the 2006 Regulations[the Immigration (European Economic Area) Regulations 2006] ; and
(b) any appeal against that decision, or against the refusal of the Secretary of State to revoke the deportation order, made under section 63 of the 1999 Act or section 82(2)(j) or (k) of the 2002 Act before 1 January 2007, shall, on or after that date, be treated as if it had been made under regulation 26 of the 2006 Regulations.
(3) In this regulation-
(a) "the 1999 Act" means the Immigration and Asylum Act 1999;
(b) "the 2002 Act" means the Nationality, Immigration and Asylum Act 2002;
(c) any reference to the family member of a Bulgarian or Romanian national is a reference to a person who on 1 January 2007 acquires a right to reside in the United Kingdom under the 2006 Regulations as the family member of a Bulgarian or Romanian national."
"(a) a member State, other than the United Kingdom;
(b)Norway, Iceland or Liechenstein; or
"(1) An EEA national is entitled to reside in the United Kingdom for a period not exceeding 3 months beginning on the date on which he is admitted to the United Kingdom provided that he holds a valid national identity card or passport issued by an EEA state.
(2) A family member of an EEA national residing in the United Kingdom under paragraph (1) who is not himself an EEA national is entitled to reside in the United Kingdom provided that he holds a valid passport.
(a) this regulation is subject to regulation 19(3)(b); and
(b) an EEA national or his family member who becomes an unreasonable burden on the social assistance of the United Kingdom shall cease to have the right to reside under this regulation."
The appellant's case
"The SSHD confirms that it is his policy as of 1 January 2007, that nationals of Romania and Bulgaria will only be removed on grounds of public policy, public security or public health."
"It is emphasised that any EEA national has an unfettered right to reside in the UK for up to three months without exercising treaty rights".
(We take the latter to be a reference to regulation 13 of the 2006 EEA Regulations).
"a decision that a person is to be removed from the United Kingdom by way of directions under section 10(1)(a), (b) or (c) of the Immigration and Asylum Act 1999 (removal of persons unlawfully in United Kingdom)".
"(h) a decision that an illegal entrant is too be removed from the United Kingdom by way of directions under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971 (control on entry: removal).
(i) a decision that a person is to be removed from the United Kingdom by way of directions given by virtue of paragraph 10A of that Schedule (family)".
DR H H Storey (Senior Immigration Judge)
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