I would like to comment on the point that the UK fails to issue an equivalent to a ‘Residence Card’ for spouses when it provides them with Further Leave to Remain or Indefinite Leave to Remain – these Visas are not automatically treated as equivalent to ‘Residence Cards’ by other countried despite the fact they provide residence (and the right to residence) in the UK for their duration.

In this omission the UK goverment hinders the free movement of the UK citizen’s Spouse within the EU, which would appear to breach the European Convention on Human Rights under Article 8, Right to Private and Family Life for both the the UK citizen and spouse. The free movement of people within the EU as provided under EU Treaties should apply equally to Spouses of EU/EEA citizens. This is discrimination against the Spouse AND the UK citizen which would appear to also breach Article 14 – the prohibition of Discrimination, as it discrimiates against the UK citizen, in preventing them from enjoying other rights such as those in Article 8.

As pointed out,if my wife had married a citizen of any other EU state she would be entitled to live with her husband (who would be ‘exercising Treaty Rights’) while the same provisions and protections are not extended to myself as a British Citizen. She would also be free to travel with her Spouse to and from Europe without hinderance. As my wife has valid Leave to Remain in the UK she has every right to leave and re-enter the UK, but cannot travel without additional documents such as a Schengen Visa, which should automatically be granted, but not without expense in obtaining one, travelling and time. This is not ‘free movement’ in the spirit of the law, and is a direct product of the UK’s discrimination against it’s own citizens.

I would love to challenge this legally and would be glad of any information on how to go about it. I am already taking the Home Office through the Parliamentary and Health Ombudsman for errors and failures that hurt us immensely, and this continuing difficulty in enjoying Rights we are entitled to under the ECHR is compelling us to take further action against the Home Office for its wilful disregard for EU law.

I am happy to spend some time investigating this issue with the aim of making a complaint and if necessary a legal challenge -it is my Right after all – ECHR Article 13: Effictive Remedy – so why not try at least?!

Any more important, shouldn’t family members of a UK citizen have the same right of free movement within the EU as their EU counterparts?

Can anyone give some advice? Thanks a lot!

http://www.ait.gov.uk/Public/Upload/j2054/00078_ukait_2007_st_others_India.doc

Tribunal completely ignored the EU Directive. According to the established case law of the European Court of Justice, where a directly applicable provision of a Directive contravenes national law, national courts are under an obligation to set aside the offending provision of national law and uphold the provision of the Directive.

Does any one knows that these are issues are pending before the Courts. Please mention in this forum.

The below link is the judgement given by UK tribunal on 21.09.2005. based on EEA Regulation 2000.

There is no condition of prior residence in an EU member state before coming to UK in the below judgement. Please see the below mentioned link.

http://www.ait.gov.uk/Public/Upload/j1786/00132_ukait_2005_ls_sri_lanka.doc

But while giving judgement based on EEA Regulation 2006, they adopted condition of prior residence in an EU member state before coming to UK. Please refer the below attachment.

http://www.ait.gov.uk/Public/Upload/j2045/00074_ukait_2007_ak_sri_lanka.doc

As a result, UK breaches the Directive 2004/38/EC and Jia Case C-1/05 judgement in which both of them have precedent effect.

http://www.gherson.com/articles/jia-in-the-european-court-of-justice-analysis

The above link is the Analysis of Jia Case in the European Court of Justice commented by Gherson Solictors Firm.

The above some of the points is from Professor Hans Petter Graver, ARENA on the topic National Implementation of EU Law and the Shaping of European Administrative Policy.

http://www.arena.uio.no/events/Conference2002/documents/Graver.doc

2. The story of developing community rights for individuals has been retold many times. It started carefully in determining relations between community institutions and their staff, and has presently culminated in the Charter of fundamental rights. (Agustin José Menéndéz, Chartering Europe:The Charter of Fundamental Rightsof the European Union, ARENA WP 01/13). There is no call to retell this story here. My intent is only to exhibit two important points in relation to administrative policy. The first point is that granting rights to individuals is an important part of baselining standards for public administration in the union and in the member states, and thus forms part of administrative policy and the requirements towards public administration. Taken together, individual rights form a body of administrative law relating to administrative procedure and standards for public administration. (The implications of the development of principles of administrative law for the shaping of an European administrative policy is examined in European Principles for Public Administration, SIGMA Papers No 27, OECD 1998) The second is that the development of individual rights has not taken place as the result of a comprehensive policy of rights or of public administration. Rather we can se the development as a result of separate developments within the institutions and policies of the EU.

3. The lack of an administrative code or a body of general rules applicable to administrative practices of the community has led the Court of Justice to develop a protection of individual rights based on general principles of administrative law.(The main work on describing the emerging general procedural and substantial principles of administrative law emerging from community law is still Jürgen Schwarze, Europäisches Verwaltungsrecht, Nomos, Baden-Baden, 1988. English version: European Administrative Law, London, 1992.) Initially, such rights were developed in the context of community administration such as staff cases involving the rights of community employees (See Joined cases 7/56, 3/57 to 7/57 Algera et.al. v. the European Coal and Steel Community ECR English Special Edition 1957 p. 39.) and competition law involving the right of private undertakings.( Case 17/74 Transocean Marine Paint Association v Commission, [1974] ECR p. 1063.) Soon, community law also against national administrations when applying and enforcing community legal rules required individual rights in administrative proceedings. (Case 44/79 Liselotte Hauer v Land Rheinland-Pfalz [1979] ECR p. 3727.)

4. The Court of Justice has another strand of cases developing individual rights in administrative proceedings in conjunction with the freedoms of the EC-treaty. These freedoms i.e. free movement of goods, services, people, and capital, mean that national public administrations of the Member States, as key elements for ensuring and implementing them, have to work in a way that renders effective the implementation of those Treaties in all their respects. Protection of the right to free movement entails for instance the obligation to give reasons for individual restrictions of such a right and the right to legal review,(Case 222/86 Unectef v Georges Heylens and others [1987] ECR p. 4097) the right to a timely decision ( Case 42/82 R Commission v France [1982] ECR p. 841.) and the principle of proportionality. In this context could also be mentioned the principle that the State is liable for loss and damage caused to individuals as a result of breaches of Community law that has been developed by the Court of Justice. (Judgments in Joined cases C-6/90 and C-9/90 Francovich and Others [1991] ECR p. I-5357; Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur and Factortame [1996] ECR p. I-1029, Case C-392/93 The Queen v HM Treasury ex parte British Telecommunications [1996] ECR p. I-1631; Case C-5/94 Hedley Lomas [1996] ECR p. I-2553; Joined Cases C-178/94, C-179/94, C-188/94, C-189/94 and C-190/94 Dillenkofer and Others [1996] ECR p.I-4845.) To a large extent, the principle of state liability serves to protect individuals against administrative encroachments of community rights. The principle may therefore be said to form part of the substantial body of community administrative law and has its counterpart in Article 288 EC that gives a right to compensation for damages caused by Community institutions and servants.

5. The little that there is of a comprehensive European Union policy of administration is tied to the question of implementation and enforcement of community rules. To this effect, the Council has issued recommendations to the Member States and the Commission, for instance the Council Resolution of 16 June 1994 on the development of administrative cooperation in the implementation and enforcement of Community legislation in the internal market,(O. J. C 179 , 01/07/1994 P. 1 – 3.) Council Resolution of 29 June 1995 on the effective uniform application of Community law and on the penalties applicable for breaches of Community law in the internal market ( O.J. C 188 , 22/07/1995 p. 1 – 3.)