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Lounes and dual nationality

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EHAP
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My case has been adjourned because of the decision in Lounes but the DWP is now asking for appeal to be stayed further based on Zekri case CO/1540/2015. I cannot find this case and do not understand the relevance of it for my case.
Anybody come across Zekri case CO/1540/2015?

     
ClairemHodgson
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Elliot Kent - 15 March 2018 10:55 AM

Is it even possible to appeal a Grand Chamber decision?

no.  there is no where for the government to appeal to!

     
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ClairemHodgson - 03 April 2018 12:00 PM
Elliot Kent - 15 March 2018 10:55 AM

Is it even possible to appeal a Grand Chamber decision?

no.  there is no where for the government to appeal to!

True. But the post above suggests not that the government is appealing - rather that the “Zekri case CO/1540/2015” might affect the interpretation of Lounes. Which is just about conceivable, as it was about the granting of a residence card, rather than the specific issue of the family members’ of dual nationals right to access the social security system in the host member state.

That said, I cannot see any other way that Lounes can be interpreted and a search in EUR-Lex for “Zekri case CO/1540/2015” and variations thereof yields nothing.

     
Elliot Kent
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“CO/1540/2015” sounds like a UT file number - although I’m not sure I’ve seen a “CO” prefix before.

If the DWP are asking for a further stay on the basis of this case then there is surely a need to provide the Tribunal with enough detail to figure out why the case is relevant. If they can’t do that, then why would the Tribunal give them a stay? You’re entitled to a copy of the application.

     
EHAP
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I asked the tribunal to direct the DWP to explain how Zekri case is relevant and to provide the copy of Zekri decision.

However if any of you come across of the Zekri case please let me know.

     
Paul_Treloar_AgeUK
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EHAP - 03 April 2018 01:50 PM

I asked the tribunal to direct the DWP to explain how Zekri case is relevant and to provide the copy of Zekri decision.

However if any of you come across of the Zekri case please let me know.

If you do find out more from DWP, please do let me know, so I can advise our Bulgarian couple. Thanks.

     
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I currently have an application with the UT where the FtT’s failure to consider Lounes is the main error of law. If this leads to me discovering anything regarding this Zekri business, I’ll let you know*.

* It’s just possible it won’t.. Client was unrepresented at FtT and only instructed us afterward. When refusing us permission to appeal, the FtT conceded we were right about Lounes but said it had done enough fact finding to determine the client was not dependent on her dual-national family member. I don’t think it did. But it does mean that whether we get leave from the UT is likely to turn on the dependency issue rather than Lounes….

     
Paul_Treloar_AgeUK
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We’ve now had a response, as follows:

On 14 November 2017 the Court of Justice of the European Union considered the referral from the High Court for a primary ruling in the case of ‘Toufik Lounes’ who is a third country national (non-EEA or British citizen), who wishes to derive family rights as the family member of a dual British/EEA national. The Court of Justice found that:

* A dual national who holds the citizenship of the host member state, does not have any rights under Directive 2004/38/EC and
* The third country national is eligible for a derived right to reside under Article 21(1) of the Treaty on the Functioning of the European Union

While the Court of Justice of the European Union of the European Union [sic] has made the primary ruling that was requested by the High Court, the High Court has not yet made their final decision in the case of ‘Toufik Lounes’. The law therefore has not been changed and has to be implemented as it stands by the Decision Maker acting on behalf of the Secretary of State. It is understood that the High Court are listed to hear the ‘Toufik Lounes’ [sic] during April 2016, however their final decision may not be promulgated until a future date.

As a consequence, they’re continuing to rely on the fact that the daughter of the couple in question, as a British citizen, does not have rights under the Directive 2004/38/EC as confirmed by Regulation 2 of the Immigration (EEA) Regulations 2016 and consequently they cannot derive a right to reside from her.

Isn’t this pure and simple a delaying tactic essentially?

     
Elliot Kent
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[edited for flippancy]

The ECJ made a decision on a point of EU law. That is binding directly on UK authorities, and is not dependent on the High Court “changing the law” - the High Court has not been asked to, and cannot, “change the law”. All it can do is apply the ECJ decision to the facts of the Lounes case.

The actual facts of the Lounes case are irrelevant so far as your client is concerned - all that matters are the principles established by the ECJ. You don’t need the High Court to tell you what those principles are because the ECJ already did.

Now if there was some legitimate ambiguity in the ECJ decision and the Lounes case in the High Court might assist in resolving that ambiguity (a la the SFF decision following the St Prix decision which referred to a “reasonable period” determined by national law) then maybe there would be some merit in that position. But that really doesn’t seem to be the case.

See also: http://www.bailii.org/uk/cases/UKAITUR/2018/EA001052016.html
In which the Upper Tribunal (IAC) relies on the ECJ decision directly without waiting for the High Court decision.

      [ Edited: 5 Apr 2018 at 10:55 am by Elliot Kent ]
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I think it is.

I cannot think of a case where the Supreme Court has referred questions to the ECJ and then, the ECJ having given its ruling, the Supreme Court (or previously House of Lords) has gone on to reject that ruling - or where the Secretary of State has even argued that it should do so*.

Generally what happens is that the government legislates at this point in order to avoid the SC having to tell it to do so.

* - I’d be demanding that they spit or cough - i.e. if you’re going to be arguing that the SC should not apply Lounes, you need to say so and let us know the basis on which you’re going to be arguing this.

Also see this link - and note in particular the section at the bottom on references to the ECJ - from the horse’s mouth.

https://www.supremecourt.uk/about/the-supreme-court-and-europe.html

 

     
Paul_Treloar_AgeUK
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Thanks both, that’s what I thought. Appeal here we come…..

     
EHAP
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Hi Just an update about my case

We had second hearing (after 10 months) and appeal was successful- the judge accepted that my client is dependant family member of her daughter (who has both Polish and British nationality).

The DWP did not provide copy of Zekri case and they did not offer coherent explanation as how this is relevant to our case. However some information were provided:
- Zekri case is a Home Office case waiting for Upper Tribunal hearing- date of expected hearing not provided
- the DWP rep informed that Zekri case concerned people who become British citizens before their country joined EU and it was not relevant in my case

We will probably hear about Zekri some time in the future.

 

     
ClairemHodgson
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EHAP - 06 September 2018 09:19 AM

- Zekri case is a Home Office case waiting for Upper Tribunal hearing- date of expected hearing not provided

 

the implication being, therefore, that it is an immigration case, not a benefits case .....

the only “zekri” produced by google in the uk is the first name of one of the couple convicted and jailed for abusing their maid - i wonder if it’s a immigration decision about the poor maid?

in the states, zekri is the first name of a man who’se wife’s immigration case got stuck for 18 years….

 

     
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In AS v Secretary of State for Work and Pensions (UC): [2018] UKUT 260 (AAC) which was published yesterday, Judge Poynter has said that it is arguable that Lounes applies equally to the dependant EEA (i.e. non-third country) family members of dual nationals - see paragraphs 31 - 36. He did not say anything more definite, I imagine, because in that particular case it remains to be seen whether the parents are in fact dual nationals or solely UK citizens. Link here; https://assets.publishing.service.gov.uk/media/5b8e42dee5274a0be71dfb2e/CUC_1974_2017-00.pdf

My case on the issue at the UT proceeds. It should answer the question definitively.

     
Elliot Kent
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This must be Zekri surely - see para 2 and the subject matter:

http://www.bailii.org/uk/cases/UKUT/IAC/2018/273.html

It’s not awaiting hearing - it was decided 2 months ago.

      [ Edited: 6 Sep 2018 at 06:12 pm by Elliot Kent ]