23 December 2016 - UK & EEA Immigration Law Updates from the Legal Centre

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Recent case-law

• Depesme and Kerrou (Judgment) [2016] EUECJ C-401/15 (15 December 2016)

BAILII link: http://www.bailii.org/eu/cases/EUECJ/2016/C40115.html

Ruling (para 65):

Article 45 TFEU and Article 7(2) of Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union must be interpreted as meaning that a child of a frontier worker, who is able to benefit indirectly from the social advantages referred to in the latter provision, such as study finance granted by a Member State to the children of workers pursuing or who have pursued an activity in that Member State, means not only a child who has a child-parent relationship with that worker, but also a child of the spouse or registered partner of that worker, where that worker supports that child. The latter requirement is the result of a factual situation, which it is for the national authorities and, if appropriate, the national courts, to assess, and it is not necessary for them to determine the reasons for that contribution or make a precise estimation of its amount.

So, the Court of Justice considered whether the step child of a frontier worker could benefit from the social and tax advantages enjoyed by workers under EU law, in this case to access student financial assistance in the same way as family members of an EEA national working in exercise of Treaty rights in Luxembourg.

The Court held that the step children of frontier workers could benefit where the worker supports the child, finding that:

-the child of a migrant worker must be interpreted as including the children of their spouse or their recognised partner;
-there is no distinction between family members recognised for workers and those recognised for frontier workers;
-determining if a worker supports the child involves a factual assessment by the national authorities, it may be evidenced by objective factors such as shared household and it is not necessary to determine to consider whether the child could support themselves, the reasons for providing support to the child, or to make a precise estimation of its amount. The

Court also noted that children are presumed to be dependent until the age of 21 years.

JA (child – risk of persecution) Nigeria [2016] UKUT 00560 (IAC)

Tribunals Service link: https://tribunalsdecisions.service.g.../2016-ukut-560

A child can be at risk of persecutory harm contrary to the UN Convention on the Rights of the Child in circumstances where a comparably placed adult would not be at such a risk

Revised Detention Services Order (DSO) 05/2014: Removal of Electronic Tags

Home Office link: https://www.gov.uk/government/upload...onic_Tags_.pdf

The Home Office has published a revised detention services order on the removal of electronic tags, which includes an update on the internal processes to be followed.

> R (on the application of Said Aitjilal) v Secretary of State for the Home Department ((EEA Regulations – deportation - reassessment -regulation 24(5)) [2016] UKUT 00563 (IAC)

Tribunals Service link: https://tribunalsdecisions.service.g.../2016-ukut-563

Neither a decision to make a deportation order nor a notice of intention to make a deportation order triggers the two year period specified in regulation 24(5)* of the EEA Regulations. The two year period begins upon the making of the deportation order itself.

* Regulation 24(5): “Where such a deportation order is made against a person but he is not removed under the order during the two year period beginning on the date on which the order is made, the Secretary of State shall only take action to remove the person under the order after the end of that period if, having assessed whether there has been any material change in circumstances since the deportation order was made, he considers that the removal continues to be justified on the grounds of public policy, public security or public health.”.

R (on the application of ZM and SK) v The London Borough of Croydon (Dental age assessment) [2016] UKUT 00559 (IAC); resource UPDATED

Tribunals Service link: https://tribunalsdecisions.service.g.../2016-ukut-559

The decision in this case has now been published by the Tribunals Service with the above citation and following head note.

Head note

1. Considerable circumspection must always be deployed in responding to a claim that statistical evidence tends to prove a fact about an individual. Statistics may be more useful to decision-makers at the far ends of the scale (where they may be able to show the plausibility or implausibility of a proposition) than in the middle of the scale where they purport to show the likelihood of the correctness of a plausible proposition.

2. When considering statistical evidence it is always necessary to determine whether the population constituting the database from which the statistics are drawn is sufficiently identical to the population from which the individual is drawn.

3. The fact that all teeth are mature in the sense that all have reached Demirjian stage H is a sign of chronological maturity but is not a reliable indicator of whether an individual is more or less than 18 years old. The use of the Demirjian stages below stage H does appear to be more reliable in the prediction of age, particularly in the lower teens.

4. None of the three mandibular maturity markers so far identified appears yet to have attained such acceptance in the scientific community that it can be accepted as a reliable pointer to chronological age in the late teens in males.

5. Dental wear is not a guide to chronological age in the absence of data for a population with similar diet and masticatory habits to those of the person under examination.

6. The decision of the Court of Appeal in London Borough of Croydon v Y should not be read as prohibiting a person from refusing to undergo a dental examination. However, (i) the risk inherent in the exposure to x-rays during the taking of the dental panoramic tomograph is not likely to be a reasonable ground for refusing to allow the tomograph to be made, given the advantages stemming from ascertainment of an individual’s true age, and (ii) despite the reservations expressed herein, analysis of a person’s dental maturity may well have something to add to the process of assessing chronological age.

7. It therefore follows that generally speaking the taking of a dental tomograph should be ordered if a party seeks it, and (because of the process of dental maturity) the earlier the tomograph is taken, the more likely it is to be of assistance.