Colleagues over at freemovement.org have kindly published my blog post on the Upper Tribunal’s recent reported decision in MS (British citizenship; EEA appeals) Belgium [2019] UKUT 356 (IAC). I acted for the Claimant, instructed by Duncan Lewis.

MS concerned the deportation of an EEA national who had spent his childhood in the UK. In the decision, a Presidential panel of the Upper Tribunal gives guidance on:

  1. the relevance of a past entitlement to register as a British citizen in human rights appeals; and
  2. whether EU nationals (such as care leavers) who have spent their childhoods in the UK may be considered to have been ‘lawfully resident’ here for human rights purposes, notwithstanding a failure to comply with free movement rules.

The second point is likely to be relevant to EU children’s rights in the event of Brexit.

In the article, I go through the key points in the case and then make these observations about its impact:

This is a significant step forward for the protection of EU nationals who have spent their childhood in the UK but have no official Home Office documentation. Under current government plans, such persons will be treated as unlawful migrants from January 2021 in the event of a “no deal” Brexit.

There are parallels between MS and the types of cases that may become more common in a post-Brexit environment. EU children in care and EU care leavers (such as the appellant) are particularly vulnerable to the risk of becoming undocumented migrants. That vulnerability is expected to have more serious consequences if and when free movement is abolished from January 2021.

For now, MS clarifies that respecting the Article 8 right to private life for EU citizens who have grown up in the UK may require the statutory human rights framework in Part 5A of the 2002 Act to be applied flexibly, taking into account the particular barriers they may have faced in obtaining Home Office documentation through no fault of their own.

You can read the full article here.

Posted by Ben Amunwa

Founder and editor of Lawmostly.com. Ben is a commercial and public law barrister with The 36 Group. He gives expert legal advice on employment, public law and commercial disputes to a wide range of clients.

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