Right of Residence in UK Law

The Court concluded that, looked at in this way, the national legislation created a difference in treatment between resident and non-resident students. A residence condition, such as that required by this legislation, was more easily satisfied by Belgian nationals, who more often than not reside in Belgium, than by nationals of other Member States, whose residence is generally in a Member State other than Belgium.

An extended family member can only be issued with a residence card on the basis of his durable relationship with an EEA national if the Secretary of State has undertaken That has never happened and can only happen after an application for a residence card is made. Merely notifying the Secretary of State that one is in a durable relationship is nowhere near enough either to constitute such extensive examination or to require such examination to be undertaken.

The Directive creates and regulates rights of movement and residence for Union citizens. The expression “resided legally” in article 16 should, in my view, be read consistently with, and in the sense, of preamble 17 of the Directive, that is residence “in compliance with the conditions laid down in this Directive”.

That is why the Directive goes beyond Article 2.2 family members and makes provision, albeit in a different way, for OFMs. I accept Mr Palmer's submission that it is only those OFMs who have been present with the Union citizen in the country from which he has most recently come whose ability or inability to move with him could impact on his exercise of his primary right.

What is being said in this case is quite different. Here, it is said that the parent/carer is entitled to be in the UK and work because only then will the child be self-sufficient and hence establish her EU right of residence.

The overarching question is whether the son would be compelled to leave by reason of his relationship of dependency with his father. The test of compulsion is thus a practical test to be applied to the actual facts and not to a theoretical set of facts. As explained in para 28 of this judgment, on the FTT's findings, the son would be compelled to leave with his father, who was his primary carer. That was sufficient compulsion for the purposes of the Zambrano test.

Lastly, in agreement with what was said by the Upper Tribunal in Vasconcelos, I do not consider that in the case of an offender with no permanent right of residence substantial weight should be given to rehabilitation. I appreciate that all Member States have an interest in reducing criminality, and that deportation merely exports the offender, leaving him free to offend elsewhere.