UTIAC 1. The personal scope of the safeguards against expulsion which Article 27 of 2004/38/EC (the ‘Citizens Directive’) affords to ‘family members’ does not include ‘other family members'(OFMs).
2. Hence Exception 3 to s.32(4) and (5) of the UK Borders Act 2007 (which arises where the removal of a foreign criminal from the United Kingdom in pursuance of a deportation order would breach the rights of the foreign criminal under the EU treaties [previously ‘Community treaties’] cannot be invoked by OFMs.
3. However, a person who has been found to be an OFM/extended family member under the Immigration (European Economic Area) Regulations 2006 needs to be considered by the Secretary of State as a person in respect of whom the discretion to issue a residence card under regulation 17 may be exercised.
4. The result of the exercise of that discretion may be that regulations 20-21 apply to the appellant’s removal, and the decision would not be lawful without regard to them.
5. So if consideration has not been given to the exercise of the discretion, the assessment of criteria going to deportation or removal cannot be completed.
Citations:
[2011] UKUT 276 (IAC)
Links:
Jurisdiction:
England and Wales
Immigration
Updated: 15 September 2022; Ref: scu.441718