Aadila, Berthold, Cordelia And Dahhak’s Rights To Leave Belgium, Enter, Reside And Work In The United Kingdom

UK Citizenship, Permanent Residence and the Immigration Rules

1.Examine and explain Aadila, Berthold, Cordelia and Dahhak’s rights to leave Belgium, enter, reside and work in the United Kingdom?

2.Critically determine if the charges for testing can be applied by the United Kingdom authorities to Berthold’s imported skiing helmets and if the registration fee is compatible with EU law?

3.Discuss how Berthold can challenge the adoption of the Regulation in the CJEU through Art 263 TFEU?

1. A person has the right to become a citizen of UK if he or she had been a citizen of EU.  Before the brexit the EU citizens are not required to have any form of visa or documents for the purpose of moving to UK. Any EU national has the right to acquire the right to permanent residence in UK if they have resided in the country for two years. Where such requirements have been fulfilled the person has the right to apply for a permanent residence document. The documents will ensure that the right to live in UK without any conditions permanently. The permanent residence document is not mandatorily required. However, it can use for the purpose of dealing with administrative requirements[1].

In the given situation it has been provided that Aadila is an Iraqi refugee which has been provided with citizenship of Germany in 2010. She has been in a relationship a Belgium citizen and have been living with him since 2011 in Antwerp. They have two children who also live with them namely a daughter who has the age of 6 years and a Dahhak aged 18 years.  In the given situation it is clear that all the members in the family are EU citizens however Dahhak has not got any visa status currently. However he had been living for more than 8 years in Belgium and thus is eligible for citizenship in of Belgium. However as mentioned above a permanent residency can only  be achieved in UK where the person making the application was residing in UK for a period of Five yeas immediately before the citizenship application have been made. In the given situation none of the family members in context have been residing in UK. Thus they are not eligible to get a permanent residency in UK[2].   A leave to enter in the UK is required by a person who does not have a place of adobe in UK or is not a British or EU citizen. The leave is also required when the person is not provided the right to get into UK through 2006 EU provision under paragraph 7.A of the Immigration Rules part 1[3].  The Immigration Regulations 2006 deals with the provisions where EEA nationals can their family can move to UK. The regulations are based on the Directive 2004/38/EC[4]. Through this EEA citizens and their family can stay and work in UK without any permission. A special entry clearance may be required by the family members known as the EEA family permit to enter UK.  The core family members of EEA only include their spouse and children less than 21 years of Age.  Any person who is outside the definition is regarded as an extended family member[5].

EEA Regulations and Extended Family Members

They may include any dependant of the EU citizen and a partner in the EU relationship. No rights are provided to the extended family members through the directives. In the given situation both Aadila and Berthold are the members of EEA countries which are Germany and Belgium respectively. In addition they have a child who is to be regarded as  a core family member and another child who is to be regarded as an extended family member.  In the given situation it has been provided that no right is given to extended family members by the EEA regulations other than right to entry. Thus in the given situation it is clear that although Aadila and Berthold and their six year old have the right to enter and stay in UK. There are other rules in relation to the right of Dahhak. As per regulation 7(3) of the Immigration (European Economic Area) Regulations 2016 there is a four stage consideration process through which right to stay in UK is provided to an extended family member. The first stage consists of status of the EEA sponsor, the second stage includes the relationship with the EEA national, the third stage provides for qualifying conditions and the fourth stage requires extensive examination of personal situation[6]. These conditions as per regulation 8(2), 8(3), 8(4) or 8(5) include that the person must be residing in other county than UK, must be a relative of EEA nation and have to be a member of such person’s household. In the given situation as Dahhak qualifies for all such condition he can be provided the permit under the regulations.

2. In the given situation it has been stated that the business of Berthold is in relation to manufacturing of Skiing helmets. He has been informed by the UK authorities that as he is a seller of Ski helmets he will have to provide a registration fees worth £5 per helmet which would be directed to injury compensation fund for skiers who have got head injuries.  In addition it has been provided that there are no firms in UK at the moment which manufacture Ski helmets but others who manufacture snowboarding helmets. It has been further provided by the UK authorities that the ski helmets have to be tested and the testing charges is that of 5% for each shipment.  A right is provided to persons who are trading within EU to export and import goods in a free manner under the European Free Trade Policy.  This signifies that the government may not restrict the export and import of goods nor prevent trade in any other way. The right to free transit is also provided through the free trade within the EU.  In situation where the products comply with harmonized rules that have the right to be circulated freely within the EU. This means that the government may not restrict the export and import of goods nor prevent trade in any other way. The rules are based on set conditions are have the purpose of protecting the environment, health and public. When the products are non harmonized they would be subjected to national provisions and the principle of mutual recognition may benefit a person in this case.  It has been provided by European Free Trade Policy  that restrictions may be still applicable where the goods may interfere with the interest of the public and specifically where there are grounds in relation to protection of animals or plant, environment, public morality and security and health and human life[7].  It may be demonstrated by the government that the restrictions on free movements are proportionate and justifies. For instance the situation may be related the advance authorization procedures with respect to specific products which pose a genuine threat to human life. In the given situation it is clear that the UK authorities have the right to ensure the public. Even where Berthold is a citizen of a EEA country the UK authorities have the right to impose any restriction based in the principles of public interest and human health protection. In addition it has been provided that the fees which have been imposed is in compliance with EU laws. Thus the test which has been implemented by the UK authorities in relation to the quality of the Skill helmets is legal under the provisions of the Free trade agreement. Where the test is legal then it is the duty of Berthold to provide the fees in relation to the test.

Charges for Testing and UK Free Trade Policy

3. It has been provided through Art 263 TFEU that it is the duty of the Court of Justice of the European Union to review legislative legality in relation to the acts of the council, the acts of the European parliament, European council and European Central Bank for the purpose of producing legal with respect to any their party. The legality of acts, agencies and officers of the union have to be reviewed by the court of they intend to initiate any legal effect with respect to a third party.  For this purpose the court shall have jurisdiction in relation to actions which have been brought by the member states, the commission or the council or the European parliament with respect to non compliance with a mandatory procedural requirement, lack of competence, non compliance with treaties or any law with respect to their applications or in relation to misuse of power.  Jurisdiction is provided under the same condition such as a claim which is initiated by an auditor, Committee of the Regions for protecting own prerogatives or the European Central Bank.

Any legal or natural person with respect to the condition  provided through the above paragraphs can initiate a claim against any action which the person has been subjected to which may cause individual or direct concern to them. In addition a claim can be brought against any regulatory action which may directly concern them and do not have implementing measures. Bodies which set up acts along with agencies and officers of the union may provide for specific arrangements and conditions in relation to actions which have been brought by a legal or natural person against the act initiated by such bodies, agencies and officers which intend to produce legal effects to them[8].

Under this Article the proceeding provided shall be initiated within two months since the measure had been published or had been notified to the claimant or when it actually affected the claimant.  The case of Plaumann & Co v Commission (1963) Case 25/62 was in relation to the application of this regulation.  In this case the plaintiff wanted to import Clementines. However the German authorities wanted to withdraw import custom duties, however the permission had been refused by the European commission. Thus the plaintiff initiated a judicial review in relation to the decision of the commission.  The court held that the review cannot be obtained. The case signifies that any person affected by regulation can seek a judicial review[9].   In the given situation it has been provided that Berthold has been subjected to a regulation. The regulation has a direct effect on him.  The business of Berthold is in relation to manufacturing of Skiing helmets. He has been informed by the UK authorities that as he is a seller of Ski helmets he will have to provide a registration fees worth £5 per helmet which would be directed to injury compensation fund for skiers who have got head injuries.  In addition it has been provided that there are no firms in UK at the moment which manufacture Ski helmets but others who manufacture snowboarding helmets.

It has been further provided by the UK authorities that the ski helmets have to be tested and the testing charges is that of 5% for each shipment. A regulation has been adopted by the Council and European Parliament which prevents manufacturing of goods which are genetically engineered with respect to health and safety issues. However no research has been conducted in relation to the matter.  In the given situation Berthold can apply to the Court of Justice of the European Union to review legislative legality in relation to the acts of the council. This is because the regulation has not been enacted without any research and it directly affects the business of Berthold and it is provided through Art 263 TFEU that Any legal or natural person with respect to the condition provided through the above paragraphs can initiate a claim against any action which the person has been subjected to which may cause individual or direct concern to them. There are significant chances of success which Berthold has in the given situation as the regulation is not in compliance with EU law.

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