EU Children Can Be Lawfully Resident in the UK Without Exercising Treaty Rights

The Upper Tribunal judgment in MS (British citizenship; EEA appeals) Belgium [2019] UKUT 356 (IAC) confirms that certain EU citizen children in the UK can be considered lawfully resident for the purposes of Article 8 of the European Convention on Human Rights, even if they (or their EU citizen parents or carers) have not exercised treaty rights and have no official Home Office documentation.

MS appealed against the Secretary of State’s decision to refuse to revoke a deportation order made against him under the EEA Regulations 2016. He was successful at the First-tier Tribunal. The Secretary of State appealed to the Upper Tribunal where four separate hearings followed in which I represented MS, instructed by Duncan Lewis. The Upper Tribunal allowed the Secretary of State’s error of law appeal in MS (appealable decisions; PTA requirements; anonymity) [2019] UKUT 216 (see my previous write-up here). It decided that MS had no in-country right of appeal against the refusal to revoke the deportation order against him on EU law grounds. Any such appeal had to be pursued from abroad. However, because the Secretary of State’s decision letter dealt with Article 8 as well, the First-tier Tribunal had erred by failing to address MS’s human rights claim. The decision of the First-tier Tribunal was set aside with directions for it to be re-made by the Upper Tribunal.

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