EEA Nationals in prison

[bluecole2]

I thought it might be interesting to discuss this matter hardly talked about and perhaps may be vital for future use.

Accroding to the 'UK Border Force Operations Manual'

An EEA national in prison is not a qualified person on the grounds that he cannot exercise a Treaty right. Therefore any non-EEA family members would not be entitled to admission on the basis that they are a family member of a qualified person.

MY QUESTION ARE AS FOLLOWS;
In the event the prison is self employed (with small- medium sized business) and business still being runned by families/friend and employees and paying taxes and NIC isn't he/she still exercising treaty rights regardless whether short/long time being served?

I believe the business wouldn't/can't be closed since taxes are being paid, I doubt their right to exercise treaty right cease. And if that's the case will such person's family be denial entry at the border?

And finally what about the human right act? Doesn't it have a say in this circumstance? I mean preventing entry or deporting family members can have serious effect on their lives may cause hardship.

[Obie]

Also see  SO (imprisonment breaks continuity of residence)  Nigeria  [2011] UKUT 0.0164 (IAC)
I suspect they might seek to fight it on the basis that the prisoner has no right of resident as he/she is not exercising treaty right, and hence cannot benefit from any business they set up, which is been looked after during their incarceration. I must say it is a very flawed defence, but i think it is the best a good HO counsel can come up with. I am not saying a Presenting Officer, as you will be surprised what comes out of their mouth at the best of times.

[ca.funke]

In the event the prison is self employed (with small- medium sized business) and business still being runned by families/friend and employees and paying taxes and NIC isn't he/she still exercising treaty rights regardless whether short/long time being served?

I´d say once a person "qualifies" for prison, concerned individual, and hence his family-members, can forget about 2004/38/EC.

Article 27
General principles
1. Subject to the provisions of this Chapter, Member States
may restrict the freedom of movement and residence of Union
citizens and their family members, irrespective of nationality,
on grounds of public policy, public security or public health.
These grounds shall not be invoked to serve economic ends.

I believe the business wouldn't/can't be closed since taxes are being paid, I doubt their right to exercise treaty right cease. And if that's the case will such person's family be denial entry at the border?

2004/38/EC doesn´t apply anymore, so it all falls back to national legislation at that point. I believe the person running the business may be deported. If closure of the business is a consequence, than that´d be so...

[fysicus]

Of course it is not possible for a prisoner to be in employment or a jobseeker, but at the very least I don't see why a prisoner cannot claim to be self-sufficient, or a student (e.g. at the Open University). The fact that the government provides free lodging is irrelevant and does not imply he is dependent on public funds.
The blanket statement that a prisoner can not (by definition) exercise Treaty Rights seems untenable to me.
Only when the crime was so severe that deportation on grounds of public security is justified, you can say that a prisoner is not a qualified person.

[zheni]

If, the period in prison is accepted as exercising treaty rights would not you agree that a certain number of people will be 'willing' to spent their time in prison for the purposes of then to acquire PR status.

Just because prisoners have access to education does not mean they are students for the purposes of EEA status-imagine a prisoner submitting application for student registration certificate ...CSI? Sufficient funds? How would they succeed in their application?!

Being self-sufficient again they would need CSI and funds, not relying on public funds.

I think that even if this issue gets to court it would not succeed on the basis that this was clearly not what the regulations intended to provide for.

[fysicus]

I can imagine that a homeless person sometimes prefers being in prison over sleeping rough, but I can absolutely not imagine someone trying to get in for immigration related purposes.

The court has to deal with the law as it is written. If a law is intended for something else (and who has the authority to establish that?), it should have been written differently.

If prisoners cannot exercise treaty rights, it makes their innocent family members suddenly liable to deportation. This is a very severe case of discrimination of EU citizens over British citizens, and such a disproportionate side effect would basically render all prison sentences for EU nationals unlawful.

[naija99]

Any advice would be greatly appreciated. As a daughter of an EEA national i was given 5yrs RC in 2007 valid t 2012. My EEA national sponsor then received a prison sentence in 2011 for 5 years and thus cannot exercise treaty rights.

I have been working and studying for the last 5 years. Is there any way I can now get PR, if so how?