England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT No: IA/014165/2006]

		Royal Courts of Justice Strand, London, WC2A 2LL
		14th May 2008

Lord Justice Sedley:

1. The appellant, who is a Chinese citizen, had managed to remain illegally in the United Kingdom from his clandestine entry in late 1995 until, he contends, the day in February 2006 when the Home Secretary refused his application for a residence document confirming his right to reside here under EU law. It is his case that the refusal was unlawful because, as the spouse of an EU national who had recently entered the UK from Ireland, he had a legal right to be here with her.
2. The intervening history barely matters. Following his arrest in 1996 the appellant claimed asylum. It took the Home Office until May 2002 to reject the claim and issue removal directions. On appeal the appellant abandoned the asylum claim and sought human rights protection on the basis of his relationship with Nilfer Aksoy, a British citizen with whom he now lived and ran a restaurant.
3. In February 2004 an adjudicator allowed the appeal, but the decision was overset a year later on the ground that it was not possible on the facts found for the appeal to succeed. Ten days after the promulgation of the second determination, on 22 February 2005, the appellant and Nilfer Aksoy married. She then moved to the Republic of Ireland where she found work, leaving the appellant here. About six months later she returned and recommenced work, as it happens for the appellant. It was a few weeks after this, in October 2005, that the appellant applied for a residence document.
4. His appeal against the Home Office's refusal was heard by a tribunal of three legally qualified members, Mr CMG  Ockleton, Deputy President, Designated Immigration Judge Barton and Immigration Judge Easterman. Their unanimous decision was that the appeal failed. Laws LJ on sight of the papers refused permission to appeal on the ground that the AIT's decision was entirely correct. On renewal Maurice Kay and Hooper LJJ stood the application over for hearing on notice by a full court, the appeal to follow if permission was granted. This is the hearing that has now come before us, no point being taken by counsel for the Home Secretary, Tim Eicke, on the appellant's notice being two days out of time.
5. Until Rambert de Mello, the appellant's counsel, rose to his feet it appeared that the case no longer involved an Article 8 claim. Certainly there was no apparent answer to the AIT's conclusion that absent a legal right to be here it was entirely proportionate to expect the appellant to seek entry clearance from abroad. Mr de Mello began his submissions to us by indicating that he wished to keep the Article 8 case open; but in the event we have heard no more of it save to the extent that reliance was placed on the case of Carpenter, to which I will briefly come.
6. The first thing that needs to be said is that we are not concerned with the merits of an immigration history whose unappealing character Mr de Mello has not sought to disguise. But it is going to be relevant to at least one limb of the argument that the appellant has never been lawfully in this country. For the rest the entire argument is about the legal consequences of the very simple history described above. Mr de Mello contends that if an EU national enters a member state (even the state of which she is a citizen) from another member state in order to take employment, her spouse has a right to join her. For the Home Secretary, Mr Eicke contends that the AIT were right to reject the appeal on the ground that the appellant had neither accompanied nor joined his wife here: she had joined him. But he submits further that this is a matter of domestic law untouched by EU law; that a third country national has in any event no derivative right of free movement if he is unlawfully present; and that the material directive does not cover the appellant or his wife.
7. The community legislation with which we are for practical purposes concerned is the Citizens Directive (2004/38/EC), which consolidates and replaces a group of earlier directives and was transposed into UK law by the Immigration (European Economic Area) Regulations 2006. It is common ground that although the material decisions preceded the consolidation, this case can and arguably should be properly treated as governed by the Citizens Directive and the 2006 Regulations. The critical regulation for present purposes is Regulation 9:

"Family members of United Kingdom nationals.

9. -- (1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who is the family member of a United Kingdom national as if the United Kingdom national were an EEA national.

(2) The conditions are that --

(a) the United Kingdom national is residing in an EEA State as a worker or self-employed person or was so residing before returning to the United Kingdom;

and (b) if the family member of the United Kingdom national is his spouse or civil partner, the parties are living together in the EEA State or had entered into the marriage or civil partnership and were living together in that State before the United Kingdom national returned to the United Kingdom."

I omit the final paragraph of Regulation 9. It is to be noted that in the regulations "United Kingdom national" means "a person who falls to be treated as a national of the United Kingdom for the purposes of the Community treaties."

8. In my judgment the critical fact in this case is that the appellant has at no time left the United Kingdom. This has at least two legal consequences. One is that no question arises of his exercising a derivative, or indeed any, freedom of inter-state movement or of establishment. It is his wife alone who, without opposition, has exercised these by going to, and returning from, Ireland. This was the ground on which the AIT dismissed the appeal and I respectfully agree with it.
9. The second consequence is that the appellant's status is, by parity of reasoning, a matter of domestic and not of EU law. Mr de Mello accepts that Regulation 9 only grants EEA nationality rights to the spouse of a UK national who has returned here from another EEA state where they were living together, which is not this case. But he claims a right of residence directly from Article 7(2) of the Directive or failing that from Article 39 of the EC Treaty. The radical argument that Regulation 9 fails properly to transpose Article 7 of the Directive, which is a necessary pre-condition of falling back upon the Directive, is tucked away in paragraph 27 of the appellant's original "Grounds and skeleton argument", a massive document which impermissibly conflates two distinct functions under the rules - to set out in short and crystalline form what is said to have gone wrong below (in other words the grounds) and then to explain with tolerable brevity in a skeleton argument why this is so.
10. Leaving that aside, the content of Article 39 of the EC Treaty is as follows:

"1) Freedom of movement for workers shall be secured within the Community.

2) Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.

11. Article 7 of the Directive begins as follows:

"1) All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:

(a) are workers or self-employed persons in the host Member State…

2) The right of residence provided for in paragraph 1 should extend to family members who are not nationals of a Member State, accompanying or joining the Union citizen in the host Member State, provided that such Union citizen satisfies the conditions referred to in paragraphs 1 (a) (b) or (c)."

12. The meaning of "Union citizen" for the purposes of this Article is set out in Article 2 and reads:

"'Union citizen' means any person having the nationality of a member state".

13. In my opinion Article 39 contains nothing of sufficient specificity to establish the right that the appellant claims in this case. Article 7 of the Directive relates to family members accompanying or joining the EU citizen. The appellant did neither of those things; he stayed put. This is not being merely difficult or technical. The whole purpose of these provisions is to give reality and substance to the rights of workers to move within the EU by enabling them, as of right, to bring their immediate families with them. This is why no viable challenge can be raised, in my judgment, to the transposition contained in Regulation 9. It is to this that it is therefore necessary to turn for the applicable law. But Regulation 9, as I have already said, reflects the policy described above by limiting derivative rights to the inward migration of family units established elsewhere in the EEA. The underlying policy is made plain by Articles 17(1) and 18 of the Treaty and by Article 3 of the Directive:

"Article 17

1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall complement and not replace national citizenship.

2. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby.

Article 18.

1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States subject to the limitations and conditions laid down by this treaty and by the measures adopted to give it effect."

It is to be observed in particular that citizenship of the Union is an artificial construct. There is no such thing as EU nationality; there is only nationality in a member state of the EU which carries derivative rights within the EU itself.

14. This is reinforced by repeated ECJ jurisprudence of which a single example will suffice here. In Minister voor Vreemdelingenzaken en Integratie v Eind. Case C-291/05 the Grand Chamber held, paragraph 44:

"…such a requirement would run counter to the objectives of the community legislature, which has recognised the importance of ensuring protection for the family life of nationals of the Member States in order to eliminate obstacles to the exercise of the fundamental freedoms guaranteed by the Treaty"

citing, among other cases, Carpenter and MRAX, to which I shall come in a moment. There is no freestanding right of family reunion; the right of family reunion is there only to the extent that it gives a substance and reality to the right of free movement. See also the decision of this court in KG (Sri Lanka) v SSHD  [2008] EWCA Civ 13.

15. When in Article 7 the Directive speaks of a right of residence in another member state, it is thus specifically not referring to any right to enter or stay in the state of one's own nationality; that is vouchsafed entirely by domestic law.
16. I would therefore reject Mr de Mello's foundational argument that when the appellant's wife re-entered the United Kingdom from Ireland she was exercising in whole or in part her EU right of free movement. As the Treaty and the Directive both recognise, she had no need of such a right when entering the country of her own nationality. Once this proposition goes, so do the supposed rights that the appellant derives from it.
17. This being so, Mr Eicke is in my judgment justified in contending that there is no EU element to the claim. The appellant is an illegal entrant who has remained in the United Kingdom since 1995. The fact that he has married a UK citizen and thus an EEA national gives him a right in domestic law to seek entry clearance in order to join her but it gives him no derivative European Union rights because he has at no stage sought to accompany or join her here from another EEA state.
18. Before us Mr de Mello has sought to argue that on the wife's return from Ireland the appellant joined her here. Not only does this seem to me to be a misuse of language; it is diametrically contrary to Mr de Mello's written argument that the appellant is entitled to be treated as if he had joined his wife here - to be accorded in the words of the skeleton argument "an equivalent right of residence" - precisely because she has no true right under the Directive or the Treaty. There is a limit to which an advocate can blow hot and cold, and I think that in this respect Mr de Mello has passed it. I do not accept that any such right can be either deduced or constructed by extension or by analogy. Any rights derived by third-country nationals from the prescribed rights of a Union citizen are to be found in the EU's laws or nowhere.
19. This makes it unnecessary to deal with the argument, founded on the decision of the ECJ in SSHD v Akrich [2003] ECR I-9607, that a third country national must be lawfully resident in order to derive free movement rights from those of a spouse; but it can be observed that the distinction Mr de Mello seeks to draw between that case and this is paper thin. The appellant in Akrich had illegally entered the UK and been deported to Ireland where his spouse, a British citizen, was working. He sought entry clearance in order to return without her to the UK. The ECJ held among other things that the individual must be lawfully resident in the EEA state from which he migrates. The appellant, Mr de Mello submits, is by contrast relying on EC rights in the first state he has unlawfully entered. The distinction appears to me to be one without a difference: both situations are examples of an individual trying to take advantage of his own unlawful act in order to regularise his position. The ECJ took its remit to be an explication of its earlier decision in R v IAT et Surinder Singh, ex parte SSHD [1992] ECR 1-4265. It said:

"47. Under the operative part of that judgment, at page 4296, the spouse must enjoy at least the same rights as would be granted to him or her under community law if his or her spouse entered and remained in another member state.

48. The same consequences flow from Article 39 EC. If the national of the member state concerned envisages a return to that member state in order to work there as an employed person consequently where the spouse is a national of a non-member state he must enjoy at least the same rights as would be granted to him by Article 10 of Regulation 1612/68 if his or her spouse entered and resided in another member state".

49. However Regulation 1612/68 covers only freedom of movement within the community. It is silent as to the rights of a national of a non-member state who is the spouse of a citizen of the Union in regard to access to the territory of the community.

50. In order to benefit in a situation such as that at issue in the main proceedings from the rights provided for in Article 10 of Regulation 1612/68 the national of a non-member state who is the spouse of a citizen of the Union must be lawfully resident in a member state when he moves to another member state to which the citizen of the Union is migrating or has migrated."

20. Nothing daunted, Mr de Mello turns to the case of Carpenter [2003] 2 WLR 267. Here the ECJ had to consider the rights of a non-EU overstayer who had married a UK citizen who provided commercial services from the UK to other member states. The ECJ prevented the Home Secretary from deporting her, holding that removal would be a disproportionate interference with the right to respect for family life (Article 8 of the Convention) because of its impact by the removal of her support on the right of her husband to provide services within the EU. This is a different class of case because neither the appellant nor his wife is seeking to provide any cross-border services or to migrate within the EU in order to work. Indeed for reasons I have mentioned it is not in my opinion an Article 8 case at all. So it is not relevant or necessary to embark upon the consequential argument which in that case succeeded under Article 8 but finds no equivalent purchase here. Nor in my judgment is it necessary or relevant to consider the full import of the ECJ's reasoning on the second question decided in MRAX v Belgian State [2003] 1 WLR 1073. Mr de Mello submits that it means that a non-EU national secures an indefeasible right of abode simply by marrying an EU citizen, though he is content to limit the submission to the spouse of an EU worker such as the appellant's wife. But MRAX like Carpenter concerned the underlying principle of movement of EU citizens between member states, which for reasons I have given is not engaged here.
21. It may seem to harsh say of an argument that has not only taken a full day, but has been as attractively presented to an admittedly mildly sceptical court as this argument has been by Mr de Mello, that it is unarguable. But in my judgment it is. Nothing we have heard begins to carry the appellant past the reef on which he foundered in the AIT, that having sought neither to accompany nor to join his wife when she entered the UK since he was already here he could not begin to claim any derivative rights as the spouse of a Union citizen, and that both her right to enter the UK and any derivative claim of his was consequently a matter of domestic and not of EU law. The ECJ case law to which I have referred out of respect for Mr de Mello's argument, while not always easy to understand or to reconcile, has in the end no immediate bearing.
22. I would therefore refuse permission to appeal in this case. Since the application has however been fully argued on notice, if my Lords agree I would lift the usual embargo on citation of this judgment should it prove material in other proceedings.

Lord Justice Wilson:

23. I agree.

Lord Justice Ward:

24. And I also agree.

Order: Application refused