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 AND IMMIGRATION TRIBUNAL
[AIT No: HR/00355/2007]]

		Royal Courts of Justice Strand, London, WC2A 2LL
		24th April 2009

Lord Justice Toulson:

1. This is an appeal with leave of the Asylum and Immigration Tribunal from a decision of Immigration Judge Rimington made on a second-stage reconsideration.
2. Procedurally the background is complex. The appellant is a citizen of Zambia born on 22 July 1962. She came to the UK on 7 February 2001 with a visitor's visa valid for six months from 11 December 2000. Very shortly after arrival she was diagnosed as HIV positive and she was then quite seriously ill. On 13 May 2001 she applied for leave to remain in the UK due to her medical condition. She was granted exceptional leave to remain until 12 December 2003. In 2002 she entered into a relationship with Mr Odon Winkel, a national of Luxembourg, who was also HIV positive. Mr Winkel was born on 11 March 1967, came to the UK in 1994 and has lived here ever since then apart from periods of holiday abroad.
3. In January 2004 the appellant was given discretionary leave to remain in the UK until 16 January 2007. On 22 December 2006 she applied for a further extension of her leave to remain in the UK. Shortly afterwards she became engaged to be married to Mr Winkel. Prior to their engagement they had visited her family in Zambia for their approval and he had paid a dowry. At that time the Immigration (Procedure for Marriage) Regulations 2005 and section 19 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 prevented them from beginning married, but that barrier was held to be unlawful by the judgment of this court in Baiai and Trzcinska v SSHD [2007] 3 WLR 573, a judgment delivered in May 2007.
4. On 15 October 2007 the appellant's application for leave to remain in the UK was refused. She appealed. The appeal originally came before an immigration judge on 30 November 2007 and he dismissed the appeal. His decision was promulgated on 19 December 2007.
5. In the Grounds of Appeal to that Immigration Judge, mention was made of the EEA Regulations and the appellant's wish to marry, but this was mentioned in the context of an Article 8 argument and not as a freestanding ground of appeal that her removal would be unlawful. I should add that the original ground of application for an extension had been Article 3. The Secretary of State also considered Article 8 matters, and these were relied on by the appellant on her appeal from the Secretary of State's refusal to grant a further extension of leave.
6. The original Immigration Judge's decision was promulgated on 19 December 2007. She applied for reconsideration. Shortly before the matter came before Senior Immigration Judge Storey in March 2008 on first-stage reconsideration the respondent issued the appellant with a certificate of approval for marriage. Senior Immigration Judge Gleeson found that the first Immigration Judge had erred in law in failing properly to address the question whether the appellant's removal would be a disproportionate interference with her right to respect for her private and family life under Article 8. In particular, the Immigration Judge had not properly engaged with the question whether it was reasonable to expect her partner, Mr Winkel, to set up their matrimonial home in Zambia.
7. Having found that error of law by the Immigration Judge, he decided that he should not deal with the appeal himself because events had moved on and were continuing to move on. The couple were about to marry. He was told that Mr Winkel was in the process of making an application relating to his rights under the Citizenship Directive and the EEA Regulations 2006. He observed that in conducting the Article 8 balancing exercise, it was important to know the up-to-date position, so he directed that the case should be re-listed.
8. In the course of his determination on first-stage reconsideration he also said this:

"Whilst my decision renders it unnecessary to deal with the grounds for reconsideration in full, I would emphasise one point. I do not consider that the decision of the immigration judge was flawed by any failure to regard the respondent's reasons for refusal as an inadequate statement of reasons. Mr Henderson submitted that the immigration judge should have realised that since the respondent had twice granted leave on medical grounds, she was under a duty to explain why she no longer took that view."

The Senior Immigration Judge was not persuaded of that argument.

9. On 16 April 2008 the appellant and Mr Winkel were married. On 19 May 2008 they each applied for the appropriate residence documents under the EEA Regulations, about which I will say a little more in due course. Such documents are not necessary for the creation of residence rights under the regulations but merely (inaudible).
10. The Secretary of State undertook not to seek to remove the appellant until she had reached a decision on the appellant's application for a residence card. Against that complicated background the appellant's case came before Immigration Judge Rimington for a fresh decision on her appeal against the Secretary of State's refusal to vary her previous leave to remain in the UK. It is against her decision on that appeal that this appeal is brought.
11. Before Immigration Judge Rimington the Home Office presenting officer took the position that because the Secretary of State had undertaken not to attempt to remove the appellant until her outstanding application for the residence card had been decided, there was no present threat to her Article 8 rights and therefore the appeal should be dismissed. If her application for a residence card were refused and the Secretary of State then proposed to remove her, she would have a right of appeal at that stage. Mr Henderson, who appeared for the appellant on that occasion as he has appeared before us, took the position that the Immigration Judge should determine that Mr Winkel had rights of residence under the Citizenship Directive and the EEA Regulations and that she therefore had a right to reside in the UK and the appeal should be allowed.
12. The Immigration Judge thus found herself in a rather unusual procedural position. She had radically different submissions about how she should approach the EEA issue and she gave no indication to the parties what course she intended to adopt. The appellant then gave evidence. Her husband was offered for cross-examination but was not cross examined. There was some cross-examination of the appellant, as I understand it, on other aspects of the case. No questioning was therefore gone into of Mr Winkel about the facts underlying any claim by him to have residence rights under the EEA Regulations, no doubt consistently in the mind of the Home Office presenting officer, with her primary position being that it was premature for the Immigration Judge to try to decide that application and that it should be left to the Secretary of State to deal with on the outstanding application before her.
13. In her redetermination, the Immigration Judge dealt with the EEA aspect as follows:

"58. Although the Appellant put forward the case that her husband was exercising his treaty rights he had not had his application for a residence card considered and indeed only lodged in May 2008. There was no confirmation that this would be granted. Thus I cannot agree with Mr Henderson that de facto her removal would be unlawful. The consideration of any claim under the EEA Regulations was dependent upon his application being successful. Although the Appellant was now married to the Sponsor and it appeared that the marriage had been unlawfully obstructed by the Respondent further to Baiai, her rights still in this regard depend on his.

59. Until such time as this is decided, the current position is that she and her husband have no right to choose where they wish to enjoy their family life. It would appear that Mr OdonWinkel the Appellant's husband, was claiming incapacity benefit in 2002 and in February 2007 was claiming income support. I am not in a position to consider whether he would be considered as a qualified person or entitled under the EEA Regulations to remain in the UK and as the decision has not yet been taken I cannot assume that the appellant is married to an EEA national exercising his treaty rights for the purposes of Article 8.

60. I can make no finding as to whether the Appellant's husband has remained in the UK in accordance with the EEA Regulations and this is now a matter for the Respondent and any subsequent deliberations. That the Immigration Judge stated that 'he cannot be compelled to leave the UK' does not necessarily equate to the Appellant's husband having acquired a right of permanent residence. The fact of their marriage is in part irrelevant because the appellant might have claimed a 'durable relationship' with an EEA national yet did not do so. That line of debate is now otiose. This rests on the status of her now husband. I am not entitled to be the primary decision maker in her application and clearly cannot be so for the Appellant's husband."

14. She then dealt with the other Article 8 matters. Her approach to this was heavily influenced by the well-known case of Mahmood v SSHD [2001] 1 WLR 840 and Ekinci v SSHD [2004] Imm AR 15. She considered that there were no exceptional circumstances why the appellant should not be expected to return to Zambia and make application to enter the UK as Mr Winkel's wife from there. She added at paragraph 75 of her determination:

"In sum I find that the Appellant can either relocate permanently with her husband or return to make an application to return as a spouse. The second option would not involve his departure but merely separate them for a period. I note that the parties have lived at separate addresses for a time during their relationship and thus do not rely on each other for support such as nursing care. I consider that they are independent enough to withstand the separation. Alternatively he too has demonstrated that he can travel and could accompany her if he chose. The couple married in the full knowledge of her immigration status."

15. In adopting that approach the Immigration Judge did not have the benefit of the decisions of the House of Lords in Beoku-Betts v SSHD [2008] UKHL 39 or Chikwamba v SSHD [2008] UKHL 40. The latter is particularly significant because in it the House of Lords adopted a significantly different approach from that which had been generally understood as being the law under decisions in Mahmood and Ekinci. As summarised in the headnote, it was held that while the maintenance and enforcement of immigration control was a legitimate aim in the Secretary of State's policy in relation to Article 8 family life claims, an Article 8 appeal should not be dismissed routinely on the basis that it would be proportionate and more appropriate for the applicant to apply for leave from abroad. Accordingly it had not been, as we now know, right for the Immigration Judge to say that she should only be allowed to put forward her Article 8 case for leave to remain in the UK in this country if there were exceptional circumstances to justify it.
16. Before coming to the criticisms made of the Immigration Judge's judgment, I must bring matters up to date. On 8 October 2008 Senior Immigration Judge Gleeson granted permission to appeal in relation both to the way in which the Immigration Judge dealt or failed to deal with the EEA point and in relation to the way in which she dealt with the Article 8 claim, particularly having regard to the later authorities to which I have referred.
17. The Grounds of Appeal principally addressed the EEA claim, but the final ground of appeal served by Mr Henderson was in these terms:

"11. A would further submit that the Senior Immigration Judge [SIJ Storey] arguably erred in his first stage reasons in finding that the original IJ did not err in refusing to require the SSHD to disclose why she had decided not to extend Discretionary Leave having previously granted it notwithstanding the HOPO's admission that he had no instructions as to why the decision was made not to extend Discretionary Leave or what she viewed as the material change of circumstance. The second stage IJ's consideration of this point was speculation, there having been no submissions on either side. There was no recognition in the refusal letter that Discretionary Leave had already been granted nor explanation of the material and sufficient change of circumstance that led to the decision not to extend it. However, A submits that the basis errors of the second stage IJ in relation to EU law plainly justify permission in any event."

18. Although Senior Immigration Judge Gleeson made no reference to that ground of appeal in her reasons for allowing leave to appeal to this court, Mr Henderson makes the point that the grant of leave was not restricted and therefore he is entitled to argue that discrete point as well as his principal argument relating to the EEA regulations.
19. So there are essentially two parts of the case, which present these questions: in relation to the EEA issue did the Immigration Judge err in law? And what should this court do? There is also a separate point arising from the last paragraph of the grounds of appeal.
20. On the EEA issue Miss Giovanetti properly accepts that the Immigration Judge did err in law. Once the issue of EEA rights had been raised, she had either to determine the point or to adjourn the appeal until the outstanding application had been decided by the Secretary of State. It was not open to her to take the course which she did take of dismissing the appeal without dealing with the EEA point. Miss Giovanetti therefore accepts that Immigration Judge Rimington's determination cannot stand, and the Home Office position has been for some time that there should be a remission of the matter.
21. The appellant submits that she ought to have decided the point on the evidence before her. In order to understand that in its proper context, it is now necessary to say something about the EEA Regulations. It may also be of help to those who have to consider this case after today if we do so because there does seem to have been a degree of confusion, and this case has already involved a lengthy total period of delay with multiple hearings and no doubt a good deal of public expenditure.
22. The EEA regulations were introduced to give effect to the Citizenship Directive, Directive 2004/38/EC of 29 April 2004. Rights of admission and residence are set out in part 2. Regulation 11 deals with right of admission to the UK. It provides that:

"An EEA national must be admitted to the United Kingdom if he produces on arrival a valid national identity or passport issued by an EEA state".

Regulation 13 stipulates that:

"An EEA national is entitled to reside in the UK for a period not exceeding three months beginning on the date of admission provided he holds a valid national identity card or passport issued by an EEA state".

Under regulation 13(2):

"A family member of an EE A national residing in the UK under [regulation 13](1), who is not himself [or herself] an EEA national is entitled to reside in the UK provided that he [or she] holds a valid passport.

But by regulation 13(3):

"an EEA national or his family member who becomes an unreasonable burden on the social assistance system in the UK shall cease to have the right to reside under this regulation.

23. I refer to that because, since the matter was before Immigration Judge Rimington, the Secretary of State has refused both Mr Winkel's application for a residence certificate under Regulation 16 and the appellant's application for a residence card under Regulation 17 in part, at least, on the ground that Mr Winkel ceased to have a right of residence under Regulation 13 by reason of Regulation 13(3)(b). However, although that issue is not currently before us, as it seems to me that paragraph has no relevance to the facts of this case because the rights of residence now asserted by Mr Winkel and, in turn, by the appellant as his wife are not founded on Regulation 13 but are now founded on Regulations 14 and 15. Regulation 14, headed "Extended right of residence", provides that:

"A qualified person is entitled to reside in the UK for as long as he remains a qualified person."

And under 14 (2) a family member of the qualified person residing in the UK has a similar right to reside in the UK as long as he remains the family member of the qualified person. Regulation 14 (4) provides explicitly that:

"A right to reside under this regulation is in addition to any right which that person may have to reside in the UK under regulation 13 or 15."

That is why that I say that if there was a loss of his right to reside under Regulation 13 that would have no materiality in relation to his claimed right under Regulation 14. Regulation 15, headed "Permanent right of residence", provides that:

"(1) the following persons shall acquire the right to reside in the United Kingdom permanently --

…

(b) a family member of an EEA national who is not himself an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years

c) a worker or a self-employed person who has ceased activity;

d) the family member of a worker or self-employed person who has ceased activity;"

Regulation 15(2) provides that:

"Once acquired, the right of permanent residence under this regulation shall be lost only through absence from the United Kingdom for a period exceeding two consecutive years."

24. A qualified person is defined in Regulation 6. It means a person who is an EEA national and in the United Kingdom as, inter alia,
    (a) a job seeker, (b) a worker, or (e) a student. Under Regulation 6(2)

"A person who is no longer working shall not cease to be treated as a worker for the purpose of paragraph 1(b) -- if

(a) he is temporarily unable to work as a result of illness."

A worker who has ceased activity for the purposes of Regulation 15 is defined in Regulation 5 as an EEA national who satisfies any of a number of conditions, one of which is that he terminated his activity in the UK as a worker or self-employed person as a result of a permanent incapacity to work and he resided in the UK continuously for more than two years prior to the termination.

25. All that seems rather complicated but the net effect is that if Mr Winkel became temporarily ill, as he did at one stage, that would not of itself mean that he has ceased to be a qualified person under Article 6. If he became permanently unfit to work through illness, then he would lose his position as a qualified person but would not lose his right to claim a permanent right of residence under Regulation 15 if he had been working in the UK continuously for more than two years.
26. Residence documents are dealt with in Part 3. Residence documents are, as already mentioned, purely evidential. Regulation 16(1) requires the Secretary of State to issue a registration certificate to a qualified person on application and production of valid identity card or passport issued by an EEA state and on proof that he is a permanent person. Regulation 17 requires the Secretary of State to issue a residence card to a person who is not an EEA national and is a family member of a qualified person or of an EEA national with a permanent right of residence under Regulation 15 on application and production of a valid passport and proof that the applicant is such a family member.
27. The upshot of all that is that the appellant does have a right of residence in the UK and is entitled to the issue of a residence card if either Mr Winkel is a qualified person within the meaning of Regulation 6, who therefore has an extended right of residence under Regulation 14 or has a permanent right of residence under Regulation 15, or both.
28. The case which, as of today, Mr Winkel seeks to advance is that he has a right of residence under both Regulation 14 and Regulation 15. He has made two witness statements. In summary and his case is that he came to the UK in 1994 and that he worked here more or less continuously until 2000, when he stopped work on medical grounds. It is his argument and therefore also the appellant's argument that he had by that time acquired a permanent right of residence, but it is also said that he is a qualified person for two reasons: first because he entered the UK to seek work and although he has been off work for a protracted time he has not been rendered permanently unfit for work and therefore has not ceased to be qualified. Secondly, and in any event, he is now seeking work, and on that ground it is argued that he is a qualified person.
29. These arguments have been summarily but clearly articulated in a letter from the appellant's solicitors to the Secretary of State dated 15 May 2008. However, when the matter was before Immigration Judge Rimington, only the argument under Article 15 was advanced. We are, therefore, in this position. If the appellant proceeds with her appeal against the Secretary of State's refusal to issue her with a residence card, which she has lodged and which has been put back pending the outcome of this appeal it will be open to her to argue the case both under Regulation 14 and under Regulation 15. For the purposes of this appeal, however, and deciding whether Immigration Judge Rimington was wrong in law in the way in which she approached the matter, we have to shut our eyes formally to any consideration of Regulation 14.
30. With that rather protracted journey through the regulations in order to see where we actually stand on this appeal, the question has to be addressed whether, on the material before Immigration Judge Rimington, it was so plainly and obviously established that Mr Winkel had a permanent right of residence under Regulation 15 that the judge was wrong not only in deciding to dismiss his appeal but in failing to decide to allow it on EEA grounds. The judge herself took the view that it was not possible for her satisfactorily to decide the point and I do not consider that she can be said to have adopted in any sense a perverse position in taking that view of the facts. The material before her to support the case for permanent residence consisted of witness statements which left matters for exploration. This whole issue had come into the case in a rather indirect fashion. As I have already mentioned, it had formed no part of the original grounds of appeal from the determination of the first Immigration Judge and in my view justice demands that there should be a remittal of the matter, subject to some observations which I will make a little later.
31. It seemed to me indeed that Mr Henderson was treading on dangerously thin ice when at one stage he appeared to be asking the court to decide positively the issue whether he had proved that he had permanent residence rights on our deciding that the Immigration Judge, as is conceded, had made an error of law because, if called on to decide that question positively, he faced the risk that the decision might have been taken that the evidence was not sufficiently clear positively to prove it. Ultimately, however, Mr Henderson, with encouragement from the court, did not pursue that position, although he did continue to maintain that there was sufficient clarity in the material before the judge to have enabled her to determine it in his client's favour. For the reasons stated I am not persuaded of that submission.
32. I turn to the remaining issues of the case. It is properly conceded by the Secretary of State that the matter should also be remitted to a Tribunal to reconsider the appellant's claim under Article 8. In the light of that concession, it is not necessary for me to go into the reasons which would have led me to the same conclusion in any event. There is, however, one remaining point about which we have heard argument and that is the point introduced by paragraph 11 of Mr Henderson's grounds of appeal.
33. I can see no error in the way in which Senior Immigration Judge Gleeson dealt with this issue: that is, whether the original Immigration Judge's decision was flawed because he failed to attach proper significance to the Secretary of State's failure to explain why she had initially granted discretionary leave to remain on medical grounds, but was now refusing to do so. In Huang v SSHD [2007] 2 AC 167, the House of Lords addressed the question of the decision-making role or function of appellant immigration authorities, including the AIT and the courts, when deciding appeals on Convention grounds against refusal of leave to enter or remain. At paragraph 13 Lord Bingham stated that:

"…the appellate immigration authority, deciding an appeal under section 65, is not reviewing the decision of another decision-maker. It is deciding whether or not it is unlawful to refuse leave to enter or remain, and it is doing so on the basis of up-to-date facts."

34. It does not of course follow from this that the Secretary of State should not give her reasons when refusing an application for discretionary leave to remain. In this case she did give her reasons and they ran for a number of pages. The argument is advanced, however, that because the appellant's medical condition had not materially changed, it was not enough for the respondent to give her reasons for refusing the application for discretionary leave to remain; she had in addition to explain why she was taking a different position from that which had been taken by a previous case worker on similar medical material some years earlier. That would convert a discretionary decision to grant leave to remain for a limited period into a decision to grant indefinite leave, subject only to the Secretary of State being able to point to a change of circumstances. That is not the nature of a discretionary grant of leave to remain.
35. The letter giving previous discretionary leave to remain gave no representation that the leave would be continued from the expiry date for as long as there was no material change of circumstances. It simply indicated that any application for an extension would be looked at in the circumstances as they then were. It is to my mind not without some interest that, between the grant of leave in 2003 and the refusal of leave in 2007, the case of N v  SSHD [2005] 2 AC 296 had been decided both by the Court of Appeal and by the House of Lords. Be that as it may, the Secretary of State gave her reasons for refusing to grant discretionary leave to remain and Senior Immigration Judge Gleeson was fully entitled to the view that while other criticisms could be made of the determination of the original Immigration Judge, they did not include failure properly to consider the reasons advanced by the Secretary of State.
36. I would therefore propose that the proper disposal of this appeal is that the appeal should be allowed and the matter remitted to the AIT for determination of the EEA point and for fresh determination of any Article 8 argument if the appellant is unsuccessful on the EEA point. It would obviously be administratively sensible for that remitted hearing to be dealt with jointly with the appellant's appeal from the Secretary of State's refusal of her application for a residence card and Mr Winkel's application for refusal of a residence certificate because they all raise the same issues, albeit that in relation to the EEA claims the grounds of claim available on the appeal from the Secretary of State's latest decision are wider than the grounds which have been argued on this appeal.
37. It does not of course necessarily follow that this case will actually have to result in yet a further court hearing. This case has now been around the circuit of AIT decisions for a very long time, causing no doubt great uncertainty and anxiety for the appellant and no doubt also occupying a good deal of time of decision-makers and of public funds. On the face of the statements made by Mr Winkel, he would appear to have a good claim to have acquired a permanent right of residence under Regulation 15 and in any event to be a qualified person under Regulation 14. I say that he would appear to do so; the Secretary of State may wish to make her investigations, but it really should not be a very difficult matter to investigate quite quickly. The short fact is we have here an appellant who is married to an EU national who has been living in this country (that is, the EU national) for 15 years, either working or off work because of illness. It would be surprising if he is not entitled to remain in the UK.
38. But that is not the end of the matter because the letter of refusal of Mr Winkel's application for residence certificate ended with the Secretary of State indicating that she was not seeking to remove him from the UK, and it would seem that he is going to be continuing to live or likely to continue to live in the UK therefore as his permanent residence. The question would therefore arise whether it can realistically be thought reasonable to expect him to relocate in order to make his matrimonial home in Zambia and whether there can be any real justification for requiring the appellant to leave the UK. The engagement of her Article 8 rights is obvious, no questions have been raised about the bona fides of the marriage. This is a lady who has been lawfully in the UK at all material times. But at all events it really should be possible for the Secretary of State to take a swift decision on these matters before further expense is incurred. I am reassured by Miss Giovanetti telling the court this afternoon that instructions are about to be sent to counsel to reconsider the case of Mr Winkel, and it may be that although this appeal has taken quite a lengthy time to go over matters which are not strictly in issue it may ultimately have served a useful purpose.

Lord Justice Jacob:

39. I agree. The appellant has won the main part of his appeal by concession. Both the Article 8 point and the EEA points are to be remitted. Upon that remission, if unhappily it proves necessary, there will be full argument and evidence. The appellant will be able to bolster his existing evidence if he feels it necessary to do so, particularly to meet the criticisms thus far advanced by Miss Giovanetti. The appellant is in a better position than he would have been if he had pressed on asking this court to make a finding in relation to the EEA point, particularly that which he had raised under Regulation 15, because there were no findings of the tribunals below upon which that point could be founded. If he had pressed on, he would very likely have lost and the whole matter would have been res judicata. That which is now likely to happen could not happen. So I agree with the course proposed and I agree with every word of the last part of my Lord's judgment.

Lord Justice Mummery:

40. I agree. Then the court will make the orders in the form indicated by Toulson LJ allowing the appeal and remitting the EEA point for determination and the Article 8 point for redetermination by the AIT.

Order: Appeal allowed