England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

		Royal Courts of Justice Strand, London, WC2A 2LL
		12/05/2011

Lord Justice Stanley Burnton :

Introduction

1. On 31 March 2011, we heard:

(1) The appeal of Godwin Amos against the determination dated 23 April 2010 of Designated Immigration Judge Woodcraft, sitting as a judge of the Upper Tribunal (Immigration and Asylum Chamber) ("the Tribunal"), dismissing his appeal against a decision rejecting his application for permanent residence under the provisions of the Immigration (European Economic Area) Regulations 2006 ("the Regulations").

(2) The application for permission to appeal of Emilia Theophilus against the determination of Senior Immigration Judge Moulden, sitting as a judge of the Tribunal, dismissing her appeal against a similar decision of the Secretary of State for the Home Department. Ms Theophilus' application was listed on the basis that her appeal would be heard immediately if permission was granted.

(3) The application of the Secretary of State to file and to serve Respondent's Notices out of time in Mr Amos's appeal and, if permission to appeal was granted, in that of Ms Theophilus.

2. The Court decided to grant permission to appeal to Ms Theophilus, and the hearing was duly treated as the hearing of her appeal.
3. For the appellants, Mr Gill QC did not suggest that the late service of the Secretary of State's notices had caused the appellants any prejudice. Since the contention advanced in those notices was entirely one of law, which did not involve any new evidence to be adduced to the Court of Appeal, I would grant the Secretary of State's applications.

The facts

(a) Mr Amos

4. Mr Amos is a citizen of Nigeria. In January 2003 he married Marie-Hélène Gomis, a French citizen, in the UK. He and his wife were granted residence documents for 5 years until 14 March 2008. On 1 March 2008 he commenced divorce proceedings. On 13 March 2008, he applied to the Secretary of State for recognition of his right to permanent residence. On 18 August 2008 the decree absolute was granted dissolving his marriage. On 11 June 2009 the Secretary of State rejected his application.
5. Designated Immigration Judge Woodcraft rejected Mr Amos's case on the ground that, as had been earlier decided by the Tribunal in the case of OA [2010] UKAIT 00003, a family member of an EEA national must show that for the period of 5 years (apart from any periods of absence specified in regulation 3) preceding the claim for the right of permanent residence the EEA national on whom his claim depends resided in the UK exercising treaty rights. There was no evidence that Mrs Gomis had worked and Mr Amos was therefore not entitled to the right of permanent residence.

(b) Ms Theophilus

6. Ms Theophilus is also a citizen of Nigeria. She entered the UK in February 2002 and on 12 June 2003 she married Edouard Batman, a French citizen. She was granted a right of residence in the UK as the family member of an EEA national resident in this country and exercising treaty rights for the period from 27 August 2003 to 21 August 2008. Her marriage broke down, and the couple separated when Mr Batman moved out of the matrimonial home in late 2007. She started divorce proceedings in July 2008 and was granted a decree absolute on 8 December 2008. She has worked throughout her time in the UK.
7. Both parties were legally represented before Senior Immigration Judge Moulden. Her appeal was argued by reference to regulation 10 of the Regulations. Her evidence was that when she met her husband he worked as a chef. She did not know whether he had continued to work after their separation, and in particular she did not know whether he was working at the date of their divorce, or even whether he was still living in the UK at that date.
8. Senior Immigration Judge Moulden dismissed Ms Theophilus' appeal on the ground that she did not satisfy the requirements of regulation 10(5)(b), because she had not shown that her husband was exercising treaty rights (i.e., working) at the date of her divorce.

The applicable legislation

9. Before us, the appeals were argued by reference to the terms of the Citizenship Directive (Directive 2004/38/EC "on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States") ("the Directive"), which is transposed into our domestic law by the Regulations, on the basis that the Regulations must be interpreted and applied consistently with the Directive unless that is impossible, in which case it would be necessary to disapply the offending provisions of the Regulations. It is not however suggested that the Regulations do not correctly transpose the Directive. The relevant provisions of the Directive are set out in the annex to my judgment.
10. The principal provisions of the Regulations relevant to the Tribunal decisions are the definition of "qualified person" in regulation 6 and regulations 10 and 13 to 15. Regulation 6 defines a "qualified person" as a person who is an EEA national and in the United Kingdom as a jobseeker, a worker, a self-employed person, a self-sufficient person or a student. Regulation 10, so far as relevant to divorced spouses of EEA nationals, is as follows:

10. (1) In these Regulations, "family member who has retained the right of residence" means, subject to paragraph (8), a person who satisfies the conditions in paragraph (2), (3), (4) or (5).

….

(5) A person satisfies the conditions in this paragraph if--

(a) he ceased to be a family member of a qualified person on the termination of the marriage or civil partnership of the qualified person;

(b) he was residing in the United Kingdom in accordance with these Regulations at the date of the termination;

(c) he satisfies the condition in paragraph (6); and

(d) either--

(i) prior to the initiation of the proceedings for the termination of the marriage or the civil partnership the marriage or civil partnership had lasted for at least three years and the parties to the marriage or civil partnership had resided in the United Kingdom for at least one year during its duration;

(ii) the former spouse or civil partner of the qualified person has custody of a child of the qualified person;

(iii) the former spouse or civil partner of the qualified person has the right of access to a child of the qualified person under the age of 18 and a court has ordered that such access must take place in the United Kingdom; or

(iv) the continued right of residence in the United Kingdom of the person is warranted by particularly difficult circumstances, such as he or another family member having been a victim of domestic violence while the marriage or civil partnership was subsisting.

(6) The condition in this paragraph is that the person—

(a) is not an EEA national but would, if he were an EEA national, be a worker, a self-employed person or a self-sufficient person under regulation 6; or

(b)is the family member of a person who falls within paragraph (a).

11. Regulations 13 to 15 are as follows:

13 Initial right of residence

(1) An EEA national is entitled to reside in the United Kingdom for a period not exceeding three months beginning on the date on which he is admitted to the United Kingdom provided that he holds a valid national identity card or passport issued by an EEA State.

(2) A family member of an EEA national residing in the United Kingdom under paragraph (1) who is not himself an EEA national is entitled to reside in the United Kingdom provided that he holds a valid passport.

(3) But--

(a) this regulation is subject to regulation 19(3)(b); and

(b) an EEA national or his family member who becomes an unreasonable burden on the social assistance system of the United Kingdom shall cease to have the right to reside under this regulation.

14 Extended right of residence

(1) A qualified person is entitled to reside in the United Kingdom for so long as he remains a qualified person.

(2) A family member of a qualified person residing in the United Kingdom under paragraph (1) or of an EEA national with a permanent right of residence under regulation 15 is entitled to reside in the United Kingdom for so long as he remains the family member of the qualified person or EEA national.

(3) A family member who has retained the right of residence is entitled to reside in the United Kingdom for so long as he remains a family member who has retained the right of residence.

(4) A right to reside under this regulation is in addition to any right a person may have to reside in the United Kingdom under regulation 13 or 15.

(5) But this regulation is subject to regulation 19(3)(b).

15 Permanent right of residence

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

(a) an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years;

(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 self-employed person who has ceased activity;

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

(e) a person who was the family member of a worker or self-employed person where--

(i) the worker or self-employed person has died;

(ii) the family member resided with him immediately before his death; and

(iii) the worker or self-employed person had resided continuously in the United Kingdom for at least the two years immediately before his death or the death was the result of an accident at work or an occupational disease;

(f) a person who--

(i) has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years; and

(ii) was, at the end of that period, a family member who has retained the right of residence.

(2) 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.

(3) But this regulation is subject to regulation 19(3)(b).

12. Regulation 19 is irrelevant to these appeals, but in view of the references to paragraph (3)(b) in regulations 13, 14 and 15 I set out it and the paragraphs to which it refers:

(3) Subject to paragraphs (4) and (5), a person who has been admitted to, or acquired a right to reside in, the United Kingdom under these Regulations may be removed from the United Kingdom if—

(a) he does not have or ceases to have a right to reside under these Regulations; or

(b) he would otherwise be entitled to reside in the United Kingdom under these Regulations but the Secretary of State has decided that his removal is justified on the grounds of public policy, public security or public health in accordance with regulation 21.

(4) A person must not be removed under paragraph (3) as the automatic consequence of having recourse to the social assistance system of the United Kingdom.

(5) A person must not be removed under paragraph (3) if he has a right to remain in the United Kingdom by virtue of leave granted under the 1971 Act unless his removal is justified on the grounds of public policy, public security or public health in accordance with regulation 21.

The contentions of the parties on these appeals

13. For the appellants, it was submitted that the Directive, and therefore the Regulations, should be given a generous interpretation as demonstrated by the recitals to the Directive, and in particular recitals (3), (5), (15) and (17). It was wrong for it to be interpreted as requiring the spouse of an EEA national, who establishes life with his or her spouse in this country, to be required to uproot himself or herself on their divorce. The basic requirement of the Directive is that a non-national of this country should not be an unreasonable burden. Both of the appellants were and are workers, and their right to residence is not dependent on their showing that their former spouses were working, and in particular it was unnecessary to show that they had been doing so for the period of 5 years preceding the application for the right of permanent residence.
14. In the case of Ms Theophilus, the incorrect application of the Directive was aggravated by the fact that she was unable to prove that her former husband was or had been working, since she did not know where he was, whereas the Government did know and could have produced proof in terms of National Insurance or income tax records.
15. Finally, it was submitted that the Court should make a reference to the Court of Justice of the European Union in order to obtain an authoritative ruling on the interpretation and effect of the Directive in the circumstances of the appellants.
16. For the Secretary of State, Mr Eicke accepted that the Secretary of State and the Tribunal had wrongly interpreted and applied the Regulations. They had overlooked that Articles 12 to 14 of the Directive, transposed by regulation 10, are concerned with retention of the right of residence. They assume that the person in question has a right of retention that might but for those provisions be lost. The prior question to be considered is whether the person claiming a right of residence had acquired that right. Only if that person has acquired a right of residence does the question of its retention arise.
17. Given that the Tribunal had not considered the correct questions, Mr Eicke submitted that the appellants' appeals should be remitted to the Tribunal to be determined in accordance with the Regulations (and Directive) correctly interpreted.
18. In relation to the additional issue on Ms Theophilus' appeal, Mr Eicke submitted that it had been for her to adduce such evidence as she wished before the Tribunal. She had not applied for any interlocutory order from the Tribunal for the production of any documents that might be in the possession of HMRC or the social security authorities. The Home Secretary was under no duty to prove her case for her.

Discussion

19. While sympathising with the position of the Appellants, I am unable to accept their contentions. The Directive confers three rights of residence: the right of residence for up to 3 months, conferred by Article 6; the right of residence for more than 3 months, conferred by Article 7; and the right of permanent residence conferred by Article 8. The requirements for the grant of permanent residence are, not surprisingly, more demanding than the lesser rights: for an EEA national, it is basically 5 years' continuous residence while exercising Treaty rights, and in particular working.
20. Both of the appellants sought the right of permanent residence. A divorced spouse must establish that he or she has the right of residence in question before the question whether, notwithstanding the divorce, it has been retained by virtue of Article 13 can be determined. His or her right of permanent residence is the subject of Article 16.2 or Article 18.
21. Article 16.2 applies to "family members who are not nationals of a Member State and have legally resided with the Union citizen in the host Member State for a continuous period of five years". "Legally" must be given a Community meaning: it refers to Community law, not to domestic law. In the present context, it includes the lesser rights of residence conferred by the Directive or earlier EU law instruments, and in particular Regulation (EEC) No. 1612/68 of the Council of 15 October 1968 on Freedom of Movement for Workers within the Community. These rights depend on the exercise of Treaty rights.
22. In Case 267/83 Diatta v Land Berlin [1985] ECR 567, the ECJ considered the residence rights of a separated spouse under Regulation (EEC) No. 1612/68 of the Council of 15 October 1968 on Freedom of Movement for Workers within the Community. Mrs Diatta was married to a French national who lived and worked in Berlin. She separated from him, and claimed a right of residence in Germany. The Bundesverwaltungsgericht referred to the Court two questions, the first of which was:

"Is Article 10(1) of Regulation (EEC) No. 1612/68 to be interpreted as meaning that the spouse of a worker who is a national of a member state and who is employed in the territory of another member state may be said to live 'with the worker' if she has in fact separated from her spouse permanently but none the less lives in her own accommodation in the same place as the worker?"

23. The Court's answer to this question was:

"The members of a migrant worker's family, as defined in article 10 of Regulation no 1612/68, are not necessarily required to live permanently with him in order to qualify for a right of residence under that provision."

24. Before us it was common ground that, despite the Delphic nature of this answer, and the significant differences between the wording of Articles 10 and 11 of Regulation no 1612/68 and the wording of the corresponding provisions of the Directive, it follows from that decision that separation short of divorce does not affect the right of the non-national spouse under Article 16 of the Directive if both the EEA national and his or her non-national spouse continue to reside in the same Member State. I am prepared to assume that this is correct, without deciding the point.
25. Article 13 provides for the "retention of the right of residence" on divorce. Although it does not expressly confer an independent right of residence, the same language is used in Article 12. Article 12 envisages that a widow or widower may acquire the right of permanent residence, provided she or he is a worker etc.. It is obvious that the Directive cannot be interpreted as requiring the widow or widower, in order to retain the right of residence, to show that her or his deceased spouse continues to work. The same must apply to Article 13. Indeed, I read Mr Eicke as having accepted this, in paragraph 29 of his skeleton. It follows that I do not agree that the appellants were required to show that their former spouses were working for a continuous period of 5 years prior to their applications for the right of permanent residence. In my judgment, therefore, OA was incorrectly decided.
26. If, immediately before divorce, the requirements of Article 7.2 are satisfied, the non-national must then satisfy the requirements of Article 13.2. The relevant requirements in the present cases are, first, that:

prior to initiation of the divorce or annulment proceedings or termination of the registered partnership referred to in point 2(b) of Article 2, the marriage or registered partnership has lasted at least three years, including one year in the host Member State.

27. The right of permanent residence sought by the appellants is subject to the further requirement of the penultimate paragraph of Article 13.2:

Before acquiring the right of permanent residence, the right of residence of the persons concerned shall remain subject to the requirement that they are able to show that they are workers or self-employed persons or that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State, or that they are members of the family, already constituted in the host Member State, of a person satisfying these requirements. "Sufficient resources" shall be as defined in Article 8(4).

28. Article 18 is also pertinent. It confers a right of permanent residence on a divorced non-national, to whom Article 12(2) or 13(2) applies, after 5 years' legal residence. It does not require the non-national to have lived "with" the EEA national during that period. (Again, this is obvious in an Article 12(2) case, since the national spouse has died.)
29. Thus the requirements of the Directive applicable to the appellants were as follows:

(1) At all times while residing in this country until their divorce, their spouse must have been a worker or self-employed (or otherwise satisfied the requirements of Article 7.1).

(2) Their marriages had to have lasted at least three years, including one year in this country.

(3) They must be able to show that they are workers or self-employed persons or otherwise satisfy the requirements of the penultimate paragraph of Article 13.2.

30. The Regulations are consistent with these propositions. Regulation 10(5) provides that a "family member who has retained the right of residence" must in a case such as the present appeals satisfy the following conditions:

(a) His or her divorce from the EEA national.

(b) He or she was residing in the UK in accordance with the Regulations at the date of the divorce. He or she will have been so residing if regulation 14 applied, i.e. if the EEA national spouse was a "qualified person", i.e., for present purposes, a worker or self-employed person (as to which see the definitions in regulations 2 and 6).

(c) He or she is a worker or self-employed person, and therefore satisfies paragraph (6).

(d) 3 years' marriage, including at least one year's residence in the UK.

31. Provided these conditions continue to be satisfied, after 5 years' continuous residence in the UK a non-EEA national will be entitled to a permanent right of residence under regulation 15(1)(f).
32. In these circumstances, I do not consider that a reference to the Court of Justice is necessary or appropriate.

Conclusion in Mr Amos's appeal

33. Because the focus of the Tribunal's inquiry in the case of Mr Amos was whether his former wife had worked for a continuous period of 5 years before his application for the right of permanent residence, the Tribunal did not investigate, and did not make the necessary findings of fact, as to whether he had satisfied the requirements I have summarised. In these circumstances, it is in my view appropriate to set aside the order made by the Tribunal in his case, and to remit the matter to the Tribunal for a fresh hearing.

Ms Theophilus' appeal: procedure

34. I would reject Ms Theophilus' contention that the Secretary of State was required to assist her to establish her case. The procedure in appeals before the Tribunal are essentially adversarial: the appellant seeks to show that the decision of the Secretary of State was unlawful or otherwise wrong. The Secretary of State must present the facts as known to her fairly, and seek a decision of the Tribunal that accords with the law, but to go beyond those requirements would be irrational: it would be to require the Secretary of State to take steps to prove that her own decision was wrong.
35. There is nothing in the Directive or the Regulations or in the decisions of the Court of Justice to detract from the general principle of Community Law that procedural matters are subject to the domestic law of the Member States. In Impact v Minister for Agriculture and Food and others [2008] ECR I-2783, the ECJ said:

"44. The Court has consistently held that, in the absence of Community rules governing the matter, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from Community law (see, in particular, Case 33/76 Rewe-Zentralfinanz and Rewe-Zentral [1976] ECR 1989, paragraph 5; Case 45/76 Comet [1976] ECR 2043, paragraph 13; Case C-312/93 Peterbroeck [1995] ECR I-4599, paragraph 12; Unibet, paragraph 39; and Joined Cases C-222/05 to C-225/05 van der Weerd and Others [2007] ECR I-4233, paragraph 28)."

36. Similarly, in Case C-408/03 Commission v Belgium, the Court pointed out that:

"… as the right of residence under Article 18 EC is not unconditional, it is for the citizens of the Union to adduce the necessary evidence that they meet the conditions laid down in that regard by the relevant Community provisions."

37. In the present context, Article 8 of the Directive permits Member States to impose specified requirements on Union citizens for the issue of a registration certificate. Article 10 goes further, and imposes an obligation on Member States to require non-national persons seeking residence cards to present specified documents as evidence of their entitlement. These Articles impose no evidentiary obligations on Member States. Article 21, providing that "continuity of residence may be attested by any means of proof in use in the host Member State", is consistent with the general principle.
38. The appellants relied on the opinion of the Advocate General and the judgment of the ECJ in Case C-424/98 Commission of the European Communities v Italian Republic. However, if anything they support the submissions of the Secretary of State. The case concerned earlier Directives on the rights of residence of students. Italy had enacted regulations that required students claiming a right of residence to produce specified documents. The Commission contended that that made it difficult for them to prove their entitlement, exceeded the requirements of the Directives and frustrated its objectives. Both the Advocate General and the Court emphasised that it was for an applicant to prove his entitlement and that within limits the Member States may decide how entitlement is to be proved. The Advocate General said:

21. I note that both Directive 90/364 and Directive 90/365 provide that, for the purpose of issuing the residence permit, the Member State may only require that the applicant present a valid identity card or passport and provide proof that he meets the necessary conditions, that is, that he has an income which is considered sufficient within the meaning of the Directives and that he has, for himself and for the members of his family, health insurance covering all risks in the host Member State.

22.    It is clear that neither of the directives deals with the way in which persons applying for a residence permit must prove that they satisfy the conditions; therefore the Member States have a degree of discretion in asking for evidence that the conditions are met.

…

I should like to add that the laws of the Member States must have enough flexibility not to frustrate the main and ultimate objective of Directives 90/364 and 90/365, which is the abolition, as between Member States, of obstacles to freedom of movement for persons, so that the exercise of the right of residence for Union nationals and the members of their family in any of the Member States becomes a real possibility.

23. In the light of that objective I share the opinion of the Commission that the Italian Republic has exceeded its authority in the exercise of its discretion by requiring that all the documents to be submitted by persons applying for residence permits in Italy and to whom Directive 90/364 and Directive 90/365 apply, are issued by public authorities and certified by consular authorities, without agreeing to the submission of evidence which the applicant could obtain with less difficulty Italy's assertion that, since the end of 1998, for the purposes of proving relationship or dependency, it has applied the same treatment to Union nationals as to Italian nationals, cannot be accepted, because it has adduced no evidence of this and because there is no record that the Commission has been informed of that amendment.

39. Similarly, the Court said:

34.  It is common ground that Directives 90/364 and 90/365 lay down the substantive conditions, in particular as regards sickness insurance and resources, for issuing a residence permit, but that they do not deal expressly with the manner in which the beneficiaries of those directives must demonstrate that they fulfil those conditions.

35. The fact remains, however, that when exercising their powers in this area Member States must ensure both the basic freedoms guaranteed by the Treaty and the effectiveness of directives containing measures to abolish obstacles to the free movement of persons between those States, so that the exercise by citizens of the European Union and members of their family of the right to reside in the territory of any Member State may be facilitated (see Joined Cases C-193/97 and C-194/97 De Castro Freitas and Escallier v Ministre des Classes Moyennes et du Tourisme [1998] ECR I-6747, paragraph 23).

36. Moreover, Member States must make use of the various possibilities offered by other rules of Community law, particularly in relation to the production of evidence, by means of certificates issued by national social security bodies at the request of the persons concerned, of the fact that those persons are covered by a specific social security scheme and of the amount of the pensions and allowances paid by those bodies.

37. It follows that by limiting the means of proof which may be relied upon, and in particular by providing that certain documents must be issued or certified by the authority of a Member State, the Italian Republic has exceeded the limits imposed upon it by Community law. The Commission's second complaint must therefore be upheld.

40. The italics are mine. Ms Theophilus does not suggest that the procedural law of the Tribunal hindered her ability to prove her case. Rule 51 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 authorises the Tribunal to "allow oral, documentary or other evidence to be given of any fact which appears to be relevant to an appeal" … even if that evidence would be inadmissible in a court of law. Furthermore, as Mr Eicke pointed out, Ms Theophilus could have applied under regulation 50 for a witness summons requiring her ex-husband to attend and give evidence as to whether or not he was and had been working. She did not do so. Nor did she seek a direction under rule 45 requiring the Secretary of State to provide any information necessary for the determination of her appeal. Indeed, she made no relevant application to the Tribunal. As Maurice Kay LJ pointed out in the course of argument, in these circumstances it is impossible to identify any error of law on the part of the Tribunal in this respect.
41. Ms Theophilus also submitted that the decision of the House of Lords in Kerr v Department for Social Development [2004] UKHL 23 [2004] 1 WLR 1372 was authority for the proposition that it was for the Home Secretary to produce the documentation available to Her Majesty's Revenue and Customs and the Department for Work and Pensions that would establish that her former husband had worked. Again, I am unable to accept this submission. In her speech, with which the other members of the Appellate Committee agreed, Baroness Hale said:

61. Ever since the decision of the Divisional Court in R v Medical Appeal Tribunal (North Midland Region), Ex p Hubble [1958] 2 QB 228, it has been accepted that the process of benefits adjudication is inquisitorial rather than adversarial. Diplock J as he then was said this of an industrial injury benefit claim at p 240:

"A claim by an insured person to benefit under the Act is not truly analogous to a lis inter partes. A claim to benefit is a claim to receive money out of the insurance funds . . . Any such claim requires investigation to determine whether any, and if so, what amount of benefit is payable out of the fund. In such an investigation, the minister or the insurance officer is not a party adverse to the claimant. If analogy be sought in the other branches of the law, it is to be found in an inquest rather than in an action."

62. What emerges from all this is a co-operative process of investigation in which both the claimant and the department play their part. The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met. The claimant is the one who generally speaking can and must supply that information. But where the information is available to the department rather than the claimant, then the department must take the necessary steps to enable it to be traced.

63. If that sensible approach is taken, it will rarely be necessary to resort to concepts taken from adversarial litigation such as the burden of proof. The first question will be whether each partner in the process has played their part. If there is still ignorance about a relevant matter then generally speaking it should be determined against the one who has not done all they reasonably could to discover it. As Mr Commissioner Henty put it in decision CIS/5321/1998, "a claimant must to the best of his or her ability give such information to the AO as he reasonably can, in default of which a contrary inference can always be drawn." The same should apply to information which the department can reasonably be expected to discover for itself.

64. That is the position on the facts of this case. It is not suggested that the claimant was in any way to blame for the way in which the undertakers had filled in the form for him. …

65. But the department freely acknowledges that such information is available to it. All it needs is a name and a date of birth, from which it can trace the National Insurance number, which in turn should enable it to discover whether benefits are being paid. In many cases, if there is a claim, the department can also discover whether or not the claimant has capital. Section 3(1) and (2) of the Social Security Act 1998 makes it clear that the relevant departments are able to use the information relating to social security which they hold for any purposes connected with their functions in relation to social security. Yet the department never asked the claimant for this information. Indeed, the section of the claim form asking for details of other relatives does not ask for dates of birth (perhaps it will do so as a result of this case). Nor did the department seek this information from the claimant despite making further inquiries of him which revealed that it should have been asked. In those circumstances, the department cannot use its own failure to ask questions which would have led it to the right answer to defeat the claim.

42. The context in Kerr was social security rather than immigration, a relevant distinction, as appears from the citation from Diplock J and Baroness Hale's conclusion from it. Even so, Baroness Hale was careful to limit her comments to information held by the department in question. Kerr is not authority for the proposition that the Department for Social Development of Northern Ireland, the appellant in the appeal, was under any duty to obtain information available to other government departments or authorities. Even if transposed to the present context, it is not authority for the proposition that the Home Secretary is bound to make enquiries of other government departments for evidence they may or may not have concerning issues before the Tribunal.

Conclusion in Ms Theophilus' appeal

43. As in the case of Mr Amos, the Tribunal misconstrued the requirements of the Regulations. The Secretary of State has conceded that in these circumstances her appeal should be remitted to the Tribunal to be heard afresh. I agree that the Court should so order.

Lord Justice Maurice Kay:

44. I agree.

The Master of the Rolls

45. I also agree.
ANNEX TO THE JUDGMENT OF LORD JUSTICE STANLEY BURNTON The Directive Recitals

(1) Citizenship of the Union confers on every citizen of the Union a primary and individual right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaty and to the measures adopted to give it effect.

(2) The free movement of persons constitutes one of the fundamental freedoms of the

internal market, which comprises an area without internal frontiers, in which freedom is ensured in accordance with the provisions of the Treaty.

(3) Union citizenship should be the fundamental status of nationals of the Member States when they exercise their right of free movement and residence. It is therefore necessary to codify and review the existing Community instruments dealing separately with workers, self-employed persons, as well as students and other inactive persons in order to simplify and strengthen the right of free movement and residence of all Union citizens.

…

(15) Family members should be legally safeguarded in the event of the death of the Union citizen, divorce, annulment of marriage or termination of a registered partnership. With due regard for family life and human dignity, and in certain conditions to guard against abuse, measures should therefore be taken to ensure that in such circumstances family members already residing within the territory of the host Member State retain their right of residence exclusively on a personal basis.

…

(17) Enjoyment of permanent residence by Union citizens who have chosen to settle long term in the host Member State would strengthen the feeling of Union citizenship and is a key element in promoting social cohesion, which is one of the fundamental objectives of the Union. A right of permanent residence should therefore be laid down for all Union citizens and their family members who have resided in the host Member State in compliance with the conditions laid down in this Directive during a continuous period of five years without becoming subject to an expulsion measure.

Substantive provisions

Article 1 Subject

This Directive lays down:

(a) the conditions governing the exercise of the right of free movement and residence within the territory of the Member States by Union citizens and their family members;

(b) the right of permanent residence in the territory of the Member States for Union citizens and their family members;

(c) the limits placed on the rights set out in (a) and (b) on grounds of public policy, public security or public health.

Article 2 Definitions

For the purposes of this Directive:

1) "Union citizen" means any person having the nationality of a Member State;

2) "Family member" means:

(a) the spouse;

,,,

(c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b);

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Article 3 Beneficiaries

1. This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.

Article 6 Right of residence for up to three months

1. Union citizens shall have the right of residence on the territory of another Member State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport.

2. The provisions of paragraph 1 shall also apply to family members in possession of a valid passport who are not nationals of a Member State, accompanying or joining the Union citizen.

Article 7 Right of residence for more than three months

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; or

(b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or

(c) – are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and

– have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence; or

(d) are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c).

2. The right of residence provided for in paragraph 1 shall 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 paragraph 1(a), (b) or (c).

3. For the purposes of paragraph 1(a), a Union citizen who is no longer a worker or self-employed person shall retain the status of worker or self-employed person in the following circumstances:

(a) he/she is temporarily unable to work as the result of an illness or accident;

(b) he/she is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a job-seeker with the relevant employment office;

(c) he/she is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than a year or after having become involuntarily unemployed during the first twelve months and has registered as a job-seeker with the relevant employment office. In this case, the status of worker shall be retained for no less than six months;

(d) he/she embarks on vocational training. Unless he/she is involuntarily unemployed, the retention of the status of worker shall require the training to be related to the previous employment.

Article 9 Administrative formalities for family members who are not nationals of a Member State

1. Member States shall issue a residence card to family members of a Union citizen who are not nationals of a Member State, where the planned period of residence is for more than three months.

Article 12 Retention of the right of residence by family members in the event of death or departure of the Union citizen

1. Without prejudice to the second subparagraph, the Union citizen's death or departure from the host Member State shall not affect the right of residence of his/her family members who are nationals of a Member State.

Before acquiring the right of permanent residence, the persons concerned must meet the conditions laid down in points (a), (b), (c) or (d) of Article 7(1).

2. Without prejudice to the second subparagraph, the Union citizen's death shall not entail loss of the right of residence of his/her family members who are not nationals of a Member State and who have been residing in the host Member State as family members for at least one year before the Union citizen's death.

Before acquiring the right of permanent residence, the right of residence of the persons concerned shall remain subject to the requirement that they are able to show that they are workers or self-employed persons or that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State, or that they are members of the family, already constituted in the host Member State, of a person satisfying these requirements. "Sufficient resources" shall be as defined in Article 8(4).

Such family members shall retain their right of residence exclusively on personal basis.

Article 13 Retention of the right of residence by family members in the event of divorce, annulment of marriage or termination of registered partnership

1. Without prejudice to the second subparagraph, divorce, annulment of the Union citizen's marriage or termination of his/her registered partnership, as referred to in point 2(b) of Article 2 shall not affect the right of residence of his/her family members who are nationals of a Member State.

Before acquiring the right of permanent residence, the persons concerned must meet the conditions laid down in points (a), (b), (c) or (d) of Article 7(1).

2. Without prejudice to the second subparagraph, divorce, annulment of marriage or termination of the registered partnership referred to in point 2(b) of Article 2 shall not entail loss of the right of residence of a Union citizen's family members who are not nationals of a Member State where:

(a) prior to initiation of the divorce or annulment proceedings or termination of the registered partnership referred to in point 2(b) of Article 2, the marriage or registered partnership has lasted at least three years, including one year in the host Member State; or

(b) by agreement between the spouses or the partners referred to in point 2(b) of Article 2 or by court order, the spouse or partner who is not a national of a Member State has custody of the Union citizen's children; or

(c) this is warranted by particularly difficult circumstances, such as having been a victim of domestic violence while the marriage or registered partnership was subsisting; or

(d) by agreement between the spouses or partners referred to in point 2(b) of Article 2 or by court order, the spouse or partner who is not a national of a Member State has the right of access to a minor child, provided that the court has ruled that such access must be in the host Member State, and for as long as is required.

Before acquiring the right of permanent residence, the right of residence of the persons concerned shall remain subject to the requirement that they are able to show that they are workers or self-employed persons or that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State, or that they are members of the family, already constituted in the host Member State, of a person satisfying these requirements. "Sufficient resources" shall be as defined in Article 8(4).

Such family members shall retain their right of residence exclusively on personal basis.

Article 14 Retention of the right of residence

1. Union citizens and their family members shall have the right of residence provided for in Article 6, as long as they do not become an unreasonable burden on the social assistance system of the host Member State.

2. Union citizens and their family members shall have the right of residence provided for in Articles 7, 12 and 13 as long as they meet the conditions set out therein.

In specific cases where there is a reasonable doubt as to whether a Union citizen or his/her family members satisfies the conditions set out in Articles 7, 12 and 13, Member States may verify if these conditions are fulfilled. This verification shall not be carried out systematically.

3. An expulsion measure shall not be the automatic consequence of a Union citizen's or his or her family member's recourse to the social assistance system of the host Member State.

4. By way of derogation from paragraphs 1 and 2 and without prejudice to the provisions of Chapter VI, an expulsion measure may in no case be adopted against Union citizens or their family members if:

(a) the Union citizens are workers or self-employed persons, or

(b) the Union citizens entered the territory of the host Member State in order to seek employment.

In this case, the Union citizens and their family members may not be expelled for as long as the Union citizens can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged.

CHAPTER IV Right of permanent residence

Section I Eligibility

Article 16 General rule for Union citizens and their family members

1. Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there. This right shall not be subject to the conditions provided for in Chapter III.

2. Paragraph 1 shall apply also to family members who are not nationals of a Member State and have legally resided with the Union citizen in the host Member State for a continuous period of five years.

3. Continuity of residence shall not be affected by temporary absences not exceeding a total of six months a year, or by absences of a longer duration for compulsory military service, or by one absence of a maximum of twelve consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.

4. Once acquired, the right of permanent residence shall be lost only through absence from the host Member State for a period exceeding two consecutive years.

Article 17 Exemptions for persons no longer working in the host Member State and their family members

1. By way of derogation from Article 16, the right of permanent residence in the host Member State shall be enjoyed before completion of a continuous period of five years of residence by:

(a) workers or self-employed persons who, at the time they stop working, have reached the age laid down by the law of that Member State for entitlement to an old age pension or workers who cease paid employment to take early retirement, provided that they have been working in that Member State for at least the preceding twelve months and have resided there continuously for more than three years.

If the law of the host Member State does not grant the right to an old age pension to certain categories of self-employed persons, the age condition shall be deemed to have been met once the person concerned has reached the age of 60;

(b) workers or self-employed persons who have resided continuously in the host Member State for more than two years and stop working there as a result of permanent incapacity to work.

If such incapacity is the result of an accident at work or an occupational disease entitling the person concerned to a benefit payable in full or in part by an institution in the host Member State, no condition shall be imposed as to length of residence;

(c) workers or self-employed persons who, after three years of continuous employment and residence in the host Member State, work in an employed or self-employed capacity in another Member State, while retaining their place of residence in the host Member State, to which they return, as a rule, each day or at least once a week.

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Article 18 Acquisition of the right of permanent residence by certain family members who are not nationals of a Member State

Without prejudice to Article 17, the family members of a Union citizen to whom Articles 12(2) and 13(2) apply, who satisfy the conditions laid down therein, shall acquire the right of permanent residence after residing legally for a period of five consecutive years in the host Member State.

Section II Administrative formalities

Article 21 Continuity of residence

For the purposes of this Directive, continuity of residence may be attested by any means of proof in use in the host Member State. Continuity of residence is broken by any expulsion decision duly enforced against the person concerned.