England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CLERKENWELL AND SHOREDITCH COUNTY COURT
HIS HONOUR JUDGE JOHN MITCHELL
CASE No. 3EC00587

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/05/2014

LORD JUSTICE VOS:

1. Brandon Mossan ("Brandon") was born on 2^nd October 2008. He is now just over 5½ years old, but was 4¼ years old when the review decision that is in issue in this case was made by the respondent, the London Borough of Lambeth ("Lambeth" or the "respondent"). Brandon was born in the UK and is a British citizen. His mother is the appellant, Ms Maureen Hines (the "mother" or the "appellant"), who is a Jamaican citizen who came to the UK in April 2002, but whose permission to remain in the UK expired in January 2009. Brandon's father is Nico Mossan (the "father"), a national of the Côte d'Ivoire, who has the EU right to permanent residence in the UK. The father and mother no longer live together, and the mother is Brandon's primary carer, but Brandon spends about two nights a week with the father being cared for by him.
2. The question in this second appeal is whether the appellant is entitled to housing assistance under the Housing Act 1996 (the "1996 Act"). Ms Samuels (the "reviewer"), Lambeth's official reviewer, made a review decision under section 202 of the 1996 Act on 25^th January 2013 determining that the appellant was ineligible for housing assistance because she was subject to immigration control under section 185(2) of the 1996 Act. This decision was based primarily on the finding that the reviewer did not consider it an unreasonable expectation for the father to look after Brandon in the event of the mother leaving the UK due to her immigration status. On 25^th June 2013, HH Judge Mitchell dismissed the mother's appeal under section 204 of the 1996 Act.
3. Two issues have been raised on this appeal, for which permission was given by Arden LJ on 8^th November 2013, namely:-

i) Whether the judge ought to have applied a greater intensity of review in respect of the reviewer's decision, and

ii) Whether, in considering whether the child would be unable to remain in the UK/EU if the mother were forced to leave the UK/EU, the judge ought to have considered whether it would be in the child's best interests to continue to reside in the UK/EU.

4. It should first be noted that the appeal against the reviewer's decision was brought under sections 204(1) and (3) of the 1996 Act, which provide that the appellant may appeal "on any point of law arising from the [review] decision", and that the county court may confirm, quash or vary the reviewer's decision as it thinks fit. The second appeal to this court is effectively another appeal against the reviewer's decision, not simply an appeal against the judge's decision, and this court has the same powers as the county court had under section 204(3).

The relevant regulations

5. Regulation 15A(4A) of the Immigration (European Economic Area) Regulations 2006/1003 (the "Immigration Regulations"), which was inserted with effect from 8^th November 2012 by the Immigration (European Economic Area) (Amendment) (No.2) Regulations 2012/2560, provides for a derivative right of residence for primary carers of British citizens as follows:-

"(1) A person ('P') who is not an exempt person and who satisfies the criteria in paragraph (2), (3), (4) (4A) or (5) of this regulation is entitled to a derivative right to reside in the United Kingdom for as long as P satisfies the relevant criteria.

...

(4A) P satisfies the criteria in this paragraph if—

(a) P is the primary carer of a British citizen ('the relevant British citizen');

(b) the relevant British citizen is residing in the United Kingdom; and

(c) the relevant British citizen would be unable to reside in the UK or in another EEA State if P were required to leave".

6. The core question for the reviewer was that raised by regulation 15A(4A)(c) above, namely whether Brandon would be "unable to reside in the UK or in another EEA State if [the mother] were required to leave [the UK]".
7. Regulation 15A(4A) was inserted to comply with the interpretation of the Court of Justice of the European Union ("CJEU") of article 20 of the Treaty on the Functioning of the European Union ("TFEU") in Ruiz Zambrano v. Office National de l'Emploie [2012] QB 265 ("Zambrano"), where the Grand Chamber of the CJEU held that:-

i) Article 20 of the TFEU "precludes national measures which have the effect of depriving citizens of the European Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the European Union" (paragraph 42); and

ii) A refusal to grant a right of residence to a third country national with dependent minor children in the member state where those children are nationals and reside has such an effect (paragraph 43), because "[i]t must be assumed that such a refusal would lead to a situation where those children, citizens of the European Union, would have to leave the territory of the European Union in order to accompany their parents".

8. In Harrison v. Secretary of State for the Home Department [2012] EWCA Civ 1736 ("Harrison"), to which I shall return, Elias LJ (with whom Ward and Pitchford LJJ agreed) held at paragraph 63 that the Zambrano principle did not cover anything short of a situation where the EU citizen is forced to leave the territory of the EU.

The judge's decision

9. In a concise and accurate judgment, the judge held that an appeal under section 204 of the 1996 Act could only be brought on administrative law grounds, that the reviewer had applied the correct legal test, and that her decision was not one that could be regarded as Wednesbury unreasonable (Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223). The judge cited relevant passages from Zambrano, Harrison, and from Baroness Hale's judgment in ZH (Tanzania) v. Secretary of State for the Home Department [2011] 2 AC 166 ("ZH (Tanzania)") concerning article 3.1 of the United Nations Declaration on the Rights of the Child 1989 requiring that the best interests of the child should be a primary consideration.
10. The judge held at paragraph 8 of his judgment that the factual question that the reviewer had to answer was: "If the appellant were required to leave the United Kingdom, would Brandon be unable, as a matter of practicality, to continue to reside here". Then he said this in paragraph 21:-

"I am satisfied, having regard to the dicta in Harrison, that the Appellant is entitled to accommodation only if Brandon would be effectively compelled to leave the United Kingdom if she left. However, what amounts to circumstances of compulsion may differ from case to case. The welfare and individual physical and emotional needs and circumstances of the child have to be considered. Those circumstances must include the impact which separation from the primary carer would have on the child. The younger and more dependent the child, the more likely it is that the child would also have to leave. However, the test remains a clear one. The decision maker is not required to consider whether it would be best for the child to remain with his primary carer – the welfare of the child is not the paramount consideration. Although less than desirable, the child might be able to be looked after – to the extent that his age and other circumstances made him dependent on the care of another person – by someone other than the current primary carer. It would only be if no adequate arrangements could be made, that the child would effectively have to leave".

11. Whilst Mr Matthew Hutchings's, counsel for Lambeth's, basic submission was that the reviewer and the judge had applied the right test, he accepted, I think, that the last sentence of that passage would be misinterpreted if it were thought to mean that any other "adequate arrangements" such as adoption or foster care might suffice. The adequacy of the arrangements with which the reviewer was concerned was simply the care of the father, Brandon's other existing (subsidiary) carer.
12. Against the above background, I turn to deal with the two grounds of appeal, for which permission to appeal has been given.

Ought there to be a greater intensity of review in respect of the reviewer's decision?

13. Mr Adrian Berry, counsel for the appellant, accepts that an appeal under section 204 of the 1996 Act is to be scrutinised on judicial review principles (see Runa Begum v. Tower Hamlets London Borough Council [2003] 2 AC 430 ("Begum") per Lord Bingham at paragraph 7, Lord Hoffmann at paragraphs 48-50, and Lord Millett at paragraphs 98-99). But he submits that at least Lord Hoffmann in Begum did not rule out a more intensive review in cases other than those under article 6 of the European Convention on Human Rights ("ECHR"), and that the position is different here because the appellant is entitled to rely on an EU law right under article 20 of the TFEU. Mr Berry also points to Professor Paul Craig's text on EU Administrative Law 2006 at pages 429-431 and 435-6 suggesting that the general approach of the EU courts to these issues is to substitute its own judgment where required on an assessment of whether the facts as found mean that the appellant fell within the scope of the EU law protection.
14. In my judgment, however, this question is already decided by the House of Lords' decision in Begum where Lord Bingham said at paragraph 7 that he could see no warrant for applying in the context of the section 204 appeals notions of "anxious scrutiny" or the enhanced approach to judicial review described by Lord Steyn in R (Daly) v. Secretary of State for the Home Department [2001] 2 AC 532 at pages 546-8. As Lord Millett pointed out at paragraph 99 in Begum, the controlling authority on the scope of an appeal on a point of law is Edwards v. Bairstow [1956] AC 14.
15. In my judgment, the fact that article 20 of the TFEU may be relevant to the consideration of the question raised by regulation 15A(4A)(c) of the Immigration Regulations does not change the position. As appears from my consideration of the second ground of appeal below, the legal test to be adopted has been clearly established in Harrison. The fact that the application of that test may be difficult on the facts in particular cases does not warrant the application of a greater intensity of review than the 1996 Act and the authorities envisage.

In considering whether the child would be unable to remain in the UK/EU if the mother were forced to leave the UK/EU, should the judge have considered whether it would be in the child's best interests to continue to reside in the UK/EU?

16. Mr Berry submitted that, because article 20 of the TFEU was engaged in relation to the application of the test in regulation 15A(4A)(c) of the Immigration Regulations, the test should be applied as a matter of the implementation of EU law in accordance with the fundamental rights of the child (see article 51 of the Charter of Fundamental Rights of the European Union (2010/C83/02) (the "Charter")). He relied on article 7 (respect for private and family life) and article 24 (the rights of the child) of the Charter. Article 24(3) in particular provides that "[e]very child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests".
17. In these circumstances, Mr Berry submitted, as he had to the judge, that the reviewer's decision was predicated on Brandon remaining in the UK with his father, whilst his mother was required to leave the UK and the EU. This, he said, was inconsistent with Brandon's right to family life and his right to maintain regular direct contact with both his parents. It was insufficient for the reviewer to allude to other ways of contacting Brandon from overseas such as skype or telephone. Mr Berry relied strongly on Baroness Hale's speech in ZH(Tanzania).
18. Mr Hutchings's response to Mr Berry's argument on this point was startlingly simple. He submitted that it was impermissible to substitute the question of whether it would be in the child's best interests to continue to reside in the UK with care from both his parents for the statutory test contained in regulation 15A(4A)(c) of the Immigration Regulations of whether the child is unable to remain in the UK (as a matter of practicality).
19. In dealing with these competing positions, it is necessary to look first at the Court of Appeal's decision in Harrison. As I have said, Elias LJ's starting point in that case was that the Zambrano principle did not extend to cover anything short of the a situation where the EU citizen is forced to leave the territory of the EU (paragraph 63). Elias LJ then dismissed the notion that the CJEU in Zambrano was leaving open the possibility that the doctrine might apply "more widely and loosely" (paragraph 64). In paragraph 66, Elias LJ makes clear that Dereci v. Bundesministerium für Inneres (Case C-256/11) [2012] 1 CMLR 45 (paragraphs 67-72) demonstrated that the reduction of the enjoyment of family life by the family members who remain when non-EU citizens leave was not sufficient to engage EU law. At paragraph 67, Elias LJ explained the matter as follows:-

… I accept that it is a general principle of EU law that conduct which materially impedes the exercise of an EU right is in general forbidden by EU law in precisely the same way as deprivation of the right. But in my judgment it is necessary to focus on the nature of the right in issue and to decide what constitutes an impediment. The right of residence is a right to reside in the territory of the EU. It is not a right to any particular quality or life or to any particular standard of living. Accordingly, there is no impediment to exercising the right to reside if residence remains possible as a matter of substance, albeit that the quality of life is diminished. Of course, to the extent that the quality or standard of life will be seriously impaired by excluding the non EU national, that is likely in practice to infringe the right of residence itself because it will effectively compel the EU citizen to give up residence and travel with the non-EU national. But in such a case the Zambrano doctrine would apply and the EU citizen's rights would have to be protected (save for the possibility of a proportionate deprivation of rights). Accordingly, to that extent that the focus is on protecting the substance of the right, that formulation of the principle already provides protection from certain interferences with the enjoyment of the right".

20. In paragraphs 68-70 in Harrison, Elias LJ gave no warrant for extending the Zambrano principle or the application of EU law so as to vary the test that he had already intimated.
21. Accordingly, in my judgment, the judge was right, applying Harrison, to conclude as he did in paragraph 21 of his judgment that the appellant was only entitled to accommodation if Brandon would be effectively compelled to leave the United Kingdom if she left. He was also right to point out that what amounts to circumstances of compulsion may differ from case to case. As Elias LJ said: "to the extent that the quality or standard of life [of the EU citizen] will be seriously impaired by excluding the non EU national, that is likely in practice to infringe the right of residence itself because it will effectively compel the EU citizen to give up residence and travel with the non-EU national". It is for this reason that the welfare of the child in this case comes into play, again as the judge held.
22. In my judgment, however, the welfare of the child cannot be the paramount consideration because that would be flatly inconsistent with the statutory test which is whether the child would be unable to reside in the UK if the mother left. It will, in normal circumstances, be contrary to the interests of a child for one of its parent carers, whether the primary carer or not, to be taken away from him or her. It would certainly be contrary to article 24(3) of the Charter. But Mr Berry shied away from contending that the Immigration Regulations were inconsistent with EU law or that they should be read down so as to comply with it.
23. I have no doubt that the test applicable under regulation 15A(4A)(c) is clear and can be given effect without contravening EU law. The reviewer has to consider the welfare of the British citizen child and the extent to which the quality or standard of his life will be impaired if the non-EU citizen is required to leave. This is all for the purpose of answering the question whether the child would, as a matter of practicality, be unable to remain in the UK. This requires a consideration, amongst other things, of the impact which the removal of the primary carer would have on the child, and the alternative care available for the child.
24. There was much discussion in argument as to the kind of alternative care that might be required in order to avoid the conclusion that the child would be forced to leave. It would be undesirable, I think, for the court to lay down any guidelines in this regard, but it was, as I have said, common ground that an available adoption or foster care placement would not be adequate for this purpose. That is because the quality of the life of the child would be so seriously impaired by his removal from his mother to be placed in foster care that he would be effectively compelled to leave. I do not, however, think that all things being equal the removal of a child from the care of one responsible parent to the care of another responsible parent would normally be expected so seriously to impair his quality and standard of life that he would be effectively forced to leave the UK. Apart from anything else, he would, even if he did leave, still only have the care of one of his previously two joint carers.
25. In my judgment, therefore, the second ground of appeal fails, because it is clear from Harrison that the reviewer and the judge applied the right test. The reviewer was not obliged to consider Brandon's interests as paramount, though his interests were indeed to be taken into account as in fact happened. The law is clear from Zambrano and Derici as applied in Harrison and there is therefore no need for the point to be referred to the CJEU for a preliminary ruling as suggested by the appellant.

The merits of the case

26. I have now dealt with the two grounds of appeal for which permission was given. But I should not leave this case without mentioning that, when the argument began, the court invited argument on the question of whether the reviewer's decision could be shown to have fallen foul of Wednesbury principles because the reviewer had not taken any proper account of two important relevant factors namely (i) the effect on the 4 year-old Brandon of being removed from his mother who had brought him up all his life, and (ii) the fact that the father worked 12-hour night shifts and would not be likely to be willing or able to care for Brandon if the mother left the UK. It was suggested that the reviewer ought not to have speculated as to whether the father could look after the child by giving up his job, based on her experience, but should have relied on the actual evidence that he could not do so or obtained some further evidence from Lambeth's social services.
27. Ultimately, I have concluded that there was no substance to these points. I can explain my reasons quite briefly. The only basis upon which the reviewer was considering the adequacy of the father's ability to care for Brandon was because it was obvious that it would be a bad thing for him to have to leave his mother, and the reviewer needed to establish whether the effect would be so bad that Brandon would be unable to remain in the UK. At one end of the spectrum, there would be a situation in which the father would refuse or be unable to care for Brandon at all – in that case he would obviously be compelled to leave to follow his mother. At the other end of the spectrum, the father would offer a very satisfactory home for Brandon which would not seriously impair his quality or standard of life, in which case he would be well able to stay in the UK. In this context, it was not surprising that the reviewer did not spend much time explaining how bad it would be for a 4-year old child to be separated from his mother. That was a given.
28. As to the second point on the father's ability or willingness to give up his established job (which he had held for 7 years), the reviewer was not really speculating, but evaluating the various different statements that the father had made against the background of her experience of single fathers generally. It is hard to know what further evidence she could have obtained, when the father actually had cared for Brandon two days and nights per week, and had said variously that the only reason he could not care for Brandon was that he worked nights, but that also he loved his son and wanted the best for him, and that he was morally responsible for his welfare. As Lord Neuberger said in Holmes Moorhouse v. Richmond-upon-Thames London Borough Council [2009] UKHL 7 at paragraph 42: "a judge should not adopt an unfair or unrealistic approach when considering or interpreting such review decisions".
29. In any event, even if the reviewer had gone wrong in deciding that Brandon could live with the father when she made her review, it was common ground that by the time of the appeal to the judge the father had been made redundant and did not have a job, so all impediments to his looking after Brandon had been removed. Thus, even if relief might have been appropriate, the judge would not have granted any in the light of the changed circumstances. Neither party sought to suggest that there had been any more recent change of circumstances, so we must assume that the father is still without a job and therefore able to care for Brandon. This is a case where the father is responsible and caring, and as Mr Hutchings put the matter: "there will be few cases in which there is a better alternative carer than this one".
30. In these circumstances, even if there had been a broad Wednesbury appeal to us, which there was not, I would have concluded that it could not succeed.

Disposal

31. For the reasons I have sought shortly to give, I would dismiss this appeal.

Lord Justice Patten:

32. I agree

Lord Justice Sullivan:

33. I also agree