England and Wales High Court (Administrative Court) Decisions

Queen on the application of NIGEL EDWARD RUPERT McCOLLUM v. SECRETARY OF STATE FOR HOME DEPARTMENT [2001] EWHC Admin 40 (24th January, 2001)

[2001] EWHC Admin 40

IN THE HIGH COURT OF JUSTICE CO/569/1999

QUEEN'S BENCH DIVISION

(ADMINISTRATIVE COURT)

Royal Courts of Justice

Strand

London WC2

Wednesday, 24th January 2001

Wednesday, 24th January 2001

MR JUSTICETURNER:

[1] The applicant and Mr Renato Lozano are in a long term single sex relationship. The applicant is a citizen both of the United Kingdom and the Republic of Ireland. He wishes Mr Lozano to come to live with him in the United Kingdom, as his spouse or as a member of his family. The respondent has refused permission to Mr Lozano on the grounds that he is not entitled to be treated as `spouse' or a family member. This forms the substance of the present challenge.

[2] From June 1994 until the end of July 1998 Mr Lozano, who is Brazilian by birth, was lawfully in the United Kingdom first as a visitor and secondly as a student. He then returned to his native country. On 28 November of the latter year Mr Lozano returned to the United Kingdom and once more sought leave to enter as a visitor. He was examined by an immigration officer. He was refused entry because the Immigration Officer was not satisfied that the true purpose of the intended entry was as `visitor'. Temporary permission was granted, however, pending arrangements being made for Mr Lozano's removal. By letter dated 1 December of the same year, Mr Lozano sought leave to enter "on the basis of a long term relationship with" (the applicant). Both were subsequently interviewed and leave to enter was refused to Mr Lozano on the grounds that leave to enter on this basis was not a purpose covered by the Immigration Rules; see HC 395, Rule 320(1).

[3] In a policy statement which became effective on 13 December 1997, the Secretary of State announced the policy Concessions on Unmarried Partners which covered common law and same sex relationships. So far as is relevant to this case, the requirements which were required to be satisfied under the Concession were satisfied save as to three matters. These were (v) that there would be adequate accommodation for the parties without recourse to public funds (vi) the ability of the couple to maintain themselves without recourse to public funds and (viii) that the applicant, in this case Mr Lozano, held a valid entry clearance for entry in the capacity in which he was seeking to enter the United Kingdom. A paragraph of the policy document, under the cross heading Granting leave to enter, states that

A person seeking leave to enter the United Kingdom as the unmarried partner of a person settled in the United Kingdom, or who is on the same occasion being admitted for settlement, may be admitted for an initial period of twelve months under this concession provided a valid United Kingdom entry clearance for entry in this capacity is produced to the Immigration Officer on arrival.

[4] The position of the Secretary of State, on this application, is clear and straightforward, that is to say that if the only obstacle to the grant of exceptional leave is the absence of entry clearance, it would be unfair to those others who abide by the rules and make proper application, if the requirement were to be waived in Mr Lozano's case. It would encourage others to attempt to jump the queue, if this requirement were not firmly enforced. The resultant delay to Mr Lozano need not be great while the application was processed and no great hardship would accrue to him. Such interference with his private life that the adoption of this procedure would cause can be justified by the need to maintain firm and fair immigration policies.

[5] The arguments advanced in support of the present application can be summarised as follows:

1. A person who is a co-habitee, is in a long term relationship and is in a same sex relationship is a "member of the family" for the purposes of Article 10(2) of the Council Regulations 1612/68;

2. The denial of qualifying status as "family member" under Article 7 of Council Regulations 1612/68 is inconsistent with the recognition, in the national law of the United Kingdom, of a same sex relationship which has lasted two years or more as one "akin to marriage"; see Policy document above;

3. The denial of a right of residence to Mr Lozano interferes with the applicant's rights of residence under Article 39 of the Treaty of Rome since it constitutes an infringement of Article 8 of the ECHR;

4. The removal of Mr Lozano would constitute an irrational exercise of the discretion vested in the Secretary of State as being inconsistent with respect for his private life.

[6] Article 39 of the Treaty provides for the freedom of movement of workers to be secured within the Community and the abolition of discrimination based on nationality. Council Directive 68/360 provides for the abolition of restrictions on the movement and residence of nationals and of members of their families; Article 1. By Article 3 it is provided that

1. Member States shall allow the persons referred to in Article 1 [nationals and members of their families] to enter their territory simply on production of a valid identity card or passport.

2. No entry visa or equivalent document may be demanded save from members of the family who are not nationals of a member state. Member states shall accord to such persons every facility for obtaining any necessary visas.

Article 7 of Regulation (EEC) 1612/68 (above) provides that

1. A worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from national workers by reason of his nationality ...

2. He shall enjoy the same social and tax advantages as national workers.

Article 10 (above) provides that

1. The following shall, irrespective of their nationality, have the right to install themselves with a worker who is a national of a Member State and who is employed in the territory of another Member State:

(a) his spouse and their descendants ...

(b) dependant relatives in the ascending line ...

2. Member States shall facilitate the admission of any member of the family not coming within the provisions of paragraph 1 if dependant on the worker referred to above or living under his roof in the country whence he comes.

The applicant founds himself in part on the provisions of this Article and contends that it is directly effective, a proposition which is contested by the respondent. In any event, the applicant also contends that Article 39 is directly effective so that if this submission is upheld, he does not need to rely on the provisions of Article 10(2), above.

Attention was also drawn to the provisions of section 7 of the Immigration Act 1988 which provides that a person shall not under the (Immigration Act 1971) require leave to enter or remain in the United Kingdom in any case in which he is entitled to do so by virtue of an enforceable Community right or of any provision made under section 2(2) of the European Communities Act 1972.

Reference was then made to the provisions of the Immigration (European Economic Area) Order 1994 which provides by Article 2 that

`EEA family permit' means an entry clearance, issued free of charge, to a family member who wishes to install himself in the United Kingdom with a qualified person.

`family member' in relation to an EEA national means-

(a) that national's spouse;

(b) a descendant of that national;

(c) a dependant relative in the ascending line of the EEA national or his spouse.

[7] The origins of these definitions are clearly to be found in the provisions of Article 10(1) which it was the purpose of the Order to implement. In order to be able to take advantage of these provisions, a person who claims to be a family member of a national must, in order that he should be admitted to the United Kingdom, produce on arrival a valid national identity card issued by an EEA State or a valid passport and "if required" proof that he is a family member; see Article 3(2) of the Order. However, a family member who is not an EEA national must also hold, if he is a visa national, an EEA family permit; Article 3(3).

[8] So it was submitted that, giving effect to the right of free movement in the context of United Kingdom law, it is necessary to interpret it in a manner which conforms to contemporary norms of acceptability. It was accepted, however, that for the purposes of the present application, the applicant could not succeed in proving that Mr Lozano was his spouse within the meaning of Article 10(1). But it was submitted that both Community and national law ought to reflect the reality of single sex relationships as being consistent, or compatible, with the concept of marriage. The alternative should be rejected if the result was to produce a situation in which there was discrimination on the grounds of sex. Since there was no definition as to those who could be family members for the purposes of Article 10(2), it was open to Member States in accordance with the principles of subsidiarity to come to their own conclusions and legislate on the topic. When doing so that they should take into account developments within society as it has developed in each of the Member States. One of the problems of this approach is that it ignores the definition of `family member' contained in Article 2 of the EEA Order (above). The riposte to this was that since Article 10(1) allows members of migrant workers' families to enter the territory of a Member State, it would assist that worker's integration within that State if his family, however constituted, were permitted to accompany him there.

[9] It followed that Article 10 was capable of being interpreted as going beyond formal legal relationships and should bear a wide meaning and not be restricted as the Order of 1994 seeks to do. The aims of the Article would not be compromised if long term common law or single sex relationships were to be brought within its scope. It was logical that, given that the Secretary of State was prepared to recognise long term single sex relationships as being "akin to marriage" for the purposes of the Concession, then the label `family member' could and should be attached to them. Such an approach would also be consistent with the recent decision in the House of Lords in Fitzpatrick v. Sterling Housing Association [1999] 3 WLR 1113 in which it was held that the survivor of an unmarried couple was capable of benefiting from the transmission provisions of the Rent Acts on the death of the other partner.

[10] It was further submitted that the Secretary of State had failed to implement the provisions of Article 10(2) by the making of the EEA Order by failing to provide that same sex relationships should give rise to a right to claim that each member of that relationship was a member of the family of the other. By so failing he had not facilitated Mr Lozano's entry into the United Kingdom as required by Article 3(2), above. Reference was made to the commentary in Macdonald's Immigration Law and Practice 94^th Edition) p198 where it is suggested that the Order (above)

fails to implement the full ambit of the definition of family members, and continued reliance on the Regulation will need to be made. However, the interpretation of the Regulation cannot extend to unmarried couples being treated as if they were spouses, but such persons may qualify for admission under the principle of non-discrimination, if national law makes provision for the entry or stay of unmarried partners of its own nationals.

In a footnote Macdonald goes on to say that the Minister, in debate, accepted that continued reliance on the regulation would be necessary for other dependent family members.

[11] Finally, on this issue, it was submitted that insofar as the 1994 Order did not permit the treatment of a same sex partner as being capable of constituting him as a member of the family, the United Kingdom had not complied with its Community obligation to facilitate the entry of Mr Lozano according to the intent of the Regulation.

[12] A further submission was made on the basis of the provisions of Article 8 of the ECHR (respect for family life). Reference was made to the decision in Commission v. Germany Case C249/86 [1989] ECR 1263 where it was held that Regulation 1612/68 should be interpreted in the light of this requirement. There was no doubt, it was said that same sex relationships were capable of being private life within the meaning of the Article. Given the legislative disadvantages and hostile environment which homo-sexual relationships enjoyed in Brazil, if the couple were forced to live there, that would constitute interference with their private lives. The effect of the decision of the Secretary of State was, therefore, to interfere with the applicant's private life.

[13] The first submission made on behalf of the Secretary of State was that Article 10(2) lacked sufficient clarity, precision and unconditionality to be directly effective; see Wyatt and Dashwood European Community Law [3^rd edition] p60 which sufficiently summarises the current state of the law on this topic in the following terms:

The Van Gend en Loos judgment affirms the existence of the "new legal order" in which individuals as well as Member States, may have rights and obligations, and it lays down the criteria to be applied in deciding whether or not a particular provision may be invoked by individuals in national courts. These criteria were to be applied subsequently in numerous cases, and were summed up as follows by Advocate General Mayras in Reyners v Belgian State:

- the provision in question must be sufficiently clear and precise for judicial application;

- it must establish an unconditional obligation;

- the obligation must be complete and legally perfect, and its implementation must not depend on measures being subsequently taken by Community Institutions or Member States with discretionary power in the matter.

The phrases "facilitate admission" and "member of the family" are neither precise nor are they unconditional in the requirements which they impose. It is plain that before they could be invoked by an individual against the State, subsequent measures would have to be taken which would themselves involve an element of discretion as to the manner of their implementation.

[14] It was further submitted that the Luxembourg Court had never held that an unmarried partner, whether hetero- or homo-sexual, was a family member for the purposes of Article 10(2). The case of Reed v Netherlands [1986] ECR 1283 was illustrative. The Court there held that the Dutch policy of permitting unmarried partners of persons settled in the Netherlands was a social advantage within the meaning of Article 7(2). In his submissions to the Court, the Advocate General said at p1292

If the issue of whether or not the companions of workers are entitled to accompany them were to be determined in accordance with the prohibition of discrimination laid down in Article 7(2) ... the result might differ from on Member State to another. The rules laid down in Article 10 regarding the worker, on the other hand, are uniform in all Member States. It is difficult, therefore, to find support in the scheme of Regulation 1612/68 for the proposition that such a right of accompaniment should be drawn from Article 7 of the regulation. The granting of such a right to companions would constitute an extension of the category of persons to whom Article 10 of the regulation applies, an extension which lies within the competence of the Council, not of the Court.

In its judgment, the Court said at paragraph:

8. The third question (which concerns the interpretation of Article 10) should be dealt with first.

9. Miss Reed argues that, in the light of legal and social developments, in applying Article 10 ... and in particular the word `spouse' in that article, to circumstances such as those of this case unmarried companions must in so far as possible be treated as spouses

10. The Netherlands Government points out that the third question concerns the interpretation of a provision of a regulation which has direct effect in all Member States; that provision must therefore be interpreted in the Community context. The Community legislature used the word `spouse' in the sense given to that word in family law. When, in support of a dynamic interpretation, reference is made to developments in social and legal conceptions, those developments must be visible in the whole of the Community; such an argument cannot be based in social and legal developments in only one of the Member States. There is no reason, therefore, to give the term `spouse' an interpretation which goes beyond the legal implications of the term, which embraces rights and obligations which do not exist between unmarried partners.

11. The Commission points out that there is no provision in Community law which defines the term `spouse' and `marital relations'. In the Community as it now stands it is impossible to speak of any consensus that unmarried companions should be treated as spouses. According to the Commission, therefore, the problem cannot be resolved by means of a broad construction of Article 10 ... .

12. According to Article 189 of the EEC Treaty, (the Regulation) has general application, is binding in its entirety and is directly applicable in all Member States.

13. It follows that an interpretation given by the Court to a provision of that regulation has effects in all of the Member States, and that any interpretation of a legal term on the basis of social development must take account of the situation in the whole Community, not merely one Member State.

14. Article 10 ... provides that certain members of the `family' of a worker, including his spouse, irrespective of their nationality, `have the right to install themselves with a worker who is a national of one Member State and who is employed in the territory of another Member State'.

15. In the absence of any indication of a general social development which would justify a broad construction, and in the absence of any indication to the contrary in the regulation, it must be held that the term `spouse' in Article 10 ... refers to a marital relationship only.

[15] It was submitted that the decision in Fitzpatrick (above) could not assist the applicant here because it involved the United Kingdom Court making its own interpretation of the meaning of the word `family' in the context of a domestic statute. What the court is here concerned to decide is what is the meaning of that word according to Community law. Article 39 of the Treaty could not assist the applicant since it did not refer to family members. There is secondary legislation, which has already been referred to, which makes provision for family members and it is to that source of law to which it was necessary to turn.

[16] An alternative submission was that even if Article 10 was capable of having direct effect, it did not prohibit states from requiring an entry clearance before admitting a family member who was not an EC national. The obligation under Article 10(2) did not confer on the applicant any right to entry without the requirement of an entry permit. An example of this was to be found in Council Directive 68/360 referred to above. The submission was that if Mr Lozano was a member of the applicant's family, then he was caught by the provisions of Article 3.2. If he was not, then the question does not arise.

[17] Finally, it was submitted that the Strasbourg Court has consistently held homo-sexual partners to be outside the scope of family life. In B v. United Kingdom (application 16106/90) (1990) 64 DR 278. In that case the applicant had complained of the decision of the Secretary of State that he should be removed from the United Kingdom to a jurisdiction where he would be subject to persecution and imprisonment for homo-sexual activities. At p282, the Court said

In the present case the Commission notes that the applicant formed his relationship with Mr R at a time when he was aware that he had no right to remain in the United Kingdom ... . Moreover, the Commission recalls its previous case-law concerning the deportation of persons with established lesbian or homo-sexual relationships. The Commission has held that such relationships involve private life within the meaning of private life within Article 8 and that, although lawful deportation will inevitably have repercussions on such relationships, it cannot in principle be regarded as an interference with the respect for private life given the State's right to impose immigration controls and limits ...

The Commission has previously held that no discrimination exists contrary to this provision where the Immigration Rules give priority and better guarantees to established couples living in a family relationships such as lesbian or homo-sexual relationships ...

This decision is consistent with the observations of the Court in Reed (above; see paragraphs 10 and 11 of the judgment.

[18] In reply, it was submitted that requiring a person to leave the United Kingdom for the purpose of obtaining entry clearance could not be interpreted as facilitating the entry of that person to the United Kingdom and reference was made to the case of R v. Pieck 157/79 in which it was held that such a requirement was inconsistent with Article 3.1 of the Directive 68/360 (above).

[19] In my judgment, despite the ingenious submissions which were advanced on behalf of the applicant, this application must fail. The submissions made on behalf of the Secretary of State are compelling. There is clear authority which demonstrates that neither the Directive nor the Regulation which are in issue in this case can be interpreted so as to permit Mr Lozano to be treated either as `spouse' or as a `member of the family' of the applicant. This is clear both in domestic as well as EC law. What has to be remembered is that Mr Lozano is not a national of any State in the EC. His rights to enter the United Kingdom are, therefore, governed by the immigration laws and practices of the United Kingdom as, and to the extent, modified by Community legislation. That legislation, I am satisfied, is not `directly effective' in the United Kingdom since it does not meet the necessary criteria for being so regarded. Neither is there any basis, in my opinion, for the decision of the immigration officer to be impugned on the ground that he had exercised his discretion not to grant the applicant exceptional leave to remain for an impermissible reason. The consequence of this decision is not that the applicant and Mr Lozano will ever be prevented from living together in the United Kingdom. It is that Mr Lozano will have to conform to the requirements of the Immigration Acts and obtain entry clearance in the same way as the national of any non-EC country would have to do.

MR JUSTICE TURNER: I have made available to the parties a copy of the draft judgment which was proposed to be handed down. They have made various editorial suggestions, some of which I have accepted, some of which I have rejected, some of which I have amended, and now I formally hand down the judgment.

MISS HARRISON: My Lord, I rise because I have had an opportunity to discuss with my learned friend the question of costs.

MR JUSTICE TURNER: Yes.

MISS HARRISON: Your Lordship may recall that, in the first place, the Secretary of State ran an argument that the applicant did not have community law rights.

MR JUSTICE TURNER: That is right.

MISS HARRISON: Because he was a dual national.

MR JUSTICE TURNER: He abandoned that argument after a day.

MISS HARRISON: He abandoned that argument, my Lord, that is right. However, given the fact that the Secretary of State has succeeded in respect of the other arguments, what we propose is the sensible order is no order for costs, but there be a legal aid taxation of the claimant's costs.

MR JUSTICE TURNER: No longer, Miss Harrison. A detailed assessment for the purposes of legal aid.

MISS HARRISON: My Lord, I was going to add, and a detailed assessment of the applicant's community legal services funding. I think that might be the full title.

MR JUSTICE TURNER: That is even more accurate.

MISS HARRISON: Yes.

MR JUSTICE TURNER: Provided a certificate has been lodged.

MISS HARRISON: My Lord, I anticipate that it has but would make that order conditional on the lodging of the certificate.

MR JUSTICE TURNER: Any submissions as to the principle, Mr Kovats.

MR KOVATS: No, my Lord.

MISS HARRISON: My Lord, the only other application, then, is the question of whether your Lordship would grant leave to appeal to the Court of Appeal. We submit that this case does raise important questions of law concerning, firstly, whether or not the relevant regulation is of direct effect. This is a decision that your Lordship has made that has repercussions beyond this case and is not a difficult, we submit, question of community law; and that the central question of whether or not a partner in a long-term, same-sex relationship can constitute a member of the family is likewise a question of law suitable for the Court of Appeal to determine, given its general importance and its, with respect, difficulty, we submit.

We do finally observe that whilst your Lordship has said that Mr McCollum's partner can return to Brazil and obtain entry clearance, and that may solve the problem, it does not resolve the question of whether or not he is entitled to return to the United Kingdom exercising the, in some respects, superior rights attaching to community law rather than to domestic law.

So we say that that does not answer this application, with the greatest of respect, so if your Lordship can say that those two issues of law which we say do arise can fall to be decided, perhaps in another case.

So for those reasons, my Lord, we say that this is an appropriate case for the Court of Appeal to consider.

MR KOVATS: My Lord, in respect of the first point, I would submit that the issue of direct effect is not material because Article 3(2) of Regulation 68/360 says in terms that entry clearance may be required, so whether or not direct effect applies does not get the applicant home.

With regard to the second point, in my respectful submission, your Lordship's judgment is clear and accurately builds upon a considerable body of existing case law in this area, and there is no realistic prospect that the Court of Appeal will find a different conclusion.

MISS HARRISON: My Lord, can I just make one observation about the requirement of entry clearance. Even if your Lordship is right, in that the applicant should go to Brazil to obtain entry clearance, the entry clearance officer needs to know on what basis he can properly admit this person. Obviously, if your Lordship's judgment stands, he will have to rule that this person has no entitlement to community law rights. So that question is a live question in the case. Even as a matter of practicality, he has to return to Brazil to apply for it.

MR JUSTICE TURNER: But his United Kingdom rights remain.

MISS HARRISON: My Lord, yes. It would be --

MR JUSTICE TURNER: -- in a relationship.

MISS HARRISON: It will comply with the policy, that is right. But that still does not answer the question of whether or not he is entitled to different, and as I have indicated to your Lordship superior, rights to remain as a community law.

MR JUSTICE TURNER: On the facts of this case, it seems to me to be a hypothetical. I do not grant leave.

MISS HARRISON: My Lord.

MR JUSTICE TURNER: Permission.

MISS HARRISON: I am grateful.

MR JUSTICE TURNER: I grant the order for detailed assessment on the condition that the certificate or other document is lodged with the Crown Office by close of business on Friday.

MISS HARRISON: I am grateful, my Lord.

MR JUSTICE TURNER: Thank you very much.