Strand, London, WC2A 2LL
B e f o r e :
| TARISAI GLADYS KUNGWENGWE
|- and -
| SECRETARY OF STATE FOR THE HOME DEPARTMENT
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Caroline Neenan (instructed by the Treasury Solicitor) for the Defendant
Crown Copyright ©
Mr Justice Wilkie :
"Our client first arrived in the United Kingdom on 18 December 1992. She currently has leave to remain in the United Kingdom until 7 October 2004, as she has been in the United Kingdom lawfully for a continuous period of 10 years she wishes to apply for indefinite leave to remain."
They then set out in full paragraphs 276A to C of HC 395 and conclude as follows:
"On reviewing the above mentioned provisions we believe that our client meets all the requirements to be allowed to remain here indefinitely as she has had 10 years continuous lawful residence in the United Kingdom within the meaning of paragraph 276A HC 395…."
"You will no doubt agree that our client has been in the United Kingdom lawfully for a period in excess of 10 years. She is entitled to be granted indefinite leave under paragraph 276A…"
"On 16 March 2004 you representative was requested to provide evidence that your spouse was present in the United Kingdom and exercising treaty rights as an EEA national but this evidence has not been provided. Therefore the Secretary of State is not satisfied that you have at least 10 years continuous lawful residence in the United Kingdom."
The letter enclosing that notice elaborated on that decision and stated amongst other things as follows:
"Time spent in the United Kingdom holding a residence document is not leave to remain in the United Kingdom under the Immigration Rules. Time spent holding a residence document is only counted as lawful leave if it is spent as the spouse of an EEA national exercising Treaty rights in the United Kingdom. You have not provided evidence that your client's spouse is in the United Kingdom and exercising Treaty rights and therefore your client's application has been refused without right of appeal."
"Indefinite leave to remain on the ground of long residence in the United Kingdom may be granted provided that the Secretary of State is satisfied that each of the requirements of paragraph 276B is met."
Paragraph 276D of the same document provides:
"Indefinite leave to remain on the ground of long residence in the United Kingdom is to be refused if the Secretary of State is not satisfied that each of the requirements of paragraph 276B is met"
Paragraph 276B of HC 395, insofar as is relevant, provides as follows:
"The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom are that:
(i)(a) he has had at least 10 years continuous lawful residence in the United Kingdom;…"
Paragraph 276A of HC 395 provides, insofar as is relevant, as follows:
"For the purposes of paragraphs 276B to D:…
(b) "lawful residence" means residence which is continuous residence pursuant to:
(i) existing leave to enter or remain; or
(iii) an exemption from immigration control…"
"A person shall not under the principal act require leave to enter or remain in the UK 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 1972 European Communities Act."
The 2000 Regulations were made under section 2(2) of the 1972 Act. They provide, insofar as is relevant, as follows:
"5(1) In these regulations "qualified person" means a person who is an EEA national and in the United Kingdom as –
(a) a worker.
6(1). In these regulations paragraphs (2) to (4) apply in order to determine the persons who are family members of another person.
(4) In any other case, the persons are –
(a) His spouse;…
(8)(1) For the purposes of the 1971 Act and the British Nationality Act 1981 the following are to be regarded as persons who are in the United Kingdom without being subject under the Immigration laws to any restriction on the period for which they may remain -…
(2) However, a qualified person or family member who is not mentioned in paragraph (1) is not, by virtue of his status as a qualified person or the family member of a qualified person, to be so regarded for those purposes.
14(1) A qualified person is entitled to reside in the United Kingdom, without the requirement for leave to remain under the 1971 Act, for as long as he remains a qualified person.
(2) A family member of a qualified person is entitled to reside in the United Kingdom, without the requirement for such leave, for as long as he remains the family member of a qualified person….
15. Issue of residence permits and residence documents.
(2) Subject to regulation 22(1), the Secretary of State must issue a residence permit to a family member of a qualified person (or, where the family member is not an EEA national, a residence document) on application and production of – (a). a valid identity card issued by an EEA state or a valid passport; and
(c) In the case of a person not falling within sub-paragraph (b) proof that he is a family member of a qualified person.
17. Form of residence permit and residence document.
(2) A residence document issued to a family member who is not an EEA national may take the form of a stamp in that person's passport.
18. Duration of residence permit.
(1) Subject to the following paragraphs and to regulations 20 and 22(2), a residence permit must be valid for at least 5 years from the date of issue….
19. Renewal of residence permit.
(1) Subject to paragraphs (2) and (3) and to Regulations 20 and 22(2), a residence permit must be renewed on application.
20. Duration and renewal of residence permit or residence document granted to a family member
(1) subject to paragraph (2), the family member of an EEA national is entitled to a … residence document of the same duration as the residence permit granted to the qualified person of whose family he is a member; and the family members…residence document to the same terms as to renewal….
22. Refusal to issue or renew residence permit or residence document, and revocation of residence permit, residence document or EEA family permit.
(2) The Secretary of State may revoke…a …residence document if –
(b) The person to whom the ….residence document was issued –
(ii) is not or has ceased to be the family member of a qualified person…"
Regulation 2 provides for interpretation of certain phrases within the regulations. In particular it provides as follows:
" 'residence document' means a document issued to a person who is not an EEA national, in accordance with Regulation…15, as proof of the holders right of residence in the United Kingdom;…"
"Any person…who under, either the Immigration (European Economic Area) Order 1994, or the 2000 EEA Regulations has been issued with a residence permit or residence document valid for 5 years, and who has remained in the United Kingdom in accordance with the provisions of that Order or those Regulations (as the case may be) for 4 years and continues to do so may, on application, have his residence permit or residence document (as the case may be) endorsed to show permission to remain in the United Kingdom indefinitely."
If that sentence is meant to infer that the claimant knew at all material times from her separation from Mr Barroso that he was not a qualified person then it flies in the face of the undisputed facts. She was not in a position to know and did not know whether or not he was or was not a qualified person. Insofar as it is intended only to cover the period from 7 October 2004 to 29 March 2005, when she had no lawful basis to remain under the residence document, then it is not clear how a period of less than 6 months is thought to impact upon a period of continued residence under various lawful forms of residence for a period of in excess of 12 years. In my judgment this letter falls far short of being an adequate consideration of her claim under Article 8 and, insofar as it is necessary for me to do so, and if so invited, I am minded to grant a judicial review of that so that it may be quashed and the Secretary of State may be required to reconsider that issue in a proper way.