England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT SITTING AT BIRMINGHAM

		Birmingham Civil Justice Centre Priory Courts 33 Bull Street, Birmingham B4 6DS
		26th July 2012

MR JUSTICE BLAKE:

1. This is a rolled up hearing for permission and, if permission be granted, the substantive hearing of a challenge to an amendment made in November 2010 to the Immigration Rules laid before Parliament by the respondent, Secretary of State. In essence, these claimants challenge those parts of the rules that require a person seeking entry clearance to join a spouse settled in the United Kingdom having to demonstrate an understanding of the English language and the British way of life subject to certain exceptions that are not material.
2. By way of introduction it should be noted that this application is a footnote to a decision of Beatson J, given in the case of R (on the application) of Chapti & Ors v Secretary of State for the Home Department [2011] EWHC 3370 (Admin), delivered on 16th December 2011, whereby he rejected challenges by the same claimants to the same Immigration Rules, on the basis that the rules themselves were a breach of rights protected by the Human Rights Act 1998, namely Article 8 (the right to respect for private and family life), Article 12 (the right to marry) and Article 14 (the right not to be discriminated against in respect of treatment engaging the other rights.)
3. The Article 14 ECHR challenge advanced before Beatson J was based on the allegation of unjustified difference in treatment on the grounds of nationality or national origins. That challenge failed and I understand that the decision is now under appeal to the Court of Appeal.
4. As a reading of Beatson J's judgment makes plain, the challenge before him was originally brought in October 2010 in anticipation of the rules in question coming into force the following month.
5. Late in the day the grounds of challenge were sought to be amended on behalf of these claimants, by adding that the new requirements of the rules were discriminatory on other grounds. First, that they discriminated as between a class of persons settled in this country, namely British citizens and EU citizens and others with rights under the European Union treaties and support legislation. Second, that the rules were also discriminatory on gender grounds; the details of that challenge indicate that the suggestion was that this was because women who were applying to come to the United Kingdom to join their spouse were inherently less likely to be able to comply with the language rules than men, particularly in certain Asian societies.
6. Beatson J refused the application made at the hearing before him to amend the grounds of challenge late in the day, noting that this would involve examination of and a response to a body of evidence about the discriminatory effect of the rules. Nevertheless, he granted leave to the claimants at the conclusion of the judgment to make an application for permission on these grounds pursuant to the original claim form issued.
7. In January 2012 these claimants took up that invitation and sought such permission, by lodging grounds explaining why the requirements in question amounted to less favourable treatment towards British citizens or their spouses compared with a comparative class by reference to EU law.
8. In the same application of January 2012 the claimants also raised gender discrimination grounds. It is fair to say that as drafted this was pursued on a somewhat more tentative basis and in a way subordinate to the EU challenge. It was asserted that the gender based challenge has already been made to these rules in another case lodged before the court in R v on the application of Bhavyesh. It was suggested in the January 2012 application that the claimants in the Chapti group could add value to the challenge in the Bhavyesh case by adding detailed data as to the effect of the Immigration Rule in question on women resident in both Yemen and Pakistan, countries from which these claimants have relevant connections, or some of them do.
9. The subordinate nature of the gender challenge in the Chapti cases can perhaps be explained because, although the details of the facts in each of these cases are sparse in the extreme, what at least emerges from the claim forms is that in each of the present cases the sponsor was a British citizen woman, resident in the United Kingdom. The foreign suppose, whose admission was dependent upon complying with the terms of the Immigration Rules and the disputed language test was therefore a man. Thus, even if discrimination against women claimants could be established in the Bhavyesh challenge that would be somewhat extraneous to the factual situation in these cases.
10. The claimants sought in January to be joined with Bhavyesh on the gender ground simply to contribute to the argument. However, in directions given by Beatson J on 6th March, he was not prepared to join the gender challenge to the Bhavyesh case, although he recognised that there may be a common point in the European discrimination argument.
11. Pausing there, faced with that direction, in my judgment, the present claimants were faced with a choice: either they abandoned the discrimination ground on the basis that that they were not primarily concerned with it, or they sought to take on that argument themselves independent of any other case. They were made aware, shortly after March, that this application would be listed today in a rolled up hearing.
12. On 12th July 2012 the present claimants lodged their skeleton argument and a trial bundle as previously directed. It is noteworthy that the skeleton argument was entirely concerned with the EU discrimination point, as indeed was the trial bundle which included no evidence of discriminatory impact on the rule on women from the South Asia or indeed anywhere else. By that date it was apparent that the Bhavyesh case was unlikely to proceed. If there had been active communication between the solicitors in the case of Bhavyesh and the solicitors for the present claimants, I infer this should have been apparent somewhat earlier than 12 July, because the solicitors and the claimants in Bhavyesh had shown no interest in listing the case for argument. There had been no compliance with directions and no response to information sought and eventually an application made and granted in June 2012 that the solicitors in the case should come off the record. Accordingly, the Bhavyesh case was listed before me earlier today and dismissed for want of any intention evinced by the claimants to pursue it.
13. Returning to the chronology in the present claim, on the same day that the claimants lodged the skeleton argument, the solicitors appearing for each of the three claimants in this case also wrote to the court suggesting that the court should also consider the discrimination point and wider EU points although these were not articulated in the letter.
14. On 19th July the respondent Secretary of State filed a skeleton argument in which she intimated that she would have no objection to the gender discrimination claim being ventilated in this rolled up hearing if an application was so made.
15. On 23rd July the claimants wrote another letter to the court, essentially asking that the gender discrimination point be adjourned over, as it was not ripe for hearing on 26th July, but it should be joined with yet another challenge due to be examined in this court in the autumn of 2012, to another set of rules, namely a wide-ranging set of changes promoted by the Secretary of State at the end of June and came into force in July 2012. The 23rd July letter also indicated that any reliance upon any wider EU point was abandoned.
16. Faced with this application the respondent promptly communicated on 25th July, objecting to the proposed adjournment over and pointing out that the autumn challenge was concerned with a much more wide-ranging set of rules, which although included a language requirement also added a number of other novel requirements that undoubtedly would restrict the admission of those seeking entry to the UK as a spouse of a family member. There matters rested until the case was called on this morning after the Bhavyesh case had been dismissed.
17. Mr Gill QC, appearing for the claimants in this application, came to argue the merits of the course proposed in his client's letter of 23rd July and that since a gender challenge would one day have to be decided, it was appropriate that it be adjourned over. I indicated then that I refused that application and I now give my reasons for doing so:

i) The judicial review application was first lodged in October 2010 in anticipated of new rules coming into force in November. There is a requirement on applicants for judicial review to put their case comprehensively as soon as practicable. Gender discrimination could have then been a ground but was not.

ii) The claimants had a second chance to mount an independent gender challenge in January 2012, pursuant to the direction made in December that they could seek such permission. They did not take that opportunity. The application they made was a subordinate contribution to someone else's case.

iii) They were informed in March 2012 that they could not deploy the challenge in that fashion.

iv) By June or early July, it must have been apparent that the primary challenge was unlikely to succeed, but the claimants even then did not prepare this case on the basis of an independent challenge, with properly detailed grounds, evidence bundles prepared, skeleton arguments et cetera.

v). In my judgment, their failure to amount any such challenge between at least March and July 2012 is fatal to this application for an adjournment.

18. Essentially, this is an application to adjourn yet further a claim which could have been formulated a long time ago and the precise legal basis of which is still unformulated. It is an application to play a subordinate role in a set of other proceedings, where the principal challenge is a different target from that in the Bhavyesh case and thus, even more remote from the issues in the Bhavyesh case.
19. The claimants in effect have sought to litigate in the abstract, devoid of any evidential base or a means of enquiring into what the particular facts were and how the rules would impact them in a disadvantageous way. I therefore regard the application to further adjourn as misconceived. I can say no more about the merits of any discrimination ground as the matter simply has not been pleaded or ventilated before me. In the light of that decision, Mr Gill then withdrew from the proceedings leaving Mr De Mello to argue the EU discrimination grounds to which I now turn.
20. At the outset of his argument I invited Mr De Mello to articulate precisely what his case was. He confirmed what was set out in the amended grounds and the skeleton argument in support that it was exclusively a discrimination challenge, by comparison to a class of others with rights under EU law.
21. It was not asserted that the claimants had enforceable rights under EU law and thus fell outside the scheme of national immigration control, as they would do if they did indeed have such rights. I pointed out that an abstract challenge of this kind required a careful consideration of who the comparator class was; why the application of national Immigration Rules would constitute disadvantageous treatment and whether the classes to be compared were on analysis sufficiently analogous to require justification.
22. It seemed to me that on the written material provided by the claimants, they had not faced up to an essential dilemma. Either the claimants, as British citizens resident in the United Kingdom, had residence rights by reason of the European Union Treaty, in which case they could be asserted, assessed and, if appropriate, applied in the course of an immigration appeal, or they did not. If they did not have such rights, they could not compare themselves with a class of EU nationals who had such rights.
23. Despite exploring this problem with Mr De Mello, in the course of his oral submission, I am satisfied that he has provided no answer to this question and accordingly, in my judgment, the discrimination challenge fails at the first hurdle. In deference to the submissions made, the attendance of the respondents and the oral argument, I will explain this conclusion in a little greater detail.
24. As already indicated the pleaded facts in this case are sparse in the extreme, but essentially one or more of the three claimants asserts she is a British citizen, she works in the United Kingdom, she has never lived or worked elsewhere in the European Union or otherwise exercised economic rights there. She has a foreign husband. The imposition of the language requirement is differential treatment imposed upon her but not on a class of persons who are analogously situated.
25. Mr De Mello, in response to my question, identified three potential comparators with the British citizen sponsors in this case:

i) EU citizens who are workers, who have moved to the United Kingdom (the host State) to work or conduct similar economic activity here.

ii) EU citizens who are workers and who are resident in the United Kingdom but have never moved here and this class includes most obviously those who were born here.

iii) Turkish nationals, who can benefit from the provisions of the Ankara Agreement with the respect to the admission of their spouses and its children.

26. We then examined each group in turn. The first group would be the classic case of EU nationals who have exercised economic or other rights under the Treaty, who have moved to another Member State in order to reside here and would thus be within the scope of the rights afforded in Directive 2004/38/EC, commonly known as the Citizens Directive - see Article 3 of the Directive, paragraph 1 of which reads as follows:

"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."

27. It is thus obvious that members of such a class are the beneficiaries of a special legal regime, in a different position from either aliens or generally, or British citizens who fall altogether outside the scope of EU law. They are thus incapable of being a comparator class, or a group who are analogously situated with the claimants. There is ample authority from the Court of Appeal in England and Wales, the Court of Justice in Luxembourg and the European Court of Human Rights that there is a need for a comparator class who are in material respects analogously situated. Mr De Mello did not dispute it. It is sufficient to note the one case he cites in his skeleton namely Moustaquim v Belgium [1991] EHHR 802, where the European Court said at paragraph 49:

"Like the Commission, the Court would reiterate that Article 14 (art. 14) safeguards individuals placed in similar situations from any discriminatory differences of treatment in the enjoyment of the rights and freedoms recognised in the Convention and its Protocols....

In the instant case the applicant cannot be compared to Belgian juvenile delinquents. The latter have a right of abode in their own country and cannot be expelled from it; this is confirmed by Article 3 of Protocol No. 4 (P4-3).

As for the preferential treatment given to nationals of the other member States of the Communities, there is objective and reasonable justification for it as Belgium belongs, together with those States, to a special legal order."

28. The third group mentioned by Mr De Mello is equally inappropriate by means of a comparator for reasons ultimately accepted by him.
29. Turkish workers, who have been admitted for settlement in the United Kingdom are entitled to the protection of the Ankara Agreement, made between Turkey and the European Union and of measures promoted to give effect to that agreement. One of those measures is a standstill clause, whereby Immigration Rules in respect of family admission cannot be made more onerous than they were at the time of a state's accession to the European Union. In the case of the United Kingdom this was 1973. Further examination of this principle is to be found in one of the cases cited for a different purpose, namely the case of Dereci, to which I will turn later in this judgment. Again, it is obvious that such Turkish workers are in a special legal regime of their own and are not analogously situated.
30. The claim for discrimination by comparison with other EU entitled persons must therefore depend upon the second group, that is to say, a comparison between the claimants as British citizens resident in the United Kingdom but not having exercised Treaty rights elsewhere and an EU citizen who happens to reside in the United Kingdom but has not moved there or exercised rights trans-nationally to arrive there.
31. The Court of Justice has recently made it clear in two decisions that that those who have not exercised Treaty rights in a Member State other than their own do not come within the scope of Article 3 of the Citizens Directive - see case C-34/09 Ruiz Zambrano and case C-434/09 McCarthy. Zambrano was a judgment given on 8th March 2011 and McCarthy was given on 5th May 2011.
32. However, this conclusion did not preclude the possibility that British citizens who had worked abroad and then returned to the United Kingdom could rely upon EU law, rather than the applicable provisions of domestic Immigration Rules in respect of the admission of themselves and their family members - see a class of case following on from the case of R v Immigration Appeal Tribunal and Surender Singh ex parte Secretary of State Home Department case C-370/90 [1992] ECR1, 4265) and equally the case of Chen v Secretary of State for the Home Department case C-200/02, [2005] QB 325. There are also cases where the EU national had not exercised free movement rights but was dependent on others and could rely on the provisions of EU law to prevent them being required to leave the EU as the dependents of their non national parents: see Zambrano itself.
33. But beyond these scenarios, there has been no case cited, or known to this court, in which what has been called a non-mobile EU national has been able to call in a foreign spouse without more, under EU law rather than domestic law.
34. The closest case in question is C-60/00 Carpenter [2003] QB 416. But in that case the predicate for the conclusions of the Court of Justice was that the sponsor, although not resident in another Member State, had exercised Treaty rights by providing services from the United Kingdom to other Member States and thus EU law was engaged.
35. By contrast the case of McCarthy was precisely a case where a woman who was a dual Irish national and British citizen by birth, who had never worked and had never moved across State boundaries or exercised Treaty rights in other Member States could not rely upon Article 20 or 21 of the Treaty of the European Union, or indeed other provisions of that Treaty in order to secure a EU right of residence for her non-national husband herself.
36. In pursuit of his argument Mr De Mello relied upon the observation of Advocate-General Sharpston in the Zambrano case. In her extensive and learned opinion the Advocate-General said, amongst other things, the following at paragraph 146:

"First, the claimant would have to be a citizen of the Union resident in his Member State of nationality who had not exercised free movement rights under the TFEU (whether a classic economic free movement right or free movement under Article 21 TFEU), but whose situation was comparable, in other material respects, to that of other citizens of the Union in the same Member State who were able to invoke rights under Article 21 TFEU. Thus, the reverse discrimination complained of would have to be caused by the fact that the appropriate comparators (other Union citizens) were able to assert rights under Article 21 TFEU whereas a 'static' Union citizen residing in his Member State of nationality was prima facie unable to rely on national law for such protection."

However, in my judgment, that paragraph in no way provides the basis for an argument that Mr De Mello seeks to mount in this case.

37. The Advocate-General had invited the court to consider the suggestion that a principle of reverse discrimination might yield residence rights but the court did not pursue that invitation and its judgment, which is what counts when seeking to define what EU law says on the topic, adopted a very different conclusion.
38. The reasons for the judgment in Zambrano are to be found at paragraph 45:

"Accordingly, the answer to the questions referred is that Article 20 the Treaty on Functioning of the European Union is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen."

39. Any suggestion that the Zambrano judgment of the court laid the foundation for a broader right of residence, simply by application of the legal prohibition of reverse discrimination, was laid to rest in the case of C-256/1150 Dereci of November 2011. That case concerned claims by a number of family members who were not in the same position as dependent children. The court said this at 74:

"In the light of the foregoing observations the answer to the first question is that European Union law and, in particular, its provisions on citizenship of the Union, must be interpreted as meaning that it does not preclude a Member State from refusing to allow a third country national to reside on its territory, where that third country national wishes to reside with a member of his family who is a citizen of the Union residing in the Member State of which he has nationality, who has never exercised his right to freedom of movement, provided that such refusal does not lead, for the Union citizen concerned, to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a citizen of the Union, which is a matter for the referring court to verify."

40. Further analysis of the decision in Dereci is provided by a decision of the Upper Tribunal in the case of Sanade & Ors (British Children - Zambrano - Dereci) [2012] UKUT 0048 (IAC), a decision to which I was party, at paragraphs 84 to 95. Although not binding upon this court, a decision of the Upper Tribunal can be persuasive authority. The decision in Sanade is not subject to appeal and no one has suggested that it is plainly wrong.
41. I acknowledge that in Dereci the court nevertheless indicated that where no direct residence rights or no derived residents rights were created, it may nevertheless be unlawful to remove a family member and possibly, although this is not spelt out expressly, to deny him or her admission in the first place, if the consequence of such a measure would be to require the EU national to leave the EU altogether, in order to reside with their family member; that is spelt out at paragraphs 66 and 72. But whether EU law or ECHR law, as part of EU law, or indeed independently benefits the British citizen and her spouse and/or other family members is a highly fact sensitive enquiry, in which the impact on the family and the proportionality of measures in pursuit of legitimate aim would have to be analysed on a case by case basis. Any such analysis could only take place in an entry clearance application and/or any appeal from such a refusal of such entry clearance and such an appeal would be through the statutory appeal system, now to the First-tier Tribunal and appeal on a point of law to the Upper Tribunal.
42. It may be that in the course of any such fact sensitive enquiry an apparent tension between what the Court of Justice said in McCarthy and Carpenter will be resolved. In McCarthy at paragraph 49 it said :

"However, no element of the situation of Mrs McCarthy, as described by the national court, indicates that the national measure at issue in the main proceedings has the effect of depriving her of the genuine enjoyment of the substance of the rights associated with her status as a Union citizen, or of impeding the exercise of her right to move and reside freely within the territory of the Member States .... Indeed, the failure by the authorities of the United Kingdom to take into account the Irish nationality of Mrs McCarthy for the purposes of granting her a right of residence in the United Kingdom in no way affects her in her right to move and reside freely within the territory of the Member States, or any other right conferred on her by virtue of her status as a Union citizen."

However, in Carpenter, at paragraphs 38- 39, it said

38. In that context it should be remembered that the Community legislature has recognised the importance of ensuring the protection of the family life of nationals of the Member States in order to eliminate obstacles to the exercise of the fundamental freedoms guaranteed by the Treaty, as is particularly apparent from the provisions of the Council regulations and directives on the freedom of movement of employed and self-employed workers within the Community (see, for example, Article 10 of Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475); Articles 1 and 4 of Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families (OJ, English Special Edition 1968 (II), p. 485), and Articles 1(1)(c) and 4 of the Directive).

39. It is clear that the separation of Mr and Mrs Carpenter would be detrimental to their family life and, therefore, to the conditions under which Mr Carpenter exercises a fundamental freedom. That freedom could not be fully effective if Mr Carpenter were to be deterred from exercising it by obstacles raised in his country of origin to the entry and residence of his spouse (see, to that effect, Singh, cited above, paragraph 23). ……. (emphasis supplied)

43. This tension was further analysed by the Upper Tribunal in the case of Sanade, where it was accepted on behalf of the Secretary of State, after due consideration, that applying the principles in EU law, to which reference has already been made, that it would not be reasonable to expect a British citizen, who was by therefore an EU citizen, to leave the United Kingdom and/or the European Union altogether, in order to enjoy family life elsewhere. Whether such an interference of family life could be justified would nevertheless depend upon the particular facts of the case.
44. Travelling in that direction provides no assistance to Mr De Mello in the present case, which is not a claim that a refusal of admission would be unlawful on the facts of a particular case and all the circumstances but that the rules are unlawful because discriminatory between comparable classes.
45. In my judgment, if there is no general right for claimants who reside in the European Union, as British and therefore European citizens, to secure the admission of their spouses to avoid the necessity to live outside the Union, then there is no comparison between such a case and other EU nationals who can establish such a right.
46. If, however, the true comparison is between British citizens who have no consequential rights, whether human or European, to have their spouses joining them in the United Kingdom and between other people who happen to have the nationality of another EU State but equally cannot rely upon Articles 20 or 21, then there is no difference in treatment between them because both will have to rely upon the provisions of the UK immigration law if they are to bring in their spouse.
47. For these reasons, therefore, the discrimination argument pleaded by the claimants in these proceedings is without substance, because either there is no relevant comparator, or there is no relevant difference in treatment. The case is not therefore arguable, and I would therefore refuse permission.
48. I regret to say that, it seems to me that the claimants have really made no realistic attempt to grapple with the problems arising from the case law, particularly the cases following the decision of Zambrano.
49. I therefore refuse permission but since I have had the benefit of very detailed skeleton arguments from the respondent, detailed grounds, a full citations of authorities, notwithstanding the result in the case is a refusal of permission, I am prepared to authorise citation of this judgment.
50. I should add as a footnote to a footnote, that the claimant's preparation of this case of potential wide ranging significance importance was depressingly inefficient. This was demonstrated, not least by the fact that the key authority upon which Mr De Mello relied was not in the bundle and three authorities which were part of the bundle and included in the recommended reading had not the relevant pages copied. There are other criticisms that can be made of that bundle, including failures to copy a reported version of a case and a failure to copy authorities double sided to save paper and space.
51. MR EADIE: My Lord, I should have said as a matter of courtesy, we have made some enquiries about the point that my Lord raised with me before the short adjournment. I did not trouble you before because we had not anything of any great importance --
52. MR JUSTICE BLAKE: It was a bit of a side issue but it might have been of interest if we had got further.
53. MR EADIE: As a matter of courtesy, I thought I ought to say my Lord's initial reaction as to the source and the purposes of those provisions was properly accurate, but I say no more about that than that. We had not discovered anymore on, no other cases as far as we could tell that cited Zambrano at the Court of Appeal level. We did not have any further information on McCarthy as a live and ongoing case, so I did not trouble my Lord.
54. MR JUSTICE BLAKE: Thank you. I did not necessarily expect an answer. Thank you for the courtesy of making the inquiry and telling me what the result is. I rather think the autumn may see one or more judges, in one or more different places --
55. MR EADIE: -- having to grapple with that.
56. MR JUSTICE BLAKE: Tomorrow is another day, as they say.
57. MR EADIE: My Lord, that only leaves the question of costs. If you go into the main bundle, the trial bundle as it were, you will see the order that was made after the first judgment by Beatson J at tab C, pages 3 and 4 should be a stamped order of 10th January 2012, C3 and C4.
58. MR JUSTICE BLAKE: Yes, let me just catch up.
59. MR EADIE: It is headed "Draft Order" but the "Draft" probably needs to be struck out as a result of a stamp. You will see the manner in which he dealt with costs, under 3 and 4 of that. We would ask, given that this is, as it were, a rolled up continuation of a point which should have been run as Chapti No 1 but only was not because it was raised so late, we would ask for the same order that appears at paragraph 3, in relation to this hearing, and it is of course a matter for my Lord whether he wishes to make the order on an application by my learned friends at paragraph 4. We apply for the order of paragraph 3 or its equivalent.
60. MR JUSTICE BLAKE: Yes, thank you. Mr De Mello, Mr Gill, would you like to say anything?
61. MR GILL: Could we ask for paragraph 4?
62. MR JUSTICE BLAKE: Yes, on the basis that there was something worth arguing about?
63. MR GILL: If that ...
64. MR JUSTICE BLAKE: Mr Beatson J thought there might have been, so yes. I therefore make the following costs orders: the claimants to pay the defendants costs, such costs to be the subject of assessment on a standard basis, subject in the assessment of the claimant's means pursuant to section 11 of the Access to Justice Act 1999 to there be detailed assessment of the claimant's publicly funded costs. Does that deal with everything today?
65. MR GILL: Yes, thank you very much.
66. MR JUSTICE BLAKE: Thank you very much to you all.