England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		9 June 2015

MR JUSTICE GREEN:

A. The Issue

1. There is before the court today a judicial review of a decision of the Secretary of State for the Home Department, ("the defendant") which addresses the rights of the claimant to residence in her capacity as the primary carer of a British citizen, in the light of the judgment of the Court of Justice of the European Union in case C-34/09 Ruiz Zambrano v Office National de l'emploi [2011] ECR I-1177 ("Zambrano").
2. In theory a range of important issues arise in the course of this case. These include: whether the claimant is entitled to rights of residence; and if so, at what point in time those rights should have been recognised and whether the defendant acted unlawfully in failing to so recognise those rights in due time; and, whether any failure to recognise such rights timeously sounds in damages. In practice these issues have virtually all now been resolved by agreement between the parties. The outstanding issue which is of a limited compass concerns whether the claimant had what is known as a "derivative right of residence" in the light of Zambrano.
3. The issue before me today boils down to this: the defendant accepts that she issued a decision to the claimant on 15 May 2013 in which she rejected the claimant's claim for asylum, but accepted the claimant's claim based upon Article 8 of the European Convention on Human Rights. Importantly, at that point the defendant accepted that the claimant had sole parental responsibility for her child, a British citizen.
4. The decision does not, however, address the claimant's right to derivative residence based upon her child's EU citizenship. The defendant now accepts that in principle the claim might have such derived citizenship based rights but wishes to check and verify whether any changes in the claimant's circumstances have occurred in the intervening period before, as it were, surrendering and agreeing to confirm residence rights to the claimant. The defendant therefore seeks an adjournment for a limited period of time to investigate certain issues of fact, which, it is submitted, may be relevant to the assessment of the claimant's residence rights. Mr Murray, for the Secretary of State, has concisely put the Secretary of State's case for an adjournment upon the basis that it would be inappropriate for this court to decide the facts for itself.
5. Mr De La Mare QC, for the claimant, puts the opposite case. He submits that the facts are clear beyond rational peradventure, that it would be disproportionate and a waste of public resources to allow this case to be deferred and, in view of the chronic delay which the Secretary of State is, he submits, guilty of, a denial of the claimant's rights to a determination of her position if this matter is not resolved now.
6. In these circumstances I must therefore decide: (a) whether to adjourn and (b) whether if I do not adjourn the claimant is entitled to her asserted derived residence rights.

B. Relevant facts

7. Before considering these two issues I will briefly summarise the facts. The claimant was born in Ethiopia in 1986. She entered the United Kingdom in 2003 aged 17. She sought asylum, but this was rejected, though she was accorded discretionary leave to remain (DLR) upon the basis that she was an unaccompanied minor. Subsequent applications for DLR were refused, as were her appeals against those refusals.
8. By 3 October 2005 the claimant's appeal rights were exhausted, but no steps were taken to effect removal of the claimant from the United Kingdom.
9. In 2008 she entered a relationship with Mr Norman Mahbeer, a British citizen. A son was born from that relationship in May 2009 and accordingly he also has British citizenship. In February 2010 the relationship between the parents ended. The father now resides primarily in Jamaica where he moved to in 2012. He has another son through another relationship there, whom he is the joint carer of. He returns periodically to the UK and sees his son here when he is in the United Kingdom. Evidence is now before the court to the effect that the father does not intend to live in the United Kingdom, does not wish to become the child's carer and wishes the claimant to retain that position, i.e. as the child's carer. I have already recorded that the Secretary of State decided in 2013 that the claimant was indeed the sole carer for the child.
10. With that brief summary of the facts, I turn to the two issues before me today.

C. Adjournment?

11. The first is whether I should accede to the defendant's application for an adjournment. Mr Murray has argued that there are outstanding facts to be collected and evaluated before the Secretary of State is in a position to determine definitely the claimant's residence status. In broad terms these cover:

(1) The father's tax records and position: The defendant wishes to consider whether HMRC records reveal that the father has links with the United Kingdom which are inconsistent with his avowed claims that he resides in Jamaica and could not, or would not, care for the child here in the United Kingdom.

(2) The child's present schooling arrangements: The defendant wishes to check whether from the perspective of the school the claimant is the present carer of her son.

(3) Other possible carers: The defendant wishes to consider whether there is anyone else in the United Kingdom who might act as a carer for the child upon the hypothesis that the mother was removed.

12. Mr Murray submitted that these matters could be resolved in short order and therefore that it was proper to adjourn to permit investigation to proceed.
13. Notwithstanding Mr Murray's persuasive argument, I do not accept this submission. First, there is a simple matter of case management to be borne in mind. There has to be finality brought to this matter. It is common ground that the delays in this case, on the part of the Secretary of State, exceed anything which could be said to be reasonable. No good reason has been put before the court to explain why the matters sought now to be investigated have not already been inquired into, or why I should allow more time and more delay to pass. I bear in mind that were I to adjourn I would be committing both the court and the legal aid authority to further expenditure and use of resource in circumstances where both those commodities are under stress and ever depleting. This is relevant to what must be a proportionate case management decision that I should arrive at.
14. Secondly, and importantly, there is, in my view, evidence before me which enables me to decide the issue. I have considered in this regard whether I can properly form a view on the residual issue of fact, or whether the matters outstanding are so powerful and material that I should accept, however reluctantly, that I cannot reach a fair decision on this corpus of evidence. As I have noted, I consider that there is enough evidence to enable me to decide the issue. I therefore refuse to adjourn.

D. The Claimant's "Zambrano" desired residence right

15. I turn now to the substantive decision: is the claimant entitled to her residence rights? The practical significance of this is that if the claimant is entitled to residence, then this right is more extensive than the DLR accorded to her as a carer of her son, as set out in the impugned decision letter.
16. The claimant put the position in her skeleton argument in the following way:

"C was and is entitled to recognition of her EU rights, not least since her Zambrano rights run for the duration of [the child's] minority, whereas the leave presently granted by the Decision was limited to 30 months, expiring on 30.11.2015. Had C's Zambrano rights been recognised she would have been granted a residence card valid for 5 years, which right would be effectively automatically renewable thereafter. Instead, C will be required to make a charged application for further leave to remain prior to 14.11.2015 and meet the requirements of the Immigration Rules."

17. The legal context to the derivative right of residence arises in the following way. In Zambrano the Court of Justice, in its judgment at paragraphs [40] to [45], held as follows: first, that Article 20 TFEU conferred the status of citizen of the Union upon every person holding the nationality of a Member State; secondly, that citizenship of the Union was intended to be the fundamental status of nationals of the Member States; thirdly, that Article 20 TFEU precluded national measures which had the effect of depriving citizens of the Union of the genuine "enjoyment" of the substance of the rights conferred by virtue of their status as citizens of the Union; fourthly, that a refusal to grant a right of residence to a third country national, with dependent minor children in the Member State where those children were nationals and resided, and also a refusal to grant such a person a work permit, had the effect of depriving the citizen (the child) of the "enjoyment" of the citizenship right; and fifthly, that it had to be assumed that such a refusal would lead to a situation where those citizens of the Union would have to leave the territory of the Union in order to accompany their parents.
18. Similarly if a work permit were not granted to such a person, he or she would risk not having sufficient resources to provide for himself or herself and the family, which would also result in the children of the Union having to leave the territory of the Union. In such circumstances the Union citizens would in consequence be unable to exercise the pith and substance of the rights conferred upon them by virtue of their status as citizens. In paragraph 45 of the Court's judgment the Court stated as follows:

"Accordingly, the answer to the questions referred is that Article 20 TFEU 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."

19. The defendant implemented the ruling of the court in Zambrano into domestic law via the Immigration (European Economic Area) (Amendment) (No 2) Regulations 2012 entering into force on 8 November 2012. These formally recognised a right termed a "derivative right of residence". It is not necessary, for the purpose of giving judgment today, to go into any detail about these regulations.
20. In essence, a person is entitled to these derivative rights if (a) he or she is the primary carer of a 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".
21. The test to be applied has recently been considered by the Court of Appeal in Hines v Lambeth London Borough Council [2014] EWCA Civ 660. In paragraph 6 of his judgment Vos LJ stated that the "core question" was whether the child would be unable to reside in the UK or EEA if the carer was required to leave the UK.
22. In the present case the question is thus whether the child would be required to leave the UK or the EEA if his mother were removed to Ethiopia. The present case raises a stark set of options. If the mother is removed, then she could take her child with her, but this would strip him of the benefit of the enjoyment of his citizenship rights. The only other alternative carer for the child is therefore the father who says he resides in Jamaica so this would also effectively strip the child of the enjoyment of his citizenship rights if he were forced to go with the father to live there.
23. There can, in my view, based upon the facts which are before the court, be little doubt but that the present status quo, with the mother and child residing in the United Kingdom, represents the most effective way and possibly the only realistic way of protecting the child's enjoyment of his citizenship rights of the European Union. This flows almost ineluctably from the Secretary of State's own decision of 15 May 2013 where it was recognised that the claimant is the child's sole carer.
24. Do the three matters which the defendant now raises alter that conclusion? In my judgment, they do not come even remotely close to doing so.
25. First, as to the position of the child's education, the position in 2013 was that the claimant was the sole carer. Nothing in any document, or in any evidence before the court, raises an arguable suggestion that the position in 2013 has now changed, or that anything about the child's education casts doubt upon the position which then prevailed.
26. Secondly, as to the father's tax affairs, these show that the father has some property in the United Kingdom from which he earns a modest income, and that at least at some point in time was said to reside in a property here. Even assuming these matters to be so, they do not suggest that the father does not live or reside now in Jamaica, or has any desire to move to the United Kingdom, or would otherwise in any way wish to leave his other child in Jamaica to return to the United Kingdom to take charge for the first time of his son here. In short, nothing in the HMRC records provides any evidence of sufficient substance or materiality to cast serious doubt upon the proposition that the claimant must reside here in the United Kingdom to safeguard her son's citizenship rights.
27. Thirdly, as to the suggestion that there might be some other carer in the United Kingdom who could take charge of the boy, this is mere speculation. There is no evidence which comes close to making good the proposition.
28. I therefore come to the conclusion that on the evidence before me the claimant is entitled to her derivative residence rights. It necessarily follows that the decision to grant DLR only on Article 8 rights was unlawful and that it failed to recognise the wider derived right.

MR TOM DE LA MARE QC: The last matter is just this - and what my Lord thinks appropriate to do with it I am very much in your hands - it is plain that the continuing authority of AB is being used and, whether rightly or wrongly, my Lord has not decided, as a break upon other claims of this kind. That is regrettable in circumstances where that case itself was settled on appeal. One suggestion that does occur to me is perhaps that my Lord could direct informally that the Secretary of State at least brings to the attention of anybody bringing a look alike case the fact of that settlement and the fact of this settlement, so that the court is fully appraised.

MR JUSTICE GREEN: I am aware that you are asking me to pontificate on various matters.

MR TOM DE LA MARE QC: Of course I was. I was going to chance my arm shamelessly. It is a very unsatisfactory state of affairs.

MR JUSTICE GREEN: I see that. I read the judgment yesterday with some interest. I decided, for better or for worse, it was better simply to deal with this case on the facts and not engage in ex cathedra statements about the law, however interesting they may be. I declined implicitly your invitation, try-on though it was, Mr De La Mare.

MR TOM DE LA MARE QC: Try-on though it was, the point nevertheless remains that something needs to be done by way of a health warning in the attachment of this particular case--

MR JUSTICE GREEN: Someone is going to have to grapple with that point.

MR TOM DE LA MARE QC: Indeed. All I really seek at the moment is some undertaking, or a matter of that kind, that the Secretary of State is going to bring material fixtures about that litigation to any future litigant's attention, particularly if, as in that case, the litigant is unrepresented. The fact that the case was settled on appeal, the fact that the Secretary of State has chosen not to pursue what is, on the analysis of his SGR, the in principle answer to the entirety of the claim that we have advanced and instead chosen to settle this litigation, is at the very least material that should be brought to any future court's attention and indeed any unrepresented litigant's attention.

MR JUSTICE GREEN: What I will simply direct (as this judgment, as other Admin Court judgments, will end up on BAILII) is this: the transcript of this judgment will simply include the observations that you have just made so that it will be in public domain. I do not think, so far as I am concerned, it is appropriate for me to try and even indirectly express a view on how what may be a vexed issue is going to be played out. There is no harm in the transcript being available so that it has at least some sort of oxygen of publicity.

MR TOM DE LA MARE QC: If nothing else, that will act as a Lord Denning 'red hand' and no doubt an endorsement or advertisement gratefully received by my clerks. I think that is the most one can do in the circumstances to draw that matter of concern to wider intention. I am grateful. Apologies on behalf of us all for the flurry of material.