England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

		Royal Courts of Justice Strand, London, WC2A 2LL
		11 July 2016

Mrs Justice Lang :

1. The Claimants seek judicial review of the Defendant's refusal, in 2013, to grant an EEA family permit or entry clearance to enable Mrs Benjamin to enter and reside in the United Kingdom ("UK") with her husband, Mr Benjamin, and their children. Mr Benjamin and their children are British citizens, but Mrs Benjamin is a Kenyan national. The family had previously been residing together in France.
2. Mr Benjamin wished to exercise what he claimed were his EU freedom of movement rights to return to live in the UK with his third country national spouse. The Defendant refused entry to Mrs Benjamin under the Immigration (European Economic Area) Regulations 2006 on the ground that Mr Benjamin failed to establish that he had been exercising EU Treaty rights in France.
3. In claim no. CO/300/2014, the Claimants challenged the Defendant's refusal to grant Mrs Benjamin entry clearance at Calais, on 27 December 2013. The claim was issued in the Upper Tribunal but it was transferred to the High Court on 14 January 2014 because the application for a declaration of incompatibility took it outside the jurisdiction of the Upper Tribunal. I granted permission at an oral hearing on 28 March 2014, but refused to grant an interim order requiring the Defendant to grant leave to enter to Mrs Benjamin pending the determination of the judicial review.
4. The matter was urgent because Mrs Benjamin was due to give birth to their fourth child in May 2014, and so I directed that the substantive hearing should be expedited. At the substantive hearing before me on 30 April 2014, it emerged that the Claimants had also issued an earlier claim for judicial review in the Upper Tribunal on 16 December 2013 (JR/5746/2013). In that claim, they challenged the Defendant's refusal to grant Mrs Benjamin an EEA family permit, on 15 November 2013, and entry clearance at Calais on 15 December 2013. Their applications for an interim remedy and for permission were refused on the papers by the Upper Tribunal. On 26 February 2014, the Claimants applied for permission to appeal to the Court of Appeal against the refusal of an interim order. The Claimants renewed their application for permission to apply for judicial review, and a hearing was listed in the Upper Tribunal on 18^th June 2014. As this judicial review claim raised the same issues as the claim before me, both parties consented to my proposal that it should be transferred to the High Court to be determined by me, sitting as a Judge of the Upper Tribunal, together with claim CO/300/2014, to avoid duplication and a waste of court time and costs.
5. The Defendant submitted that this Court should dismiss both judicial review claims on the ground that the Claimants should pursue their statutory remedy by way of appeal, relying upon R (Lim) v Secretary of State for the Home Department [2008] INLR 60. There was an out-of-country right of appeal against the refusal of the EEA family permit and the refusal of entry clearance. On 9 December 2013, Mrs Benjamin had lodged a notice of appeal to the First-tier Tribunal (FTT) against the Defendant's refusal to issue an EEA family permit in November 2013 and that appeal was awaiting a hearing date.
6. For the reasons given in my judgment handed down on 15 May 2014 ([2014] EWHC 1396 (Admin)), I accepted the Defendant's submission that the issues would be more appropriately determined within the statutory appeal process, but I stayed the judicial review claims, pending the final determination of the statutory appeal, to preserve the Claimants' claim for damages, if it arose. The order of 15 May 2014 provided that both judicial review claims should be stayed until the final determination of the Claimants' appeal ref. OA/21811/2013 and the final determination of McCarthy v Secretary of State for the Home Department in the CJEU and the High Court.
7. In my judgment, I suggested that Mrs Benjamin might be eligible for entry to the UK under the Immigration Rules as the spouse of a British citizen, but I was informed by Mr Benjamin at the hearing in June 2016 that he was unlikely to be able to meet the minimum income or capital requirements to support her, as they were largely dependant on state benefits. He was also reluctant to pay the fee for the visa application.
8. The Defendant subsequently reviewed the case and decided to grant Mrs Benjamin an EEA family permit with effect from 17 July 2014. Mrs Benjamin was permitted to enter and remain in the UK, and on 28 November 2014 she was granted a UK residence card, valid for 5 years.
9. On 12 July 2014, the Defendant notified the FTT that the decision to which the appeal proceedings related had been withdrawn, and therefore the appeal was not proceeded with.
10. In the light of these developments, the Claimants' application for permission to appeal to the Court of Appeal against my decision to grant a stay, and for an interim order requiring the Defendant to grant Mrs Benjamin entry to the UK, was dismissed by consent.
11. The McCarthy litigation was concluded in 2015, and after some delay, the judicial review claims were restored before me to determine.

The outstanding issues

12. Although the Claimants have achieved their primary objective – a grant of residence in the UK for Mrs Benjamin – they continued to seek quashing orders, declarations of unlawfulness, and Francovitch damages for breaches of EU law, in respect of the Defendant's decisions to refuse Mrs Benjamin an EEA family permit on 15 November 2013, and to refuse her entry clearance at Calais on 15 and 27 December 2013.
13. The Defendant continued to resist the claims for judicial review, contending that the refusals in 2013 were justified and lawful, on the basis of the information the Claimants provided to the Defendant at the material times, and the doubt and uncertainty which their claims gave rise to. It was only subsequently, during the course of the litigation, that Mr and Mrs Benjamin provided sufficient information to demonstrate that Mr Benjamin had been exercising EU Treaty rights in France, which in turn led to the Defendant's review of the case, and the decision to grant Mrs Benjamin entry into the UK.
14. Alternatively, in the event that the 2013 decisions were found to be unlawful, the Defendant submitted that no remedies should be granted. Quashing orders and declarations would now serve no purpose, as the decisions had been superseded and reversed. The Defendant would only be liable for damages if she had committed a sufficiently serious breach of a provision of EU law which was intended to confer rights on an individual, and that individual had suffered loss as a result. Although the Defendant accepted that the EU rights of free movement in issue were intended to confer rights on individuals, she submitted that the other conditions for the award of damages under EU law were not met. The breach was not sufficiently serious because the law was not clear or precise, and the Defendant acted on the basis of a conscientious and honest application of the law as it was understood to be at the time. This was not a case in which the member state had "manifestly and gravely disregarded the limits on its discretion" (Cases C-46/93 and C-48/93 Brasserie du Pêcheur SA v Germany and R v Secretary of State for Transport, ex parte Factortame Ltd and Others [1996] ECR I-1029, at [55]). The Defendant also disputed that the non-pecuniary and pecuniary losses claimed by the Claimants were genuine, and flowed directly from the alleged breach of EU law in this particular case.

Decisions under challenge

EEA family permit refusal on 15 November 2013

15. The first decision challenged by the Claimants was the refusal to grant Mrs Benjamin an EEA family permit on 15 November 2013.
16. In an application dated 27 September 2013, Mrs Benjamin applied for an EEA family permit with a view to settling in the UK as the family member of an EEA national, relying upon the Surinder Singh principle. She attended for interview in October 2013.
17. Her application was refused by the entry clearance officer, in a decision dated 15 November 2013 which read:

"You have applied for admission to the United Kingdom by virtue of European Community Law as the family member of a European Economic Area national who is exercising, or wishes to exercise, rights of free movement under the Treaty of Rome in the United Kingdom.

You are applying for an entry clearance to the UK as the spouse of British national, Mr Mark Benjamin. Your intention is to join him and your three children. In support of your application you have submitted a quantity of French documents. I have examined them carefully but they do not indicate that your spouse exercised his treaty rights whilst he was living in France.

I therefore refuse your EEA family permit application because I am not satisfied that you meet all the requirements of Regulation 12 of the Immigration (European Economic Area) Regulations 2006."

18. As the Upper Tribunal subsequently observed, the reference to regulation 12 was an error, it should have referred to regulation 9.
19. Her application stated that:

i) She was a national of Kenya.

ii) She was living in France, having moved there from Kenya in 2006.

iii) She married Mr Benjamin in Kenya on 26 July 2006, having met in February 2006.

iv) Mr Benjamin was a British citizen, now living in London.

v) Mr and Mrs Benjamin had lived together until September 2012 when Mr Benjamin moved to the UK for the sake of their eldest son's education.

vi) Their children were (1) I, born in France in 2006, now living with Mr Benjamin in London; (2) V, born in France in 2008, now living with Mr Benjamin in London; (3) M, born in the USA in 2011, living with Mrs Benjamin in France and intending to travel to the UK with her.

vii) She was unemployed and was in receipt of state benefits in France in the sum of 550 euros per month and receiving some 100 – 200 euros per month from Mr Benjamin.

viii) Mr Benjamin had been self-employed since August 2008 as a computer programmer/legal adviser under the name Hallo IT. He was now working in London, about 18 hours per week, with a monthly income of £1000.

ix) Mr Benjamin was in receipt of state benefits in the UK, namely, tax credits, child benefit, disability living allowance for his autistic son, I, and housing benefits.

x) She had made numerous visits to the UK in 2012 and 2013.

20. According to the Defendant, the supporting documents comprised:

i) Their passports and marriage certificate.

ii) Her French residence card ("carte de sejour"), issued in 2009 pursuant to Directive 2004/38/EC with her photograph and personal details. It was valid for 10 years.

iii) Her travel booking.

iv) Mr Benjamin's URSSAF documentation.

v) Invitation letter from Mr Benjamin.

21. In his statement dated 2 April 2014, Mr Benjamin conceded that they presented "a relatively limited set of documents" when applying for the EEA family permit. He said he prepared a fuller set of documents when he lodged the immigration appeal on 9 December 2013 and the subsequent judicial review claims. He annexed a schedule which he had prepared marked "MEB2" listing to the best of his recollection at that time, the documents which he presented on each occasion to the UK immigration authorities. For the family permit application the list comprised:

i) Mr and Mrs Benjamin's passports.

ii) Mrs Benjamin's residence card 2013.

iii) Marriage certificate.

iv) Children's birth certificates (with the caveat "As I recall").

v) SIRENE (French certificate of self-employment).

vi) URSSAF summary 2/2010.

vii) URSSAF letter new status category 1/2010.

22. The only documents listed by Mr Benjamin which related to employment were the SIRENE certificate which showed that he was registered on the "Register of Businesses & Institutions (SIRENE)" as having created a business in Information Technology in June 2008. He was required to be registered with URSSAF which is the "Recovery Union for Social Security and National Insurance contributions". The URSSAF documents disclosed comprised two forms dated February 2010, describing him as an "Informaticien" (computing professional) and recording that his activity was registered as a "self-entrepreneur" from 1 January 2010.
23. These documents were proof that he had set himself up as a self-employed IT consultant in France. However, they did not evidence any actual activity by him. There were no tax returns, invoices, bank account statements, or any other evidence that he was working as an IT consultant and receiving an income.
24. On 3 June 2016, shortly before the hearing, Mr Benjamin filed a further witness statement exhibiting inter alia a single sheet document called "historical accounts" for "Hallo IT" with an address in London, sole trader Mark Benjamin. The document was prepared by Mr Benjamin and listed "earnings", "start-up assistance", "gross revenue", "deductions" and "profit/loss" between 2008 and 2013, without any supporting evidence. Mr Benjamin's earnings and profits were negligible, showing zero figures since 2011. The list of "hours worked" bore no rational correlation to the earnings. For example, in the year 2011/2012 he claimed to work 1,850 hours but his earnings were £0. Although it was confirmation of the existence of the business, it showed little economic activity.
25. Mr Benjamin said he believed this document may have been submitted to the Defendant at the time of the application for a family permit, and he had only recently retrieved it from his computer. I do not accept that Mr and Mrs Benjamin ever submitted this document to the Defendant's officials. It was not in the list of documents prepared by the immigration officials. It was not referred to in Mr Benjamin's witness statement of 2 April 2014, nor in the list of documents he produced at that time. It was not produced when Mrs Benjamin applied for entry clearance in December 2013. It was never disclosed or even mentioned prior to June 2016, despite the volumes of evidence submitted in the legal proceedings between 2013 and 2014, and the lengthy exchanges about the need to produce evidence of economic activity which I had with him during the hearing in 2014.

Refusal of entry clearance on 15 and 27 December 2013

26. On 15 December 2013, Mrs Benjamin attempted to travel to the UK from Calais, with their daughter V. She was asked to provide evidence of her entitlement to enter the UK as Mr Benjamin's spouse. According to the Claimants, Mrs Benjamin took her passport and her residence card with her. She also took a laptop and smartphone on which there were electronic versions of the statement and supporting documents which they had prepared for the judicial review claim JR/5746/2013/UTIAC. According to the Claimants, the immigration official advised her that she needed to provide originals of Mr Benjamin's passport, their marriage certificate and the children's birth certificates. There are no further details of this refusal.
27. On 27 December 2013, Mrs Benjamin again attempted to enter the UK via Calais. She was accompanied by Mr Benjamin and they were both interviewed. Notes were taken by the immigration officials and Mr Benjamin made a covert transcript of his interview. Their documents were carefully examined, and they were questioned about them.
28. The Home Office Notice of Immigration Decision stated:

"You have sought admission to the United Kingdom under EC law in accordance with regulation 11 and in particular regulation 9 of the Immigration (European Economic Area) Regulations 2006 on the ground that you are the family member of Mr Mark BENJAMIN, a British national who claims to be a qualified person with a right to have his family members reside with him in the United Kingdom under those Regulations. However I am satisfied that Mr BENJAMIN is not a qualified person in accordance with regulations 6 and 9 and that you are not the family member of an EEA national with a right to reside in the United Kingdom under those Regulations and that you do not therefore have a right to be admitted under regulation 11. Previous applications made by you on the above grounds have been refused because the documentary evidence provided to the Entry Clearance Officer did not indicate that Mr BENJAMIN exercised his treaty rights whilst he was living in France. You have today produced additional documentation, however, this is not sufficient to justify overturning the previous decision or to admit you under regulation 9.

I therefore refuse you admission to the United Kingdom in accordance with Regulation 19."

29. The documentation which the Claimants produced on 27 December 2013 was listed in the first witness statement of Ms Khan, a Border Force Officer based at Calais, as well as summarised in Mr Benjamin's schedule. It included the documents previously presented when they applied for an EEA family permit. Further documents were produced, including more correspondence with URSSAF; a letter from RSI dated January 2010 giving partial exemption from social security contributions; pay slips for 2 months work as a lorry driver in 2007 and tax assessments for the years 2007 to 2009.
30. Ms Khan explained in her first witness statement:

"10. Documents from SK23 to SK42 are dated from 2006 to 2010. They refer to Mr Benjamin's self-employed status in France. There was no evidence submitted that Mr Benjamin was exercising his Treaty Rights in France after 2010. Moreover at interview Mrs Benjamin stated that her husband had been unemployed from the end of 2010 until he returned to the United Kingdom. This directly contradicted what Mr Benjamin said in his interview which was that he had last worked in France in September 2012 as a full time computer programmer. I asked Mr Benjamin if he had any evidence to prove he worked in France from 2010 to which he said he had no paper evidence. I asked Mr Benjamin if he had any evidence with him for consideration that he had not already submitted. He presented me evidence SK42 to SK51."

31. Ms Eley, the Border Force Senior Officer on duty, asked her French-speaking colleague to check all the documents submitted to see if they contained any evidence that Mr Benjamin was exercising Treaty rights as at September 2012 or as at December 2013. It was confirmed that there was no such evidence, as the French documents all pre-dated 2010.

Legal framework

EU law

32. Article 20 of the Treaty on the Functioning of the European Union ("TFEU") establishes that every person holding the nationality of an EU Member State shall be an EU citizen, and, in that capacity, shall enjoy rights including "the right to move and reside freely within the territory of the Member States": Article 20(2)(a) TFEU.
33. Article 21(1) TFEU reinforces the position that citizens of the EU shall have "the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect".
34. Directive 2004/38/EC contains the key limitations and conditions on the basic right of EU citizens to move and reside freely within the EU as referred to in Article 21(1) TFEU. In addition, while the TFEU itself makes no reference to any derivative rights on the part of family members of EU citizens, such rights are provided in the Directive.
35. Article 3 of the Directive (entitled "Beneficiaries") confirms that the Directive applies 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". Under Article 2(2)(a), the phrase "family member" is defined so as to include the Union citizen's spouse.
36. Article 5 of the Directive provides for a "Right of entry" for Union citizens and their family members. It provides, so far as is material:

"1. Without prejudice to the provisions on travel documents applicable to national border controls, Member States shall grant Union citizens leave to enter their territory with a valid identity card or passport and shall grant family members who are not nationals of a Member State leave to enter their territory with a valid passport.

No entry visa or equivalent formality may be imposed on Union citizens.

2. Family members who are not nationals of a Member State shall only be required to have an entry visa in accordance with Regulation (EC) No 539/2001 or, where appropriate, with national law. For the purposes of this Directive, possession of the valid residence card referred to in Article 10 shall exempt such family members from the visa requirement…

3….

4. Where a Union citizen, or a family member who is not a national of a Member state, does not have the necessary travel documents, or, if required, the necessary visas, the Member State concerned shall, before turning them back, give such persons every reasonable opportunity to obtain the necessary documents or have them brought to them within a reasonable period of time or to corroborate or prove by other means that they are covered by the right of free movement and residence."

37. Article 6 of the Directive confers an initial right of residence in another Member State for a period of up to 3 months "without any conditions or any formalities other than the requirement to hold a valid identity card or passport". This right is enjoyed by both (i) Union citizens and (ii) family members who are not themselves nationals of a Member State who are "accompanying or joining the Union citizen": Article 6(2).
38. Article 7 of the Directive confers an extended right of residence in another Member State for a period of more than three months, provided that they fulfil the conditions in Article 7(1), namely that they:

"(a) are workers or self-employed persons in the host Member State; or

(b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or

(c) - are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and

- have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence; or

(d) are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c)."

39. By Article 7(2), the extended right of residence "shall extend to family members who are not nationals of a Member State, accompanying or joining the Union citizen in the host Member State, provided that such Union citizen satisfies the conditions referred to in paragraph 1(a), (b) or (c)".
40. Article 7(3) provides that, for the purposes of Article 7(1)(a), a Union citizen who is no longer a worker or self-employed person shall retain the status of worker or self-employed person in certain specified circumstances e.g. if s/he is temporarily unable to work as the result of an illness or accident.
41. Article 8 of the Directive entitles Member States to require Union citizens to register with the relevant authorities for periods of residence longer than three months. Pursuant to Article 8(3), Member States may require citizens to present evidence that they satisfy the conditions of residence in Article 7 in order to be issued with a registration certificate.
42. Article 10(1) of the Directive provides that the rights of residence of family members who are not themselves nationals of a Member State shall be evidenced by the issuing of a document called "Residence card of a family member of a Union citizen". Pursuant to Article 10(2), Member States must require such persons to present certain evidence in order to be issued with such a card. This includes a registration certificate issued under Article 8 or, in the absence of a registration system, any other proof of residence in the host Member State of the Union citizen whom they are accompanying or joining.
43. Article 14 of the Directive (entitled "Retention of the right of residence") provides (so far as is material):

"1. Union citizens and their family members shall have the right of residence provided for in Article 6, as long as they do not become an unreasonable burden on the social assistance system of the host Member State.

2. Union citizens and their family members shall have the right of residence provided for in Articles 7… as long as they meet the conditions set out therein.

In specific cases where there is a reasonable doubt as to whether a Union citizen or his/her family members satisfies the conditions set out in Articles 7… Member States may verify if these conditions are fulfilled. This verification shall not be carried out systematically."

44. Article 16 of the Directive confers a right of permanent residence on Union citizens and their family members. Article 16 provides:

"1. Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there. This right shall not be subject to the conditions provided for in Chapter III.

2. Paragraph 1 shall apply also to family members who are not nationals of a Member State and have legally resided with the Union citizen in the host Member State for a continuous period of five years.

3. Continuity of residence shall not be affected by temporary absences not exceeding a total of six months a year, or by absences of a longer duration for compulsory military service, or by one absence of a maximum of twelve consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.

4. Once acquired, the right of permanent residence shall be lost only through absence from the host Member State for a period exceeding two consecutive years."

45. Article 20(1) of the Directive provides that Member States shall issue family members who are entitled to permanent residence under Article 16 with a "permanent residence card", renewable automatically every 10 years. Under Article 20(3), an "[i]nterruption in residence not exceeding two consecutive years shall not affect the validity of the permanent residence card".

Surinder Singh rights of residence

46. The rights laid down in the Directive are expressly granted only to citizens of one Member State seeking to enter or reside in the territory of another Member State (the "host" Member State): Articles 6(1), 7(1) and 16(1). However, in Case C-370/90 R v Immigration Appeal Tribunal and Surinder Singh ex parte SSHD [1992] ECR I-4265, the CJEU held that where a national of one EU Member State exercises an EU law right to work or pursue self-employed activity in another EU Member State, she is entitled (on her return to her "home" Member State) to be joined or accompanied by a spouse who is a third-country national, on terms no more onerous than those that would apply if she were seeking to have her spouse join her in a Member State other than her home Member State.

UK law

47. The Directive was implemented into UK domestic law by the Immigration (European Economic Area) Regulations 2006 (the "2006 Regulations"). References below are to the Regulations in force as at the material time in 2013; they have since been amended.
48. Regulation 2(1) defines "EEA national" as "a national of an EEA State who is not also a British Citizen".
49. Regulation 7 defines "family member" so as to include a person's spouse.
50. Regulation 11 ("Right of admission to the United Kingdom") makes equivalent provision to Article 5 of the Directive. Regulation 11(2) provides:

"A person who is not an EEA national must be admitted to the United Kingdom if he is a family member of an EEA national … and produces on arrival -

a) a valid passport; and

b) an EEA family permit, a residence card …"

51. Regulation 11(4) provides (so far as is material) that before an immigration officer refuses admission to the UK to a person under this regulation because that person does not produce on arrival a document mentioned in regulation 11(2), the immigration officer must give that person:

"every reasonable opportunity to obtain the document or have it brought to him within a reasonable period of time or to prove by other means that he is –

…

(b) a family member of an EEA national with a right to accompany that national or join him in the United Kingdom…"

52. Under regulation 12 ("Issue of EEA family permit"), an entry clearance officer must issue an EEA family permit to a person who applies for one if the person is a family member of an EEA national, provided that (so far as is material) "the EEA national – (i) is residing in the UK in accordance with these Regulations" (reg. 12(1)(a)) and "the family member will be accompanying the EEA national to the United Kingdom or joining the EEA national there" (reg. 12(1)(b)).
53. Regulations 13, 14 and 15 provide for "initial", "extended" and "permanent" rights of residence for EEA nationals in the UK, and implement the equivalent provisions in Articles 6, 7 and 16 of the Directive. The right to reside beyond an initial period of 3 months (the "extended" right of residence in Article 14) is conditional upon satisfying the definition of "qualified person" in regulation 6, which implemented the equivalent criteria in Article 7(1) of the Directive.
54. Regulation 9 places the Surinder Singh principle on a legislative footing. It provides, so far as is material:

"Family members of British citizens

(1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who is the family member of a British citizen as if the British citizen were an EEA national.

(2) The conditions are that—

(a) the British citizen is residing in an EEA State as a worker or self-employed person or was so residing before returning to the United Kingdom; and

(b) if the family member of the British citizen is his spouse or civil partner, the parties are living together in the EEA State or had entered into the marriage or civil partnership and were living together in the EEA State before the British citizen returned to the United Kingdom.

(3) Where these Regulations apply to the family member of a British citizen, the British citizen shall be treated as holding a valid passport issued by an EEA State for the purpose of the application of regulation 13 to that family member."

Grounds for judicial review

Ground 1: the Surinder Singh principle and regulation 9 of the 2006 Regulations

55. The Claimants' first ground of challenge against all three decisions was that the refusal to grant an EEA family permit to Mrs Benjamin, or to grant her entry clearance, was a breach of the Surinder Singh principle and regulation 9 of the 2006 Regulations.
56. I agree with the Defendant's submission that the onus rested on the Claimants to establish that they were entitled to exercise a Surinder Singh right of residence (see Case C-408/03 Commission v Belgium [2006] 2 C.M.L.R 173, at [64]; Zackaria Muihidin Ali v Secretary of State for the Home Department [2006] EWCA Civ 484, at [12]); AG & Ors (EEA - jobseeker - self-sufficient person - proof) [2007] UKAIT 00075, at [84]-[91]; Begum v Secretary of State for the Home Department [2011] UKUT 00275 (IAC)).
57. In my judgment, on the limited evidence provided by the Claimants, the Defendant was entitled to conclude that the Claimants had failed to discharge the onus upon them. In those circumstances, it was not unlawful for the Defendant to refuse the applications. I consider that the Defendant's officials gave the Claimants a reasonable opportunity to obtain the required documents and to proffer any other means of proof, as required under Article 5(4) and regulation 11(4).
58. The fact that a subsequent application, supported by further evidence, was successful, did not render the earlier decisions unlawful. It is not entirely clear what information was available to the Defendant when she made her decision to grant an EEA family permit to Mrs Benjamin in July 2014, and reasons for the decision were not given. However, it is apparent that Mr Benjamin submitted substantially more material in support of his claim in the course of the judicial review claim in 2014 and in support of his application for interim relief as part of his appeal to the Court of Appeal. This material would have been available to the Defendant when she made her decision in July 2014, and she was by then satisfied that Mrs Benjamin met the conditions for entry to the UK.
59. In Surinder Singh, the CJEU gave the following reasons for its conclusion that third-country family members could accompany an EU national returning to his state of origin after exercising rights of free movement in another Member State:

"19 A national of a Member State might be deterred from leaving his country of origin in order to pursue an activity as an employed or self-employed person as envisaged by the Treaty in the territory of another Member State if, on returning to the Member State of which he is a national in order to pursue an activity there as an employed or self-employed person, the conditions of his entry and residence were not at least equivalent to those which he would enjoy under the Treaty or secondary law in the territory of another Member State.

20 He would in particular be deterred from so doing if his spouse and children were not also permitted to enter and reside in the territory of his Member State of origin under conditions at least equivalent to those granted them by Community law in the territory of another Member State.

21 It follows that a national of a Member State who has gone to another Member State in order to work there as an employed person pursuant to Article 48 of the Treaty and returns to establish himself in order to pursue an activity as a self-employed person in the territory of the Member State of which he is a national has the right, under Article 52 of the Treaty, to be accompanied in the territory of the latter State by his spouse, a national of a non-member country, under the same conditions as are laid down by Regulation No 1612/68, Directive 68/360 or Directive 73/148, cited above.

22 Admittedly, as the United Kingdom submits, a national of a Member State enters and resides in the territory of that State by virtue of the rights attendant upon his nationality and not by virtue of those conferred on him by Community law. In particular, as is provided, moreover, by Article 3 of the Fourth Protocol to the European Convention on Human Rights, a State may not expel one of its own nationals or deny him entry to its territory.

23 However, this case is concerned not with a right under national law but with the rights of movement and establishment granted to a Community national by Articles 48 and 52 of the Treaty. These rights cannot be fully effective if such a person may be deterred from exercising them by obstacles raised in his or her country of origin to the entry and residence of his or her spouse. Accordingly, when a Community national who has availed himself or herself of those rights returns to his or her country of origin, his or her spouse must enjoy at least the same rights of entry and residence as would be granted to him or her under Community law if his or her spouse chose to enter and reside in another Member State. Nevertheless, Articles 48 and 52 of the Treaty do not prevent Member States from applying to foreign spouses of their own nationals rules on entry and residence more favourable than those provided for by Community law.

…

25 The answer to the question referred for a preliminary ruling must therefore be that Article 52 of the Treaty and Directive 73/148, properly construed, require a Member State to grant leave to enter and reside in its territory to the spouse, of whatever nationality, of a national of that State who has gone, with that spouse, to another Member State in order to work there as an employed person as envisaged by Article 48 of the Treaty and returns to establish himself or herself as envisaged by Article 52 of the Treaty in the territory of the State of which he or she is a national. The spouse must enjoy at least the same rights as would be granted to him or her under Community law if his or her spouse entered and resided in the territory of another Member State."

60. It is clear from this judgment that it was based upon the premise that the EU national was exercising his Treaty rights to work, as an employed or self-employed person. Regulation 9 of the 2006 Regulations reflected this.
61. Under Article 14(2), the extended right of residence is only retained for as long as the Union citizen fulfils the conditions in Article 7. A Union citizen who ceases to work loses the right of residence, unless he falls within one of the exceptional categories in Article 7(3). Mr Benjamin sought to argue that he fell within Article 7(3) because he was caring for his disabled son instead of working, but this was never endorsed by the French authorities and in my view, could not have come within the scope of Article 7(3) as presently drafted.
62. As the Claimants correctly pointed out, in O & B v Minister voor Immigratie, Integratie en Asiel C-456/12 the CJEU Grand Chamber held that the principle extended to EU nationals and their family members who had acquired an extended or permanent right of residence in another Member State in accordance with the conditions in Articles 7 and 16 of the Directive. Therefore it was not limited to cases where such rights had been acquired through work in another Member State; it could also apply to those who had been financially self-sufficient. The Court held:

"54. Where, during the genuine residence of the Union citizen in the host Member State, pursuant to and in conformity with the conditions set out in Article 7(1) and (2) of Directive 2004/38, family life is created or strengthened in that Member State, the effectiveness of the rights conferred on the Union citizen by Article 21(1) TFEU requires that the citizen's family life in the host Member State may be continued on returning to the Member State of which he is a national, through the grant of a derived right of residence to the family member who is a third-country national. If no such derived right of residence were granted, that Union citizen could be discouraged from leaving the Member State of which he is a national in order to exercise his right of residence under Article 21(1) TFEU in another Member State because he is uncertain whether he will be able to continue in his Member State of origin a family life with his immediate family members which has been created or strengthened in the host Member State (see, to that effect, Eind, paragraphs 35 and 36, and Iida, paragraph 70).

55. A fortiori, the effectiveness of Article 21(1) TFEU requires that the Union citizen may continue, on returning to the Member State of which he is a national, the family life which he led in the host Member State, if he and the family member concerned who is a third-country national have been granted a permanent right of residence in the host Member State pursuant to Article 16(1) and (2) of Directive 2004/38 respectively."

63. Although the CJEU only gave judgment in March 2014, after the decisions under challenge in this case, the judgment reflects the Court's interpretation of the law as it existed in 2013, whether or not this was not appreciated by the UK immigration officials at the time.
64. In my judgment, O & B does not provide much assistance to the Claimants in their claim, since the basis of Mrs Benjamin's applications was that Mr Benjamin had been exercising his Treaty rights by working, not that he was self-sufficient. Indeed, the evidence was that the Claimants were heavily reliant on state benefits from the French and UK authorities, and plainly were not self-sufficient. There was no evidence or assertion that the family had comprehensive health insurance, as required under Article 7(1)(b).
65. Also, the judgment in O & B did not alter the onus of proof, and did not remove the Member State's entitlement to require Surinder Singh applicants for entry to establish that they met the qualifying conditions of residence in either Article 7 or Article 16. The Claimants submitted that, since they had acquired the right of permanent residence under Article 16, they were no longer subject to the qualifying conditions in Article 7, so the Defendant was not entitled to require evidence that Mr Benjamin was working or self-sufficient. However, the CJEU held in O & B that Member States were not required to grant a derived right of residence to a third-country family member merely because he held a residence card:

"60. So far as concerns Mr O who … holds a residence card as a family member of a Union citizen pursuant to Article 10 of Directive 2004/38, it should be borne in mind that Union law does not require the authorities of the Member State of which the Union citizen in question is a national to grant a derived right of residence to a third-country national who is a member of that citizen's family because of the mere fact that in the host Member State, that third country national held a valid residence permit (see Eind, paragraph 26). A residence card issued on the basis of Article 10 of Directive 2004/38 has a declaratory, as opposed to a constitutive, character (see Case C-325/09 Dias [2011] ECR 1-6387, paragraph 49)."

66. As the CJEU made clear in Case C-202/13 McCarthy v Secretary of State for the Home Department [2015] 2 CMLR 13, which I consider in more detail below, UK immigration officials were entitled to examine the authenticity of residence permits, and the correctness of the data appearing on them, and to "verify whether a person seeking to enter its territory in fact fulfils the conditions for entry, including those provided for by EU law" (at [63]-[64]).
67. The right of permanent residence under Article 16 can only be acquired by a person who has fulfilled one or more of the qualifying conditions in Article 7 during the five year period of continuous residence otherwise he would not have been residing in the host state "legally", within the meaning of Article 16(1). The onus was on the Claimants to show that they had genuinely acquired the right of residence under Article 16, by demonstrating that they had fulfilled the qualifying conditions for 5 years.
68. According to Mr Benjamin, much of the work he did, such as designing Apps and computer programmes, was speculative and unpaid. He hoped it might lead to paid work but, on the whole, it did not. Sometimes he was paid in kind rather than in cash. He and his family lived modestly, mainly off state benefits and an allowance from his father. The documents which he produced at Calais on 27 December 2013 indicated that:

i) In 2007, his total declared income was 1832 euros, derived from 30 days work.

ii) In 2008, his total declared income was 150 euros.

iii) In 2009, his total declared income was 1500 euros.

iv) There was no evidence of any income earned in France in 2010, 2011 or 2012.

69. The Claimants relied upon Levin v Staatssecretaris van Justitie Case 53/81 (endorsed as the "leading authority" on this question by the Court of Appeal in Barry v London Borough of Southwark [2008] EWCA Civ 1440 at [18]) in which the CJEU held that a person who pursues effective and genuine employment may be exercising Treaty rights, even though his income may be lower than subsistence level or he supplements his income from other sources. However, the CJEU made it clear, at [17], that the EU rights to freedom of movement "cover only the pursuit of effective and genuine activities, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary". Mr Benjamin produced very limited evidence of effective and genuine employment or self-employment. In my view, the Defendant's officials were entitled to conclude on the evidence before them that Mr Benjamin had not demonstrated that he was pursuing effective and genuine self-employment in France. The evidence suggested that, although registered as self-employed, in reality, he was relying on the State and his father to support him and his family, whilst he dabbled in projects which interested him but were non-remunerative.
70. Such evidence of employment and self-employment as there was indicated that the work in France had been intermittent and was carried out some years before the applications were made in 2013. There was only evidence of economic activity in France prior to 2010, not thereafter. The immigration officials were informed by Mrs Benjamin that Mr Benjamin ceased work in France at the end of 2010 because he had to look after his disabled son. We also now know that from 2010 until his departure for the UK in September 2012, he was heavily involved in a property purchase and renovation project in Miami, USA. He spent a good deal of time living in the USA and his family also joined him for some of the time - his third child was born in Florida in 2011. He had been residing in the UK since September 2012.
71. A sufficient degree of proximity is required between the exercise of Treaty rights in another Member State and the EU national's return to his home Member State in a Surinder Singh case.
72. Regulation 9(2)(a) of the 2006 Regulations requires that the British citizen "is" residing in another Member State as a worker or self-employed person, or "was so residing before returning to the United Kingdom".
73. In OB v. Secretary of State for the Home Department [2010] UKUT 420, the Upper Tribunal held that, although Surinder Singh did not address the period of time between employment in the host country and the return to the state of origin, the case law did establish the principle that the right of entry should not be restrictively interpreted and Community law must be interpreted sufficiently broadly to promote the objective of ensuring protection for the family life of nationals of member states. There had to be some link between the exercise of the Treaty rights and the return of the spouse to the UK, but there was no requirement that employment in the host state had to be established immediately before the return to the state of origin. It would be a matter of assessment in the individual case.
74. In this case, the Defendant's immigration officials were entitled to conclude that the requirements of regulation 9, even when given a broad purposive interpretation, were not met. Even if he had ever engaged in genuine and effective employment or self-employment in France, the evidence indicated it ceased in 2010, a long time before the applications in 2013 and Mr Benjamin's departure to the UK in September 2012. By December 2013, Mr Benjamin had not been residing in France for 15 months.
75. In conclusion, the immigration officials were entitled to conclude, based on the evidence provided by the Claimants, that Mr Benjamin had not been engaging in genuine and effective employment or self-employment in France sufficiently recently to entitle him and his wife to a Surinder Singh right of residence in the UK.

Ground 2: McCarthy v Secretary of State for the Home Department and the requirement for a visa

76. The Claimants' second ground of challenge, against the refusals to grant entry clearance on 15 and 27 December 2013, was that the Defendant was required under Community law to allow Mrs Benjamin entry to the UK upon production of a lawful residence card issued by a Member State. It was unlawful to require her to obtain a visa or to establish that she was exercising EU freedom of movement rights.
77. As Mr Lask helpfully observed, the Claimants' first ground was concerned with Mrs Benjamin's substantive right of entry to the UK, whereas their second ground was concerned with the procedural requirements for Mrs Benjamin's entry to the UK.
78. Article 5(2) of the Directive provides that possession of the "valid residence card referred to in Article 10" exempts family members who are not nationals of an EU Member State from any requirement to hold an entry visa (or equivalent formality) when seeking leave to enter the territory of an EU Member State.
79. In McCarthy, the CJEU held that, pursuant to Article 5, the third-country national spouse of a British citizen, who possessed a valid residence card under Article 10, could not lawfully be subjected to a requirement to apply for an EEA family permit (i.e. a visa) under regulation 11 in advance of entering the UK: McCarthy at [42] and [53].
80. Prior to the judgment in McCarthy, only residence cards issued by Germany and Estonia fell within the definition of "qualifying EEA State residence card" in regulation 2(1) and hence Article 10 residence cards issued in other Member States were not sufficient to entitle the family member of an EEA national to enter the UK under regulation 11(2). The definition of "qualifying EEA State residence card" has since been expanded to include all other EU and EEA States, reflecting the judgment in McCarthy: see Schedule 1, para. 1 of the Immigration (European Economic Area) Regulations 2015 (SI 2015/694).
81. On the facts in McCarthy, it was common ground that Mr McCarthy and his third-country national wife were beneficiaries of the Directive and were exercising their rights to free movement. McCarthy was therefore distinguishable from this case on its facts.
82. However, the broader issue of principle advanced by the UK Government was its lawful entitlement to exercise border controls, pursuant to Article 1 of Protocol no. 20 to the TFEU, which the CJEU acknowledged and upheld. Its judgment stated:

"59. It should be recalled that art.77(1)(a) TFEU states that the EU is to develop a policy with a view to ensuring the absence of any controls on persons, whatever their nationality, when crossing internal borders of the EU. The abolition of internal border controls forms part of the EU's objective, stated in art.26 TFEU, of establishing an area without internal frontiers in which the free movement of persons is ensured. That aspect of the absence of internal border controls was implemented by the EU legislature by adopting, on the basis of art.62 EC (now art.77 TFEU ), Regulation 562/2006 which seeks to build on the Schengen acquis (see, to this effect, judgment in Adil v Minister voor Immigratie, Integratie en Asiel (C-278/12 PPU) EU:C:2012:508 at [48]–[50]).

60. However, as the UK does not take part in the provisions of the Schengen acquis concerning the abolition of border controls and the movement of persons, including the common visa policy, art.1 of Protocol No 20 provides that the UK is to be entitled to exercise at its frontiers with other Member States such controls on persons seeking to enter the UK as it may consider necessary for the purpose of verifying, in particular, the right to enter the UK of Union citizens and of their dependants exercising rights conferred by EU law and of determining whether or not to grant other persons permission to enter the UK.

61. Those controls are carried out "at frontiers" and are intended to verify whether persons seeking to enter the UK have a right of entry under provisions of EU law or, in the absence of such a right, whether they should be granted permission to enter the UK. The controls therefore have the objective in particular of preventing the UK's borders with other Member States from being crossed unlawfully.

62. Thus, in the case of family members of a Union citizen who are not nationals of a Member State and who seek to enter the UK in reliance upon a right of entry provided for by Directive 2004/38, verification, for the purposes of art.1 of Protocol No 20, consists, in particular, in checking whether the person concerned is in possession of the documents prescribed in art.5 of that Directive. In this regard, even though the Court has held that residence permits issued on the basis of EU law, by nature, declare and do not create rights (judgments in Dias [2011] 3 CMLR 40 at [49], and O [2014] 3 CMLR 17 at [60]), the fact remains that, as has been established at [53] of the present judgment, the Member States are, in principle, required to recognise a residence card issued under art.10 of Directive 2004/38 , for the purposes of entry into their territory without a visa.

63. In accordance with its objective of preventing borders from being crossed unlawfully, verification, for the purposes of art.1 of Protocol No 20, may include examination of the authenticity of those documents and of the correctness of the data appearing on them as well as examination of concrete evidence that justifies the conclusion that there is an abuse of rights or fraud.

64. It follows that art.1 of Protocol No 20 authorises the UK to verify whether a person seeking to enter its territory in fact fulfils the conditions for entry, including those provided for by EU law. On the other hand, it does not permit the UK to determine the conditions for entry of persons who have a right of entry under EU law and, in particular, to impose upon them extra conditions for entry or conditions other than those provided for by EU law."

83. Accordingly, while McCarthy establishes that it is unlawful for the Defendant to insist on the possession of an EEA family permit by a family member of a UK citizen seeking to enter the UK, where that family member holds a valid residence card under Article 10 of the Directive, it remains lawful for the Defendant to determine, before granting entry, whether the family member in question in fact fulfils the conditions for entry provided by EU law. The legal position as clarified in McCarthy is reflected in regulations 11(2)(a) and 19(2)(b) of the 2006 Regulations, which together make clear that the family member of an EEA national may be admitted to the UK on presentation of a valid passport and a "qualifying EEA State residence card", but only provided that the EEA national has a "right to reside in the United Kingdom under these Regulations". The relevant regulation in this case was regulation 9.
84. I accept the Defendant's submission that the immigration officials at Calais were justified in investigating the validity of the Claimants' claim that they had acquired a permanent right of residence in France, not least because of the equivocal residence cards which they produced. The card in Mr Benjamin's name, dated 2009, did not indicate on its face that Mr Benjamin held a permanent right of residence pursuant to Article 16. It simply indicated that he was a beneficiary of the (repealed) Directive 73/148 i.e. as a self-employed person. Mr Benjamin told me that he had been in dispute with the French authorities over their refusal to grant him a permanent residence card but he did not disclose any correspondence about this and so I was unable to form a concluded view as to why he did not have a permanent residence card. At Calais, upon further investigation, Mr Benjamin was unable to establish to the satisfaction of the immigration officials that he had met the Article 7 conditions of employment or self-employment for a period of 5 years in France, so as to become entitled to a right of permanent residence in France.
85. Whilst Mrs Benjamin's card referred to a "séjour permanent", it was by no means clear from this that she had in fact obtained a permanent right of residence in France in accordance with Article 16 of the Directive. The card was issued on 6 July 2009, less than three years after Mrs Benjamin began living in France with Mr Benjamin. A family member's permanent right of residence under Article 16(2) arises only after five years' continuous legal residence with the Union citizen in the host Member State. This inevitably raised questions which required further investigation.

Ground 3: delay

86. The Claimants' third ground related only to the decision on 27 December 2013 when Mrs Benjamin arrived at Calais and was refused entry clearance. Both Claimants were interviewed and their case was considered by the Defendant's immigration officials. The process took about 10 hours. The Claimants contended that the Defendant contravened a clear rule of EU law that decisions with regard to EU freedom of movement must be immediate or very prompt.
87. The only express reference to such a rule which the parties were able to find was regulation 12(4) of the Regulations which provides that an EEA family permit must be issued "as soon as possible", reflecting the reference in Article 5(2) to visas being issued "as soon as possible and on the basis of an accelerated procedure".
88. I cannot accept the Claimants' submission that the Defendant's officials acted in breach of EU law on 27 December 2013. On the Claimants' arrival at the port, the immigration officers on duty that day were faced with a complex Surinder Singh claim which required investigation for a number of reasons. Mrs Benjamin had previously been refused entry to the UK and had been refused an EEA family permit. They conducted a detailed and comprehensive interview with both Claimants separately and considered the extensive documentary evidence that the Claimants had put forward. The authorisation of a Border Force Senior Officer (Ms. Eley) was sought for the decision reached by a more junior official, Border Force Officer Khan. In my judgment, the time taken was not unreasonable and was not unlawful.

Conclusions

89. For the reasons I have set out above, I have concluded that the Defendant acted lawfully in refusing to grant Mrs Benjamin an EEA family permit in November 2013 and refusing to grant her entry clearance to the UK in December 2013, because there was insufficient evidence to show that they fulfilled the requirements of EU and domestic law. I do not consider that it is appropriate to make a reference to the CJEU since the law has already been clarified in the recent case law referred to above, and these claims have failed on the facts, not on a point of law. The claims for judicial review therefore have to be dismissed, and the question of remedies does not arise.