QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(SITTING AS A DEPUTY JUDGE OF THE HIGH COURT)
| R (on the application of Ehsan ULLAH)
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Zane Malik (instructed by Government Legal Department) for the Defendant
Hearing date: 20 July 2017
Crown Copyright ©
John Cavanagh QC:
"Because your application falls for refusal on this basis, no further consideration has been given to the other evidence that you have supplied in support of your application. If you are able to supply the necessary identity document, you may wish to submit a further application for consideration."
The Legislative Background
"(4) The Secretary of State may issue a residence card to an extended family member not falling within regulation 7(3) [which has no application in the Claimant's case] who is not an EEA national on application if
(a) the application is accompanied or joined by a valid passport;
(b) the relevant EEA national is a qualified person or an EEA national with a right of permanent residence under regulation 15; and
(c) in all the circumstances it appears to the Secretary of State appropriate to issue the residence card."
"(5) Where the Secretary of State receives an application under paragraph (4) an extensive examination of the personal circumstances of the applicant must be undertaken by the Secretary of State and if the application is refused, the Secretary of State must give reasons justifying the refusal unless this is contrary to the interests of national security."
"42. Alternative evidence of identity and nationality
(1) Subject to paragraph (2), where a provision of these Regulations requires a person to hold or produce a valid national identity card issued by an EEA State or a valid passport, the Secretary of State may accept alternative evidence of identity and nationality where the person is unable to obtain or produce the required document due to circumstances beyond the person's control."
Ground 1: the Secretary of State's decision letter did not specify the statutory instrument that the Secretary of State believed was to be applied and/or the Secretary of State mistakenly thought that she was applying the 2006 Regulations
Ground 2: regulation 18(4) does not require the Claimant to provide his own passport to accompany his application for a residence card
i) regulations 11(1) and 11(2), concerning the right of admission to the UK by EEA nationals and non-EEA nationals, respectively;
ii) regulations 13(1) and (2), concerning the initial right of residence of EEA nationals and non-EEA nationals, respectively;
iii) regulations 17(1), (3) and (4), concerning the issue of a registration certificate to EEA nationals (in which cases a valid national identity card or passport will suffice);
iv) regulations 18(1) and (2), which concern the mandatory issue of a residence card to non-EEA nationals who satisfy certain conditions (in which cases only a passport will suffice);
v) regulations 19(1) and (2), which concern the issue of a document certifying permanent residence and a permanent residence card to EEA nationals and non-EEA nationals, respectively; and,
vi) regulation 20(1) and (2), which concern the issue of a derivative residence card to EEA nationals and non-EEA nationals, respectively.
"21(5) Where an application for documentation under this Part is made by a person who is not an EEA national on the basis that the person is or was the family member of an EEA national or an extended family member of an EEA national, the application must be accompanied or joined by a valid national identity card or passport in the name of that EEA national."
Ground 3: the Secretary of State acted in an irrational manner in declining to accept the Claimant's identity card in place of his passport
"Proof of nationality and identity
- Your valid passport, travel document or (if you're an EEA national) national identity card
- Valid passport, travel document or EEA national identity card for each family member included in your application (if applicable)
- Valid passport or national identity card for your sponsor (named in section 2).
If you're not able to submit a valid passport, travel document or national identity card for you, your sponsor or any family members included in your application, you must explain why .. and submit alternative evidence of your/their identity or nationality.
Please note: We can only accept alternative evidence of your identity and nationality if you are unable to submit a valid passport, travel document or EEA national identity card due to circumstances under your control."
"If you are not submitting a valid passport, travel document or national identity card, please say why in the box below and submit alternative evidence of your identity and nationality (continue on a separate sheet if necessary)."
The section to be filled in was left blank in the Claimant's application form.
Reference to the CJEU