Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2017] CSOH 47

P1049/16

OPINION OF LORD MULHOLLAND

In the cause

PW

Petitioner

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Petitioner: Caskie;  Drummond Miller LLP

Respondent:  Webster;  Office of the Advocate General

21 March 2017

Introduction

[1]        This is a judicial review of a decision of the respondent dated 25 October 2016 refusing to allow the petitioner to resume his residence in the United Kingdom (UK).

Immigration history
[2]        The petitioner is a Polish citizen.  He initially arrived in the UK during 2006.  He was joined by his Polish wife in 2007.  They have two children who were both born in the UK.  Whilst in the UK the petitioner has worked.  As at 25 October 2016 he was working as a taxi driver and a cleaner.  He has a criminal record in Poland and in 2008 returned to Poland to serve a prison sentence.  According to the petitioner he returned to the UK in 2011 having completed the sentence.  This date is disputed by the respondent who avers that on the balance of probabilities the petitioner has been resident in the UK since 2012 (page 3 of letter from Border Force Scotland West to the petitioner’s solicitors which is 7/1 of the inventory of productions).  Upon his return to the UK from a foreign holiday on 25 October 2016 he was refused entry to the UK on public policy grounds which are set out in a IS 82A notice which is 6/2 of the inventory of productions.  The notice specifies that the serious grounds of public policy/security are that the petitioner has a substantial criminal record in Poland for violent and drug offences.  The petitioner has appealed this decision by marking an “in country” appeal.  A date for the hearing of the appeal has not yet been fixed by the First-tier Tribunal. 

Legal basis of the dispute to be resolved by the Tribunal
[3]        The Immigration (EEA) Regulations 2006 (the Regulations) transpose into UK law the Qualification Directive, 2004/38/EC (EEA is an acronym for European Economic Area).  An EEA national is a national of an EU member state (other than the UK), Norway, Iceland, Lichtenstein or Switzerland (Regulation 2).  The Regulations gives EU/EEA citizens a right of residence in the UK for 3 months providing they hold a valid national identity card or passport issued by an EEA state (Regulation 13(1)).  In terms of Regulation 14, an EEA national can continue to live in the UK beyond the initial 3 month period for as long as they are a qualified person.  Regulation 6 defines a qualified person as a jobseeker, worker, self-employed person, self-sufficient person or a student.  It is not disputed by the respondent that the petitioner is a national of an EU member state (Poland) and is a qualified person in terms of Regulation 6.  An EEA national is automatically entitled to live permanently in the UK once they have lived here continuously for a period of 5 years, in line with EEA laws.  Although it is not compulsory, those who qualify can apply for a document certifying permanent residence (online or using an EEA(PR) application form) (Regulation 16).  The mode of proof is set out in Regulation 16.  The right of residence in the UK is subject to Regulation 19 which provides that an EEA national may be removed from the UK on the grounds of public policy, public security or public health.  This power is qualified by the terms of Regulation 21(5) which provides that a relevant decision (one taken on the grounds of public policy, public security or public health concerning a person’s entitlement to be admitted to the UK) must be taken in accordance with a number of principles.  These include that the:

“personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society”

(Regulation 21(5)(c)).  A person’s previous criminal convictions do not in themselves justify the decision (Regulation 21(5)(e)).  The vires of the respondent’s application of Regulations 19 and 21(5) to the petitioner is the issue to be determined by the First-tier Tribunal.  For the sake of completeness, the Immigration (European Economic Area) Regulations 2016, which came into force (for the most part) on 1 February 2017 have replaced the Immigration (EEA) Regulations 2006.  The new Regulations are mainly a consolidating exercise.  However, for the purpose of the petitioner’s refusal into the UK on 25 October 2016, the 2006 Regulations apply.

The issue raised by the Petition for judicial review
[4]        The issue raised by the Petition is whether the appeal is an in or out of country appeal.  The default position is that an appeal against a refusal to admit to the UK is an out of country appeal (Regulation 27(1)(a)).  However, in terms of Regulation 27(2)(a), Regulation 27(1)(a) does not apply where the person is in the UK and held a valid EEA family permit, registration certificate, residence card, derivative residence card, document certifying permanent residence, permanent residence card or qualifying EEA state residence card, on his arrival in the UK or can otherwise prove that he is resident in the UK.  The petitioner did not hold any of the said documents upon his arrival in the UK.  He relies on the last part of the provision:  “or can otherwise prove that he is resident in the UK.”  He avers that he has proved that he is resident in the UK by means of the evidence submitted on his behalf by his solicitors in a letter dated 28 October 2016 to the respondent (within 3 days of his arrival in the UK).  The evidence enclosed with the letter included copy passports, birth certificates, marriage certificate, tax credits, payslips, bank statements, correspondence and a certificate from Disclosure Scotland.  He also relies on the statement by the respondent in page 3 of the said letter from Border Force Scotland West to the petitioner’s solicitors that on the balance of probabilities the petitioner has been resident in the UK since 2012.  The petitioner submits that it would be absurd if the provision required such material to be held to be produced on arrival and such an interpretation would be inconsistent with the recitals in the directive which provide rights inherent in the person as opposed to the documentation.  The respondent, whilst acknowledging this material, avers that the terms of the provision must be read temporal upon his arrival in the UK.  As he did not have any of the said documents and could not otherwise prove that he was resident in the UK upon his arrival in the UK, his appeal is an out of country appeal.

Jurisdictional issue
[5]        The petitioner asserts that the First-tier Tribunal has no jurisdiction to determine whether the appeal to the First-tier Tribunal is an in country or out of country appeal.  The jurisdiction of the Tribunal is set out in Regulation 26(1) which provides that a person may appeal under these regulations against an EEA decision, defined in Regulation 2 as including a person’s entitlement to be admitted to the UK.  The definition of an EEA decision, and therefore the jurisdiction of the Tribunal, does not include whether or not the appeal is an in country or out of country appeal in terms of Regulation 27(1) and (2).  As the Tribunal cannot determine this question it falls to the Court of Session to determine it in terms of a judicial review.  The respondent asserts that the question of whether the appeal to the First-tier Tribunal is an in country or out of country appeal is to be determined by the First-tier Tribunal.  An in country appeal has been marked and the First-tier Tribunal will hear it in due course.  The issue as to whether the appeal, being an in country appeal, is competent is one for the Tribunal to take.  This is an issue which is incidental and ancillary to the appeal and it is appropriate that the Tribunal determine this matter.  As there is an alternative remedy and there are no special or exceptional reasons preventing the Tribunal from exercising it, judicial review is incompetent (McCue v GCC 2014 SLT 891 per Lord Jones at para 60 and MLC v SSHD [2015] CSOH 2).  The respondent also argued that no decision had been taken by the respondent as the petitioner on 25 October 2016 did not have the required documentation to prove residence in the UK and therefore he does not offer to prove that he is entitled to the “disapplication of Regulation 27(1) of the 2006 Regulations”. 

Decision
[6]        The jurisdiction of a court or tribunal is prescribed by statute or the common law.  In this case the appellate jurisdiction of the tribunal is set out in Regulation 26(1) which provides that a person may appeal under these regulations against an EEA decision.  An EEA decision is defined in Regulation 2 as meaning a decision under these regulations that concerns a person’s entitlement to be admitted to the UK.  In my opinion the word “concerns” has been carefully chosen by the drafters to be wide enough to encompass matters which are incidental or ancillary to the determination of a person’s entitlement.  Concern is defined in the Oxford dictionary as: 

“to have relation or reference to; to refer to; relate to; to be about a connection or association with.”

This is the meaning that the drafter intended and is the ordinary or natural meaning. It does not lead to an absurdity, in fact quite the opposite as it is common sense that the tribunal determines incidental matters such as whether it is an in country or out of country appeal. Such an issue is clearly concerned with the petitioner’s entitlement to be admitted to the UK.  If this was not intended then a more inflexible term would have been used.  The fact that “concerns” is used is indicative of Parliament intending that the Tribunal’s jurisdiction includes interim remedies, ancillary orders, whether an appeal is within time, or in proper form, or as in this case, the form of the appeal, namely whether it is an in country or out of country appeal.  In determining these questions the Tribunal is not determining a separate issue unrelated to the person’s entitlement to be admitted to the UK.  The Tribunal is determining an issue which concerns a person’s entitlement to be admitted to the UK, namely whether the appeal on the petitioner’s entitlement to be admitted to the UK is an in country or out of country appeal.  Once this issue on the form of the appeal is determined the Tribunal can proceed to determine whether or not the petitioner is entitled to be admitted to the UK.  I was advised by counsel for the petitioner and respondent that they are both aware of the Tribunal having decided such questions which is consistent with my interpretation of the Regulations.

[7]        As there is an alternative remedy open to the petitioner this court has no jurisdiction.  No special or exceptional reasons preventing the Tribunal from exercising jurisdiction were pled.  As a result, the issue of in country or out of country is for the Tribunal to determine.  With regard to the interpretation of Regulation 27(1) and (2) I have decided that on an esto basis it would be inappropriate to opine on the issue.  It is appropriate that the Tribunal decide the issue without my input.  This approach is also consistent with the respect that this court requires to give to specialist tribunals.  If I have erred on the jurisdiction issue then having heard full argument I would be in a position to issue a judgment on this matter.

Pleas in law
[8]        For the foregoing reasons I refuse the Petition and repel the petitioner’s plea-in-law and sustain the respondent’s fifth plea-in-law.  I reserve meantime all questions of expenses.