United Kingdom Asylum and Immigration Tribunal

RI (EC law – Chen – effect on proportionality) Uganda [2005] UKAIT 00125

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 9 August 2005

Date Determination notified: 31 August 2005

Before

Mr S.L. Batiste (Senior Immigration Judge)
Mr R.A. McKee (Immigration Judge)

Between

RI	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the appellant : Miss K Cronin of counsel, instructed by Hereward & Foster
For the respondent : Miss R Brown, Senior Presenting Officer

DETERMINATION AND REASONS

The case raises questions about the extent, if any, to which a non-EEA national with family ties to EEA nationals residing here can invoke their free movement rights in arguing that her own removal would be disproportionate in terms of Article 8. The ambit of the ECJ judgment in Chen, and of its manifestation at paragraph 257C of the Immigration Rules, is also considered, in the light of a contention that the requirement of self-sufficiency is not absolute. The case is being reported for these reasons.

1. On 12^th April 2005 a Senior Immigration Judge, on an application by the respondent for permission to appeal to the IAT, ordered that the determination of an adjudicator, Miss P. Clough, promulgated on 14^th March 2005, be reconsidered by the AIT, which had replaced both the IAT and the IAA on 4^th April this year. (By virtue of rule 2 of the Procedure Rules 2005, the terms 'appellant' and 'respondent' retain the referents they had before the adjudicator.)
2. It will be convenient to set out briefly what the history of this appeal is, before we turn to what actually has to be reconsidered. The appellant was born in Uganda on 17^th September 1985, and her account is that her mother, who was but one of several wives of her father, abandoned her at an early age, and came to this country. From early childhood the appellant was used by other relatives in Uganda as a domestic servant and childminder, although she also spent some time at boarding schools. However, in the year 2000, at the age of 15, the appellant was taken to the United Kingdom, where she rejoined her mother's household.
3. Her circumstances, unfortunately, were no better than they had been in Uganda. The appellant was put to work as a domestic servant in both her mother's and other people's households, and was physically abused. Things came to a head in April 2003, when the appellant was ejected from her mother's house, and took an overdose of Paracetamol. After three weeks as an in-patient at St Clement's Hospital, the appellant was provided with accommodation by Newham Social Work Department. Although the appellant is now over 18, this support continues under the provisions of the Leaving Care Act 2000. She has also been assisted since April 2003 by a Social Worker from the NSPCC.
4. There was another period in July 2003 when the appellant was feeling depressed and suicidal, and was re-admitted to St Clement's Hospital. It transpired that the appellant had not been included in an application made by her mother to regularize her own and her other children's status in the United Kingdom, so on the advice of the NSPCC the appellant claimed asylum in March 2004. Her problems had not prevented the appellant from forming a relationship some time in the year 2000 with a young Italian citizen, who had been living here with his family since 1983. In April 2004 a child of that relationship was born. At this time, the claimant's partner was a full-time student, but in December 2004 he completed his education, and at the date of the hearing before the adjudicator in February 2005, he was unemployed and in receipt of Jobseeker's Allowance of £86 per fortnight.
5. Meanwhile, the appellant's claim was refused in August 2004 under both the Refugee and Human Rights Conventions, and an appeal was lodged under s.82(1) of the Nationality, Immigration and Asylum Act 2002 on both asylum and human rights grounds. Having heard evidence from a Social Worker and from the claimant's partner, and having considered statements by two other Social Workers and by the appellant herself, the adjudicator dismissed the appeal under the Refuge Convention and under Articles 2, 3 and 14 of the European Convention. Her reasons are set out thus at paragraph 23 of the determination :

"I do not find that the Appellant has proved she has a well-founded fear of persecution if returned to Uganda. She is 19 years old, and I accept the welfare organisations in Uganda outlined in the Home Office's letter giving the reasons for refusal would be available to her if returned. The Appellant also has her father and a full brother in Uganda. While she may have lost touch with them I do not consider it would be difficult for her to re-establish contact. I came to these conclusions because of the paucity of evidence to support the Appellant's contention that she was trafficked from Uganda and prior to that was treated as a domestic helper from an earlier age for various families."

6. However, the adjudicator went on to allow the appeal under Article 8 and "EEA Law". She found that the appellant's partner had been involved in caring for his son, and was staying for three nights a week at the accommodation provided for the appellant by Newham Council. Accordingly, the appellant enjoyed family life with her partner and their child. "Mr ______," she continued at paragraph 26, "has no links with Uganda and would find it difficult to settle there. Removing the appellant would obviously disrupt their family life but it would be in accordance with the UK's immigration policy. However, I do not consider such removal would be proportionate in the circumstances here, especially having regard to the Appellant's accepted vulnerable status and the oversight of her and her child by the NSPCC and Newham Social Work Department. To remove her would be outside the range of any reasonable response in these circumstances."
7. The phrase with which the adjudicator began her next paragraph bulked large in Miss Cronin's submissions to us :

"In addition, it was argued that the Appellant's appeal should be considered by reference to Chen [now reported at [2004] Imm AR 333]. This case decided that the enjoyment by a young child of a right of residence in a member state necessarily implies that the child is entitled to be accompanied by the person who is his or her primary carer and the carer must be in a position to reside with the child in the host Member State for the duration of such residence. Article 18 EC and Directive 90/ 364 grant a right to reside for an indefinite period in the host Member State to a young minor who is the national of another Member State. They also allow a parent who is that minor's primary carer to reside with the child in the host Member State."

8. In the final paragraph of her determination, the adjudicator found that the appellant's child was an Italian national by descent from his father and that, while both his parents were reliant on public finances, that was not a situation which was likely to continue in the long term. Both the child and his father were exercising Treaty rights in the United Kingdom. For her part, the appellant also had a right to reside here as the child's primary carer, and the appeal was accordingly allowed under Article 8 of the ECHR, under Article 18 of the consolidated EC Treaty, and under Council Directive 90/ 364.
9. We may observe at this point that the Skeleton Arguments which were submitted to the adjudicator both by Miss Cronin and by Mr Johnson, the Presenting Officer, do not seem to have been read with very close attention, else paragraphs 27 and 28 of her determination would hardly have assumed the shape they did. Nor, it seems, was Mr Johnson's Skeleton Argument read by the Presenting Officer who drafted the Grounds of Appeal to the IAT, since he missed several points which a perusal of that document might have suggested to him. Only three points were in fact taken in the Grounds of Appeal :

(1) In paragraph 26, the adjudicator did not explain how it was that the respondent's decision fell outwith the range of reasonable responses open to him.

(2) In the same paragraph, the adjudicator failed to explain how there came to be "insurmountable obstacles" in Mahmood terms to the continuance of family life in Uganda.

(3) In paragraphs 27 and 28, the adjudicator did not adequately explain how she came to regard the appellant as the "primary carer" of the child in terms of Chen, since the father was also helping to look after the child.

10. Before us, Miss Brown very sensibly acknowledged that there was nothing in the third point. That point too was not included in the reasons given by the Senior Immigration Judge for ordering reconsideration. Three reasons were in fact given, but only one of them corresponded to a Ground of Appeal. This was the point about the appellant's fiancé facing insurmountable obstacles to joining the appellant in Uganda. The adjudicator's explanation at paragraph 26 that "he has no links with Uganda and would find it difficult to settle there" he regarded as a "plainly insufficient reason".
11. However, the SIJ's other two reasons went beyond the Grounds of Appeal. Referring to N, the SIJ thought it arguable "that the medical evidence did not establish the appellant could not return to Uganda." He went on to regard it as plainly arguable "that the appellant should apply to exercise her Treaty rights and that the Adjudicator was wrong to use Article 8 as a substitute for a proper consideration of such an application."
12. Before us Miss Brown acknowledged, again very sensibly, that these two reasons of the Senior Immigration Judge were barred from our consideration by Miftari [2005] EWCA Civ 481, since they had not been pleaded in the respondent's Grounds of Appeal. Both representatives also agreed that the adjudicator was in error by allowing the appeal under European law, which is what the Senior Immigration Judge may have been suggesting in his third reason for ordering a reconsideration. There had been no application by the appellant for a residence permit as the family member of an EEA national, and hence no decision under the EEA Regulations 2000 against which she could appeal. Miss Cronin told us that she had not asked the adjudicator to allow the appeal under Article 18 EC and Directive 90/ 364, but only to make findings of fact (although it has to be said that paragraphs 14 to 20 of Miss Cronin's Skeleton Argument before the adjudicator deal with 'The EEA Provisions', and end with the submission that "this appeal should be allowed as the removal decision is not in accordance with directly applicable EEA law").
13. It turns out, therefore, that we have no jurisdiction to consider the direct application of European law to this case, and that we are confined to the first two Grounds of Appeal – as we would have been in any event, on the Miftari principle – which are concerned solely with Article 8. It was also agreed before us that the appellant's partner is exercising Treaty rights in the UK, and that the appellant's child is Italian by descent from him (Italian nationality law no longer requiring legitimacy). Finally, it was clarified for us that the history recounted by the appellant was not in dispute.
14. The representatives having thus helpfully narrowed the issues for us, their submissions took the following course. Miss Brown argued that it was inconsistent of the adjudicator to find at paragraph 23 that the appellant could obtain the assistance of welfare organisations in Uganda and could also re-establish contact with her father and full brother there, so that Article 3 was not engaged, while finding at paragraph 26 that her "vulnerable status and the oversight of her and her child by the NSPCC and Newham Social Work Department" would put her removal "outside the range of any reasonable response."
15. Miss Brown observed that the Court of Appeal had handed down its judgment in Huang on 1^st March 2005, while Miss Clough did not sign off her determination till 9^th March. But whether the test in M*(Croatia) or the "truly exceptional" test in Huang were applied, the adjudicator was clearly wrong to find removal disproportionate. As the Senior Immigration Judge had stated, the appellant's partner's absence of links with Uganda was plainly not an insuperable obstacle to his relocating to that country to continue family life there.
16. Miss Brown also contended that the appellant could not bring herself within the ambit of the ECJ judgment in Chen, as her colleague, Mr Johnson, had explained in his Skeleton Argument. Miss Cronin, on the other hand, insisted that she could, and that this was very relevant to the assessment of proportionality, even though the appellant could not rely directly upon European law. Insofar as her removal would interfere with the free movement rights of her son and her fiancé, who were EEA nationals, rights under European law did form part of the assessment of proportionality, and it could be inferred from the ECJ's recent decisions that EU nationals should never be placed in a position where they had to choose between the exercise of Community law rights and the right to family life, as protected by Article 8. Thus, rather than needing to show "truly exceptional" circumstances in terms of Huang, the balance in an EEA case like the appellant's was somewhat different, and turned on the disproportion of the restriction on free movement.
17. In Miss Cronin's view, the adjudicator's consideration of Chen and European law at paragraph 27 of her determination was linked to her consideration of Article 8 at paragraph 26 by the phrase "in addition" coming at the start of paragraph 27. This showed that the EC law points were matters to which the adjudicator had regard in her overall assessment of proportionality. To Miss Brown's contention that the words "in addition" introduced a quite separate ground given by the adjudicator for allowing the appeal, not at all part of the Article 8 assessment, Miss Cronin sought a comparison in Mohamad Daoud [2005] EWCA Civ 755.
18. This was a case where the adjudicator had entirely disbelieved the appellant's account of what had happened to him in the Sudan, yet accepted that he belonged to the Massaleit tribe, which was being persecuted by Arab militias in Darfur. His reasoning on the latter point was introduced by the connective "thus", which Miss Cronin likened to "in addition" in the instant case. The court lamented the adjudicator's failure to spell out the process of reasoning which led him to conclude that the appellant was of the Massaleit tribe, despite his lack of credibility in other respects. But they were prepared to accept, "on the facts and in the mode of dealing with the facts in this particular decision", that the adjudicator could be understood to have given adequate reasons.
19. We do not see how Daoud assists Miss Cronin. It was clearly decided on its own particular facts, where differential credibility findings were said to be unsupported by a proper process of reasoning. In the instant case, Miss Cronin would like to read across the contents of paragraph 27, where the adjudicator deals with European law, into paragraph 26, where she deals with Article 8. But it is clear from any straightforward reading of the text that Miss Clough first examines in paragraph 26 those matters which lead her, at #31, to allow the appeal under Article 8, and then goes on at paragraph 27 to examine the matters which lead her, at #32, to allow the appeal under Article 18 EC and Directive 90/ 364. The introductory words to paragraph 27 ("in addition") do not mean that she is giving an additional reason for allowing the appeal under Article 8, but that she is setting out a different ground for allowing the appeal, additional to Article 8.
20. We should also say at this point that the adjudicator appears to have misunderstood the effect of Chen. Article 18 EC and Directive 90/ 364 do not, as she seems to express it at paragraph 27, grant an unqualified right to a minor child who is an EEA national, and to the primary carer of that child who is a non-EEA national, to reside indefinitely in another Member State. The final paragraph of the judgment in Chen sums up the conclusions of the European Court in these terms (with emphasis added by us) :

"Article 18 EC and Directive 90/ 364 confer on a young minor who is a national of a Member State, is covered by appropriate sickness insurance and is in the care of a parent who is a third-country national having sufficient resources for that minor not to become a burden on the public finances of the host Member State, a right to reside for an indefinite period in that State. In such circumstances, those same provisions allow a parent who is that child's primary carer to reside with the child in the host Member State."

21. At paragraph 28 of her determination, the adjudicator accepted a submission from Miss Cronin that, although both the mother and the father of the appellant's child were reliant on public finances, that situation was unlikely to continue in the long term. The father was seeking work and, as Miss Cronin explained to us today, the care which the mother was still receiving was geared towards making her self-reliant in the future. But the fact remains that the child is not covered by sickness insurance and, both at the date of decision and at the date of the adjudicator hearing, was a burden on the public finances of the host state (which expression is to be interpreted more widely than the 'public funds' listed at paragraph 6 of the Immigration Rules). The adjudicator notes that the child "accesses services by virtue of his age." But as the ECJ held in Chen, the receipt of child care services by the child was insufficient to create a right of residence under Directive 73/ 148, while Directive 90/ 364 only conferred a right of residence upon those covered by sickness insurance, who had sufficient resources to avoid becoming a burden on the host state.
22. The adjudicator was therefore wrong to say that "both the child and his father are exercising their Treaty Rights in the United Kingdom." Only the father has been doing that. Miss Cronin urges us to follow the guidance of her colleagues Rogers and Scannell, the learned authors of 'Free Movement of Persons in the Enlarged European Union', who detect a "softening" of approach by the ECJ in the light of Article 18 EC. But we do not think this entitles us to go beyond the ECJ in Chen and recognize a right to reside under European law for an EEA national child and his non-EEA national parent, when neither of them is covered by sickness insurance and both of them are reliant on public finances.
23. As a result of Chen new paragraphs 257C, D and E were inserted into HC 395 from 1^st January 2005 (thus predating the hearing before the adjudicator, although no mention of them is made in her determination). These provide for "leave to enter or remain as the primary carer or relative of an EEA national self-sufficient child", which the appellant clearly is not. Miss Cronin does not think that 'self-sufficient child' accurately reflects the requirement of Directive 90/ 364 not to become a burden on the public finances of the host state, but we think that, as a form of shorthand, it serves the purpose well enough.
24. To sum up, then, the appellant's son, although an EEA national, is not exercising Treaty rights in the UK. The appellant's fiancé is exercising Treaty rights, but the appellant is not a 'family member' of his as defined by Regulation 6 of the EEA Regulations 2000, not being married to him. The appellant therefore derives no rights at all from European law, which might affect the assessment of proportionality under Article 8. We do not see how, in any event, a person with no right to reside in the UK can be in a better position through having an Italian boyfriend than a British one, in terms of the balancing exercise to be carried out under Article 8. As is now well-known, the rights of other family members who are not being removed are not for consideration on an appeal in this jurisdiction under Article 8. The effect upon them of the appellant's removal can only be considered indirectly, as it impacts upon the appellant herself. The fact that these family members might be here by virtue of EU free movement rights is irrelevant to the assessment of proportionality under Article 8, particularly when the person appealing under Article 8 does not derive any rights under European law from her connexion with them.
25. We are left, then, only with the question whether the adjudicator made a material error of law in her assessment of proportionality. We find that the reasons which she gave at paragraph 26 of her determination are flawed by such an error. Her reference to the appellant's "accepted vulnerable status and the oversight of her and her child by the NSPCC and Newham Social Work Department" as engaging Article 8 contradicts her earlier finding that Article 3 is not engaged because the appellant will have access to welfare organisations in Uganda and will be able to re-establish contact with family members there. Nor is the adjudicator's finding that the appellant's partner "has no links with Uganda and would find it difficult to settle there" sufficient to overcome the third of the guidelines laid down by Lord Phillips MR in Mahmood [2001] INLR 1, which contemplates the family moving to the country to which one of its members is being expelled, provided there are no "insurmountable obstacles" to their living together in that country. There is nothing so 'truly exceptional' about this case in Huang terms as to justify overriding the Immigration Rules.
26. We would mention in closing that, although the appellant fails under Article 8, she can apply for a residence document under the EEA Regulations, and the application will of course be assessed in the light of her current circumstances, including the fact that her boyfriend is now working.

DECISION

The adjudicator having made a material error of law, we substitute a fresh decision to dismiss the appeal under Article 8 of the ECHR. There is no appeal before us on EC law grounds.

Richard McKee

16^th August 2005