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SY and Others (EEA regulation 10(1), dependancy alone insufficient) Sri Lanka [2006] UKAIT 00024 (07 March 2006)
URL: http://www.bailii.org/uk/cases/UKIAT/2006/00024.html
Cite as:
[2006] UKAIT 24,
[2006] UKAIT 00024
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SY and Others (EEA regulation 10(1) – dependancy alone
insufficient) Sri Lanka [2006] UKAIT 00024
ASYLUM AND IMMIGRATION TRIBUNAL
Date of hearing: 20 January 2006
Date Determination notified: 07 March 2006
Before
MR P R LANE (SENIOR IMMIGRATION JUDGE)
SIR JEFFREY JAMES
Between
SY |
APPELLANT |
and |
|
Secretary of State for the Home
Department |
RESPONDENT |
For the Appellants Miss E Power, Solicitor, of the Windsor and Merton
Law Centre
For the Respondent: Mr M Montilla, Senior Home Office Presenting
Officer
DETERMINATION AND REASONS
LS (EEA Regulations 2000 – Meaning of 'Dependant') Sri Lanka [2005] UKAIT 00132 is not authority for the proposition that, once a person has shown
that he is dependent on an EEA national or his spouse, the person concerned is
entitled without more to an EEA family permit or a residence document, as the
case may be. As the wording of regulation 10(1) of the Immigration (European
Economic Area) Regulations 2000 makes plain, the respondent has a discretion
whether to grant such a permit and that discretion is not incompatible with
the underlying EEA legislation.
- The appellants are all citizens of Sri Lanka, born
respectively on 3 March 1969, 11 September 1966, 23 August 1968 and 20
November 1969. They are all relatives of two citizens of the Netherlands, of
Sri Lankan origin, to whom we shall refer as SM and JR. SM is working in the
United Kingdom in a self-employed capacity and JR has been issued with a
residence permit as his spouse. The first appellant is the sister of JR. The
fourth appellant is married to the first appellant. The second and third
appellants are married to sisters of JR.
- On 23 December 2004 the appellants applied for
residence documents to be issued to them under regulation 10 of the
Immigration (European Economic Area) Regulations 2000 ('the 2000
Regulations"). On 22 March 2005 the respondent decided to refuse to issue
the appellants with such documents. The respondent's notices of decision are
in the same form in respect of each of the four appellants. The first
appellant is described in her notice of decision as 'an adult aged sister of
' JR, whilst the second, third and fourth appellants are each described as
'an adult aged brother-in-law of' JR. Each notice contains the statement
that the respondent was 'satisfied that you have failed to demonstrate that
you are generally dependent upon your EEA family member and the Secretary of
State is not prepared to issue the confirmation that you seek.'
- The appellants appealed against these decisions to
an Immigration Judge, Mr N. Froom, sitting at Hatton Cross, who by a
determination promulgated on 6 October 2005 dismissed the appellants'
appeals. On 19 October 2005, reconsideration of the Immigration Judge's
decision was ordered under section103A of the Nationality, Immigration and
Asylum Act 2002
- The grounds upon which reconsideration was ordered
observe that the Immigration Judge, having found that each of the appellants
was dependent upon JR, erred in law in deciding nevertheless to dismiss the
appeals on the basis that the decision whether to issue a residence permit
under regulation 10 was a discretionary one, and that none of the appellants
merited the exercise of discretion in his or her favour. The grounds contend
that, having found the appellants to be dependent on an EEA national or his
spouse, that is to say, JR, the respondent's stated reason for refusing each
of the applications was wrong and the Immigration Judge ought therefore to
have found that residence documents should be issued to the appellants. The
grounds cite LS (EEA regulations 2000 – Meaning of 'Dependant') Sri
Lanka [2005] UKAIT 00132 as authority for the proposition that, once dependancy has
been established as a matter of fact, the appeals fell to be allowed.
- Regulation 10 of the 2000 Regulations reads as
follows:
'10. Dependants and members of the household of EEA
nationals
(1) If a person satisfies any of the conditions in
paragraph (4), and if in all the circumstances it appears to the
decision-maker appropriate to do so, the decision-maker may issue to
that person an EEA family permit, a residence permit or a residence
document (as the case may be).
(2) Where a permit or document has been issued under
paragraph (1), these Regulations apply to the holder of the permit or
document as if he were the family member of an EEA national and the
permit or document had been issued to him under regulations 13 or
15.
(3) Without prejudice to regulation 22, a decision-maker
may revoke (or refuse to renew) a permit or document issued under
paragraph (1) if he decides that the holder no longer satisfies any of
the conditions in paragraph (4).
(4) The conditions are that the person is a relative of an
EEA national or his spouse and –
(a) is dependent on the EEA national or his
spouse;
(b) is living as part of the EEA national's household
outside the United Kingdom;
or
(c) was living as part of the EEA national's household
before the EEA national came to the United
Kingdom.
(5) However, for those purposes 'EEA national' does not
include-
(a) an EEA national who is in the United Kingdom as a
self-sufficient person, a retired person or a
student;
(b) an EEA national who, when he is in the United
Kingdom, will be a person referred to in sub-paragraph
(a).'
- Although the appellants' advisors and the
Immigration Judge have referred from time to time in the course of these
appeals to 'permits', it is relevant to observe that what each of the
appellants sought, and were refused, was a 'residence document', which is
defined in regulation 2 of the 2002 Regulations as follows:
'"residence document" means a document issued to a person
who is not an EEA national, in accordance with regulations 10 or 15,
as proof of the holder's right to residence in the United
Kingdom'.
- Before the Immigration Judge, the respondent
argued that the appellants' appeals should be dismissed for three reasons:
first, some or all of the appellants were not 'relatives' of SM; secondly,
at least some of the appellants were not 'dependent' because they were
themselves working; and thirdly, regulation 10 of the 2000 Regulations
created a discretionary power and the exercise of that power in the present
cases 'had been appropriate' (paragraph 25 of the determination). The
Immigration Judge found in favour of the appellants in respect of the first
and second issues but, as we have already observed, he found against them on
the third.
- At paragraph 19 of his determination, the
Immigration Judge set out the facts found by him. Each of the appellants
lived in a household comprising himself or herself, SM, JR and the children
of JR and SM. All of the appellants were residing in the United Kingdom at
the time when SM and JR exercised their Treaty rights in coming to the
United Kingdom from the Netherlands in August 2003. The appellants are 'all
failed asylum seekers'. The Immigration Judge found that the first, third
and fourth appellants earned enough to 'make relatively significant
contributions to the household expenses, albeit that they are in low-paid
employment'.
- In deciding whether the appellants were
'relatives', the Immigration Judge considered the determination of the
Immigration Appeal Tribunal in PB and Others (Goa: EEA discretionary
permit; interpretation) India [2005] UKIAT 00082. The Immigration Judge noted that the Tribunal in that
case found that 'relative' must be intended to have a wider meaning than
'family member' (paragraph 9 of that determination). The Immigration Judge
also observed that it was sufficient for a person to be a relative, either
of the person exercising Treaty rights or of that person's spouse. In the
present case, the appellants were related to JR. The Immigration Judge found
that there 'can be no question that [the first appellant] qualifies as her
sister. The other three appellants are JR's brothers-in-law. There is no
requirement for a blood relationship. I would find that all the appellants
are relatives for the purpose of [regulation] 10(4)' (paragraph 21).
- The Immigration Judge, at paragraph 22 of his
determination, found that PB also assisted him in finding that
dependancy for the purposes of the 2000 Regulations 'is a question of fact
and there is no requirement that the dependancy be of necessity'. The
Immigration Judge found as a fact that the family comprising the appellants,
SM and JR, lived 'on the basis of a pooled income and shared expenses' but
that the house in which they lived was provided by SM and JR, who had
purchased the property before moving to the United Kingdom, 'with a view to
providing a home large enough for all of them to reside in'. Particularly
bearing in mind the issue of accommodation, the Immigration Judge found that
'all the appellants are mutually dependent with each other and JR and SM'.
Although the Immigration Judge did 'not exclude an element of emotional
dependancy', he noted that the evidence on that issue 'was not developed and
I give most weight to the material dependancy. I find all the appellants are
dependent'.
- No reply has been filed by the respondent,
seeking to uphold the dismissal of the appeals on the basis that the
Immigration Judge was wrong to find in favour of the appellants on the
issues of relationship and dependancy. At paragraph 23 of the determination,
the Immigration Judge turned to 'the issue of whether the exercise of
discretion by the respondent not to issue permits' had been correctly made.
As we shall later explain, the Immigration Judge fell into error by assuming
that the respondent, in the notices of decision, had in fact exercised a
discretion under regulation 10 of the 2000 Regulations. In considering the
issue of discretion, the Immigration Judge had regard to chapter 2 of the
respondent's European Directorate Instructions 'Residence Documents (non-EEA
Family Members of EEA Nationals)'.
- Paragraph 2.4 of those Instructions observes
that regulation 10 of the 2000 Regulations 'covers more distant family
members' than the spouse, children and dependants in the ascending line of
an EEA national or of his or her spouse (see regulation 6 ('family
member')). Paragraph 2.4 gives guidance to the respondent's caseworkers on
the practical operation of regulation 10. The Immigration Judge set out in
his determination the following passage from chapter 2.4:
'When deciding whether it is appropriate in all the
circumstances to issue a residence permit/document, caseworkers will
need to assess whether refusing the family member would deter
the EEA national from exercising his/her treaty rights or would create
an effective obstacle to exercise of Treaty rights. Each case must be
assessed on an individual basis but an example of where it might be
appropriate to issue a residence permit/document would be if the
family member were very elderly or incapacitated. In assessing such
cases, it would be important to consider whether there were any
relatives to care for them in their home country.
Cases falling for refusal
Where an applicant has produced evidence that they are
financially dependent on the EEA national, (for instance they may be
currently unemployed) caseworkers should consider whether there is any
reason to suggest that the EEA national could not send money back to
the third country national's home country.' (authors' emphases).
In considering cases under Article 10 (sic) we would
normally refuse those who have for example:
- lived in a third country whilst the EEA national has
resided in another Member State prior to entering the United
Kingdom;
- lived as part of the EEA national's household many years ago;
- have their own family unit (unless there are sufficient
compassionate circumstances)'.
- Having set out those extracts from chapter 2.4
of the EDI, the Immigration Judge concluded as follows:
'24. PB India, when discussing [regulation]
10(4)(c) also considers the general approach to interpreting the
Regulations. At paragraph 11 the Tribunal stated, 'The purpose of
the Regulations we are considering is to enable a qualified person –
that is to say, an EU national exercising Treaty rights – to exercise
his rights freely , without being hindered or discouraged by having to
leave family members behind when he exercises his rights.' I do
not agree with Miss Power [the appellants' solicitor] that the
Tribunal were there solely concerned with 10(4)(c). The authors of
Freedom of Movement of Persons in the Enlarged European
Union, first edition, suggest a similar approach. For example,
at 10-78-79, they note the ECJ's consideration of whether exclusion
would constitute an obstacle to free movement in Baumbast
C-413/99.'
25. On the facts of this case, all the appellants were
already residing in the UK, when SM and JR moved here in exercise of
Treaty rights. JR had lost touch with SA and other family members for
many years after leaving Sri Lanka. SM and JR moved as a family with
their children, who had been residing with them in the Netherlands,
although [...] had gone ahead. In no sense can the decision be
considered as an obstacle to that exercise of free movement. JR and SM
have welcomed JR's extended family into their home but that occurred
extraneously to the exercise of Treaty rights. In fact it was only
made possible by the exercise of Treaty rights by JR and
SM.
26. I have balanced all the circumstances, including the
dependancy. However, I note [the first and fourth appellants] have
their own family unit. [The second and third appellants] are
temporarily separated from their wives. The appellants are all
relatively young and have no health problems. I do not consider the
present situation is appropriate for a positive exercise of discretion
and I dismiss the appeals.'
- For the appellants, Miss Power's primary
submission was essentially as follows. Once the Immigration Judge had found
as a fact that the appellants were relatives of the spouse of an EEA
national and that they were dependent upon that person, or the EEA national,
the appeal fell to be allowed without more, and the Immigration Judge was
accordingly wrong in law to rely upon a discretion that does not in reality
exist. Both in the grounds accompanying the application for reconsideration
and at the hearing before the Tribunal on 20 January 2006, Miss Power sought
to rely upon the reported determination of the Tribunal in LS,
which was notified on 29 September 2005 (the date on which the Immigration
Judge heard the appellants' appeals). The Tribunal in LS
considered the question of whether dependancy for the purposes of regulation
10 of the 2000 Regulations required a finding of dependancy of necessity. At
paragraphs 6 and 7 of its determination, the Tribunal found as follows:
'6. Even if dependancy of itself be required, it would in
our view be arguable that it was satisfied in this case: it was
because British legislation prevented the appellant from working that
he had to rely on the sponsor. However, the only authority to which we
were referred by either side as to the meaning of 'dependant' in the
European legislation was (by Mr Mukherjee) Lebon (ECJ case
316/85,) judgment 18 June 1987). Lebon dealt not with
freedom of movement, but with entitlement to benefits under regulation
10 of Regulation 1612/68: however, 1612/68 was the foundation for our
2000 Regulations ... There is in our view no reason to interpret
'dependent' in different ways for the purposes of the same piece of
European legislation. What Lebon decided, on the point
in issue (see ruling 2) was this:
"The status of dependent member of a workers'
family ... is the result of a factual situation, namely the
provision of support by the worker, without there being any need
to determine the reasons for recourse to the worker's support."
7. While strictly nothing we say on this point is
necessary to our decision, if the withdrawal of permission to work
meant that the appellant was on any conceivable test dependent on the
sponsor by the date of the decision under appeal, we have to say that
in our view Lebon means that, if a claimant is at the
date of the decision dependent on a European Union citizen exercising
Treaty rights here as an ordinary matter of fact (and clearly
financial dependancy is what is meant here), then there is no room for
doubt or for going into the reasons for the dependancy. It follows
that this appeal must be allowed.'
- We do not consider that the last sentence of
paragraph 7 of the Tribunal's determination in LS can properly
be said to be support for the proposition that, once dependency is found,
the discretionary power in the decision-maker conferred by the opening words
of regulation 10(1) must be disregarded. Miss Power, who was the instructing
solicitor for the appellant in LS, told us that this had, in
fact, been the thrust of the skeleton argument that had been put before the
Tribunal in LS. That may be so but for whatever reason the
Tribunal in that case did not have the benefit of hearing argument on the
matter. Whatever may have been the respondent's stance in LS,
Mr Montilla, who appeared for the respondent before us, vigorously argued
that regulation 10(1) could not be given such an interpretation.
- This Tribunal has no doubt that, as a matter of
statutory construction, the opening words of regulation 10(1) mean what they
say. If a person satisfies any of the three conditions specified in
regulation 10(4), the decision-maker, which, for present purposes, means the
Secretary of State (see regulation 2 (1)) may issue that person with the
requisite document if in all the circumstances it appears to the
decision-maker appropriate to do so. If it does not appear appropriate, then
(subject to the Wednesbury principle), the decision-maker does
not have to issue the document. As is plain from the determination in
PB, a clear distinction is drawn in the 2000 Regulations
between a 'family member,' who is entitled to the relevant document, and
those who must rely upon regulation 10. In PB, the
decision-maker had erred in failing to consider the position by reference to
regulation 10(4)(c), as a person who had been living as part of the EEA
national's household before the latter came to the United Kingdom:
'It is however common ground that the Entry Clearance
Officer ought to have considered whether [the appellants] fall within
Regulations 10(4)(c) and, if so, ought further to have considered
whether to exercise his discretion in their favour' (paragraph 14 of
the determination).
The Tribunal in PB was, accordingly, in no doubt that
satisfaction of regulation 10(4) was a necessary but, nevertheless, not a
sufficient condition to succeed under that regulation.
- Miss Power's alternative submission was that,
regardless of what the wording of regulation 10(1) might be, the underlying
EEA legislation confers no discretion upon the decision-maker to refuse to
issue a permit or document to a person who satisfies regulation 10(4).
- It is common ground that the 2000 Regulations
are intended to give effect to relevant provisions of Regulation (EEC No.
1612/68) of the Council of 15 October 1968 on Freedom of Movement for
Workers within the Community ("the EEC Regulation"). The Preamble to the EEC
Regulation makes it plain that the purpose is that the 'freedom of movement
for workers' should be secured within the Community'; that such freedom of
movement constitutes a fundamental right of workers and their families, and
that mobility of labour within the Community 'must be one of the means by
which the worker is guaranteed the possibility of improving his living and
working conditions and promoting his social advancement, while helping to
satisfy the requirements of the economies of the Member States'; and that
that freedom of movement, in order that it may be exercised, requires that
'obstacles to the mobility of workers shall be eliminated, in particular as
regards the worker's rights to be joined by his family and the conditions
for the integration of that family into the host country'.
- Article 10 of the EEC Regulation reads as
follows:
'Article10
1. The following shall, irrespective of their nationality,
have the right to install themselves with a worker who is a national
of one member state and who is employed in the territory of another
member state:
(a) his spouse and their descendants who are under the
age of 21 years or are
dependant
(b) dependent relatives in the ascending line of the
worker and his spouse.
2. Member states shall facilitate the admission of any
member of the family not coming within the provisions of paragraph 1
if dependent on the worker referred to above or living under his roof
in the country whence he comes.
3. For the purposes of paragraphs 1 and 2, the worker must
have available for his family housing considered as normal for native
workers in the region where he is employed; this provision must,
however must not give rise to discrimination between national workers
and workers from the other member
states.'
- Miss Power submitted that the word 'facilitate'
in Article 10(2) of the EEC Regulation did not entitle the United Kingdom
government to confer upon itself a discretion in respect of the admission of
members of the family not coming within Article 10(1). Relying upon the
dictionary definition of 'facilitate' as 'to make easy', she contended that,
once a person showed himself to be a member of the family of the worker and
to be dependent on that worker or living under the same roof in the country
whence he came, there is a legal presumption that that family member shall
be admitted to the United Kingdom.
- The Tribunal does not find that paragraph 2 of
Article 10 of the EEC Regulation 1612/68 is incompatible with regulation
10(1) of the 2000 Regulations so as to entitle us to disregard the
discretionary aspect of Regulation 10(1). On any reading, paragraph 2 of
Article 10 of the EEC Regulation is not conferring upon the member of the
family any right of admission to a Member State. A clear distinction is
being drawn between those falling within paragraph 1 (who have such a right)
and those having to rely upon paragraph 2. The existence of the discretion
in regulation 10(1) of the 2000 Regulations is, we find, perfectly
compatible with the underlying EEC Regulation.
- As we have already observed, the respondent has,
through its European Directorate, produced instructions to its caseworkers
on how to exercise the discretion in regulation 10(1). Immediately before
the paragraph from the EDI quoted by the Immigration Judge (see paragraph 12
above), there is to be found the following statement:
'The Directives (sic) refer to facilitating or
favouring the admission of any member of the family who meets
any of the above conditions providing that a person falls within one
of these categories, you may issue a residence permit or residence
document if in all the circumstances it applies appropriate to
do so' (authors' emphases).
The reference to the above conditions is a reference to those contained
in regulation 10(4)(a) to (c).
- As is plain from the paragraph which follows the
one just quoted, the United Kingdom government has seen fit to give effect
to the requirement upon it to facilitate admission by focussing on the
underlying purpose of the EEA Regulation, as set out in its Preamble. The
EDI also emphasises that 'each case must be assessed on an individual
basis', although examples are given of cases where the decision maker would
normally refuse an application. Each of the three examples given is one
where, in reality, the EEA national is unlikely to be able to show that his
exercise, or continued exercise, of his rights as a worker is connected with
the presence of the family member concerned. For our part, the Tribunal is
satisfied that the wording of regulation 10(1), and that of chapter 2.4 of
the EDI, is compatible with the provisions of Article 10 of the EEC
Regulation. In any event, it is plainly not the case that an appellant is
entitled to have his appeal allowed, regardless of regulation 10(1) of the
2000 Regulations, provided only that he has satisfied regulation 10(4).
- Miss Power submitted that the issuing of a
residence document was, strictly speaking, immaterial in that the appellants
had an underling EEC right to be in the United Kingdom. That submission is,
we find, erroneous. As we have seen, a distinction is drawn between
paragraph 1 and paragraph 2 of Article 10 of the EEC Regulation. A person
falling within paragraph 2 has no right of entry to the United Kingdom
unless and until the United Kingdom government has facilitated his admission
to this country. That point is clearly brought out by regulation 10(2) of
the 2000 Regulations, which provide that a person is to be treated 'as if he
were the family member of an EEA national' only where 'a permit or document
has been issued under paragraph (1).'
- As Mr Montilla conceded at the reconsideration
hearing, the Immigration Judge in the present case erred in law in that he
wrongly assumed that the respondent had exercised his discretion not to
issue the residence documents. As is plain from each of the notices of
decision, the respondent never turned his mind to the question of whether
the appellants were entitled to the positive exercise of his discretionary
power under regulation 10(1). This is because the respondent took the view
that each of the appellants had failed to demonstrate that he or she was
genuinely dependant upon JR. It might have been possible in the notice of
decision for the respondent to have stated that, regardless of that issue,
he would not have exercised his discretion in favour of the appellants.
However, that is not what he did and the Tribunal can see the logic in
refusing to make what at that stage the respondent (albeit wrongly, as it
turns out) regarded as a purely hypothetical decision.
- The Immigration Judge was, accordingly, wrong to
assume that an appeal lay to him in respect of a decision under regulation
10(1) that had not been made. The effect of the Immigration Judge's findings
on dependancy (which have not been challenged by the respondent) was that
the respondent needed to consider whether to exercise his discretion under
regulation 10(1) in favour of the appellants. The fact that the Immigration
Judge found that, as far as he was concerned, the discretion should not be
exercised did not entitle him to dismiss the appeals. The decisions, as
contained in the relevant notices, were incomplete. The Immigration Judge,
ought, accordingly, to have found that, in the light of his findings on
dependancy, those decisions were not in accordance with the law and remained
before the Secretary of State to reach decisions under regulation 10(1).
That discretionary decision cannot be taken for the first time by the
Tribunal, if it has not been made by the respondent.
- The Immigration Judge made a material error of
law and we accordingly substitute for his decision, dismissing the
appellants' appeals, a decision allowing those appeals to the extent that
the respondent's decisions are not in accordance with the law and the
applications of the appellants accordingly remain outstanding before him.