United Kingdom Asylum and Immigration Tribunal

PG and VG (EEA; "direct descendants" includes grandchildren) Portugal [2007] UKAIT 00019

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 30 January 2007

Date Determination notified: 13 February 2007

Before

The Honourable Mr Justice Hodge, President Senior Immigration Judge Freeman

Senior Immigration Judge King

Between

PG and VG	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the Appellants: Miss N Rogers, counsel instructed by Irving & Co, Solicitors For the Respondent: Mr M Blundell, Home Office Presenting Officer

DETERMINATION AND REASONS

1. The ordinary natural meaning of "direct descendants" in the Immigration (European Economic Area) Regulations 2006 and Directive 2004/38/EC includes grandchildren (and remoter issue in the direct line).

2. The meaning of the EEA Regulations, which faithfully reproduce the Directive on this point, being clear, there is no scope for re-interpreting them on the basis of any perceived absurdity in the consequences.

1. This is a case where the Tribunal has ordered reconsideration of a decision of Immigration Judge Geraint Jones QC, sitting at Surbiton on 17 July 2006. The judge had dismissed the European Economic Area [EEA] family members' appeals by citizens of India, respectively 12 and not quite seven at the date of the decision under appeal. The decision, on 10 August 2005, had been to refuse them family permits to join their Portuguese grandfather (Mr C), who was exercising his EEA rights to be in this country, having come here from Portugal. The Tribunal thought the judge might have made an error of law in his interpretation of "direct descendants" in reg. 7(1)(b) of the Immigration (European Economic Area) Regulations 2006 [the EEA Regulations]: the complete paragraph follows.

7. —(1) Subject to paragraph (2), for the purposes of these Regulations the following persons shall be treated as the family members of another person—

(a) his spouse or his civil partner;
(b) direct descendants of his, his spouse or his civil partner who are—

(i) under 21; or
(ii) dependants of his, his spouse or his civil partner;

(c) dependent direct relatives in his ascending line or that of his spouse or his civil partner;
(d) a person who is to be treated as the family member of that other person under paragraph (3).

2. Having dismissed these boys' mother's appeal, for reasons which Miss Rogers did not seek to have reconsidered, the judge went on to deal with their cases as follows:

"18. I next turn to consider the appeals made by …, [Mrs I's] two children. They are each under the age of 21, as I so find. The argument advanced by Ms Rogers is that they must each succeed in their respective appeals because they come within paragraph 7(1)(b)(i) of the 2006 Regulations. The issue then arises as to the true and proper construction of that part of paragraph 5 of the 2006 Regulations. It arises in this way. Ms Rogers submits that as [Mr C's] grandsons are his descendants and are under 21 years of age, they plainly come within paragraph 7 of the 2006 Regulations. However, that depends upon the true and proper construction of paragraph 7(1)(b) of the Regulations, which is in the following terms:

"Subject to paragraph (2), for the purposes of these Regulations the following persons shall be treated as the family members of another person... direct descendants of his, his spouse or civil partner who are under 21."

Ms Rogers submits that paragraph 7(1)(b) applies to any of [Mr C's] descendants. If Ms Rogers is correct in that submission it would have the bizarre result that [Mr C's] grandchildren, under the age of 21, may be entitled to a residence permit whereas his own daughter (his grandsons' mother) is not so entitled. In my judgment that gives a good guide to the construction of that part of the Regulations. Upon its wording it is clear that paragraph 7(1)(b) does not apply to all descendants of [Mr C]. It applies only to his "direct descendants". If it applied to all his descendants, the word "direct" would be otiose. If that word was deliberately inserted by the draftsmen of the Regulations, it must add meaning to the word "descendants". Ms Rogers submitted that it could not be construed so as to restrict the category of descendants to those removed by only one generation. She put that submission on the basis that in paragraph 7(2) of the 2006 Regulations special provision is made for the family members of a student and provides that a person is not to be treated as a family member unless he/she is the dependant child of student. I am unable to take any significant guidance from that part of the Regulations. That is because paragraph 7(2) of the 2006 Regulations is designed to cut down the entitlement under paragraph 7(1). It does that by providing that, if the sponsor is a student, the descendant must be a dependant child of the student. In other words, it excludes a student's children who are under 21 but who are not dependant upon the student.

19. If the construction contended for by Ms Rogers is correct, it would give rise to the bizarre result that [Mr C's] own daughter must fail in her application whereas his grandchildren, who are in no way dependent upon him (as I so find), would succeed in their application. In considering that argument I must consider the whole reasoning behind these Regulations. They are designed by the European Community to give effect to the free movement of workers by preventing member states from excluding family members of such workers so that such workers are not discouraged from exercising the right of free movement because their family members may not be able to join them. There is no sense whatsoever in having a provision that prevents a worker's daughter from joining him but which permits his grandchildren to join him. Accordingly, I give meaning to the word "direct" which appears immediately prior to the word "descendant" in paragraph 7(1)(b) of the 2006 Regulations by construing it as limiting the dependence [sic] there referred to as dependants who are not removed from the relevant EEA worker by more than one generation. Any other construction of that paragraph renders the word "direct" devoid of meaning and entirely otiose."

3. Miss Rogers's argument before us was essentially the same as she had put before the immigration judge, while Mr Blundell asked us to uphold the judge's reasons for dismissing these appeals. The only additional feature of the hearing before us was an invitation from Miss Rogers to consider the text of article 2(2) of the Directive 2004/38/EC of the European Parliament and of the Council, on which the EEA Regulations are based. What the relevant part of the English text of article 2(2) says is this:

"Family member" means:

(c) the direct descendants who are under the age of 21 or are dependants …;

(d) the dependent direct relatives in the ascending line …

4. These words are reproduced, with no significant changes, in reg. 7(1)(b) and (c) of the EEA Regulations, and we see no reason to return to the Directive. We did not need Miss Rogers's (entirely properly produced) dictionary definitions to take judicial notice that the ordinary natural meaning of "direct descendants" in English includes children and grandchildren (to the nth generation), but excludes (great) nieces and nephews; just as "direct relatives in the ascending line" includes parents and grandparents (with any more remote ancestors who may fortunately still be alive), but excludes (great) aunts and uncles. The question is whether the judge was right in taking the view that the drafting of the EEA Regulations compelled a different interpretation.
5. Regulation 7(2) does indeed cut down the entitlement, in the case of students' descendants, to their dependent children; so the draftsman of the EEA Regulations was quite astute to limit rights in this way where he so intended. The only basis for finding, by necessary implication, that the author of the Directive, and the draftsman of the Regulations who followed him, did intend to limit "direct descendants" to the next generation only, is in the judge's perception that "There is no sense whatsoever in having a provision that prevents a worker's daughter from joining him but which permits his grandchildren to join him."
6. Miss Rogers suggested that, contrary to that view, modern family arrangements might often dictate that children should be looked after by grandparents past working age, even though they would not otherwise be dependent on them: of course if these boys' mother had been dependent on her father, then she too would have been entitled to join him. We could also well imagine the European draftsman having it in mind to provide that grandchildren of up to undergraduate age should be entitled to join their grandparents for general support and if necessary supervision during their studies, without their parents needing to come too.
7. However, these are all matters of speculation, because both sides disclaimed the existence of any travaux préparatoires which might have suggested what the European Union meant to provide, and the indigenous draftsman loyally followed. As Mr Blundell realistically accepted, the very absence of such material tends to suggest that no special meaning was intended. In our view, the result contended for by Miss Rogers was not by any means so absurd as the judge thought; at worst it might be described as a little untidy.
8. As a matter of principle, though, the EEA Regulations fall to be construed like any other statutory instrument: if there were any room for doubt as to whether they provided for what was intended by the primary legislation, in this case the Directive, then the Tribunal, like any other court, would be free to take a wider view of what was or was not rational in the way they did so. In this case, the EEA Regulations followed the Directive precisely, and in our view there was no scope for the immigration judge to consider whether or not the factual consequences of the clear terms of the primary European legislation were in his view absurd. It would of course have been another matter if its terms were not clear; but they are.
9. It follows that the appeals of both these appellants against refusal of a family permit are allowed; but we should not leave the case without saying one or two things about what happened at first instance. The judge was not helped by counsel and the presenting officer agreeing that the case fell to be dealt with under the previous (2000) EEA Regulations. Quite rightly, he referred to schedule 4 of the present (2006) ones, which provides at paragraph 3(1) that all applications of this kind pending at their commencement on 30 April 2006 are to be treated as made under them; and that is what he did.
10. While Miss Rogers, as we should expect, was prepared for that decision, to the extent that she was able to make the submissions she wished under the present Regulations, the judge does not seem to have been helped on this by the presenting officer, (not Mr Blundell). It is not in the public interest that any tribunal should be left to decide a significant issue of law in the absence of argument on both sides; but we should like to express our appreciation of the trouble the immigration judge took to do so, which has in the end led to this point being properly argued before us.

Decision

The original Tribunal made a material error of law. The appellants' appeals are allowed.

John Freeman

approved for electronic distribution