United Kingdom Asylum and Immigration Tribunal

NB and JN (right of permanent residence) France [2007] UKAIT 00039

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 17 November 2006

Date Determination notified: 26 February 2007

Before

Senior Immigration Judge Storey

Dr T Okitikpi

Miss V S Street

Between

NB and JN	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the Appellants: Mr R O'Ryan, Counsel, instructed by IAS Manchester

For the Respondent: Mr M Raj, Home Office Presenting Officer

DETERMINATION AND REASONS

1. A person who has a residence permit [now registration certificate] and seeks its renewal cannot be refused its renewal or extension (provided that he remains a qualified person) save on grounds of public policy, public security or public health.

2. In stating that confirmation of the worker's engagement from his employer or a certificate of employment is "sufficient proof" that someone is a qualified person, Regulation 16(2) of the 2006 Immigration (European Economic Area) Regulations is defining the maximum that can be required;it does not mean that proof cannot be given by other appropriate means of evidence.

3. A person acquires a right to permanent residence simply by meeting the qualifying conditions set out in regulation 15 of the Regulations: this provision implements Article 16 of the Citizens' Directive. The question of whether an EEA decision breaches a person's EU right of permanent residence can arise as a ground of appeal. However, in the absence of a specific EEA decision refusing to grant a document certifying permanent residence, the AIT has no jurisdiction to decide whether such a document should have been (or should be) issued.

4. By virtue of regulation 14(2) of the 2006 Regulations (read together with Article 37 of the Citizens' Directive) the family member of a qualified person residing in the UK and exercising Treaty rights has a right to reside for so long as he remains the family member of the qualified person. There is no "accompanying or joining" requirement.

1. The first appellant is a citizen of France. The second appellant is a citizen of Congo (Brazzaville). The respondent seeks reconsideration of a determination of Immigration Judge Law notified on 20 March 2006 allowing their appeals against (1) the decision on 10 February 2005 that the first appellant was not entitled to a residence permit because she was not a "qualified person" as set out in the Immigration (European Economic Area) Regulations 2000 SI 1003/2006 (hereafter "the 2000 Regulations") ;and (2) the decision of the same date refusing to issue the second appellant with a residence document as confirmation of a right of residence in the UK as the family member of an EEA national exercising Treaty rights in the UK. The appellants had applied on 16 August 2004 for a residence permit for her and a residence document for him. They had made their application on Form EEC1, that being the form then in use for those applying for a residence permit. Possibly for this reason the first appellant made no mention of having an existing residence permit as an EEA national issued to her on 11 November 2000 and stated to be valid until 8 November 2005. When refusing their applications the respondent appears not to have noticed that she had an existing (still-current) residence permit. Where below we refer to "EEA Regulations" this is intended to cover both the 2000 and 2006 Regulations. The provisions of the 2006 Regulations are enclosed within square brackets where appropriate.
2. The first appellant has lived in the UK since 12 October 1999. She claimed that during the whole time she has been in the UK she had always been a worker or a student or both. When she came to the UK in the exercise of her Treaty rights she was single. The second appellant is a failed asylum seeker. He came to the UK on 18 April 2000 and has not left since. The couple married on 18 January 2003. They have had a son born on 23 July 2005.
3. Immigration Judge Law's determination allowing both of their appeals stated at paragraphs 13 and 14:

"I have given careful consideration to all the documents before me and to the oral evidence and submissions which have been set out and are formed (sic) in the Record of Proceedings. I find that at the date that the first appellant's application was refused she was in employment. The respondent had rejected the same because of the nature of the letter from her employers being a photocopy. In dealing with this matter I refer to the 2003 amended regulations which clearly state that a document is to be regarded as being what it purports to be provided that it is reasonably apparent. This requirement is contained within regulations 29(4) it is clear that the evidence of the appellant and the supporting documentation with regard to her employment confirmed that at the time of her request she was in gainful employment. At the date of the present decision of an in country appeal LS clearly indicates that the date of decision is the date when an Immigration Judge makes a decision with regard to the appeal. I have heard oral evidence from the first appellant and as suggested by her representative it is unfortunate that there was no further evidence of her employment, however I have looked at the requirements for qualified persons and the fact that they remain qualified persons if they are without employment for a number of reasons. It is clear that the first appellant was pregnant and gave birth to a boy the birth certificate of which had been accepted and not challenged by the respondent. As a result it is clear that she was therefore entitled to have her maternity leave and either to seek other employment at the completion of the same or to return to her original employers. I accept that she was accordingly employed as she has stated and that she has returned to the same. I similarly accept that her intentions to return to student life has [sic] been made out and that this will commence in September 2006. I find that the objections raised by the Home Office are unsustainable and that the first appellant is entitled as a qualified person to enter and to remain in the United Kingdom. As such therefore under the provisions that are appertaining to spouses the second appellant is entitled to his residence within the United Kingdom as the spouse of a qualified person.

On the totality of the evidence before me I find that the appellants have discharged the burden of proof and reasoning given by the respondent do not justify the refusal. Therefore the respondent's decision is not in accordance with the law and the applicable Immigration Rules."

4. The grounds for reconsideration in respect of the first and second appellants were essentially twofold. First it was contended that the immigration judge had failed to give adequate reasons for finding that the first appellant could return to her previous employers at the end of her maternity leave or that she had returned to work or employment at the date of hearing: "[a]s a result there was no evidence before the Immigration Judge that the appellant was exercising Treaty rights". Given the lack of evidence before him that the first appellant was working at the date of hearing, the immigration judge was said to have materially misdirected himself in law in finding she was a worker at the date of hearing.
5. Second it was submitted that the immigration judge had failed to make a clear finding on whether the first appellant was exercising her Treaty rights as a student, by virtue of having only found an intention to resume her studies in September 2006.
6. Before proceeding further it is necessary to clarify several matters. More than one confusion has arisen during the life of these appeals.
7. We begin with the fact highlighted at the outset of this reconsideration, namely that a residence permit had been issued by the Home Office to the first appellant valid from 11 November 2000 to 8 November 2005. Extraordinarily, the appellants made no mention of this either when they applied for residence permits or when they lodged their notice of appeal. Despite their representatives, the Immigration Advisory Service, having noted the fact in a letter to the respondent dated 18 February 2005, no mention of it was made by either side at the hearing before the immigration judge. We cannot be sure that he did not have the IAS letter in front of him, but in any event he did not take this fact into account at all. We are grateful to Mr O'Ryan for alerting us to this fact and to drawing our attention to the photocopy document contained in the original appellant's bundle at A. We are also grateful to Mr Raj for confirming in response that he accepted on behalf of the respondent that a residence document had been properly issued to the first appellant and amounted to a grant of a residence permit for a continuous period of five years covering the period as shown in the photocopy. Mr Raj also confirmed the respondent's acceptance that the first appellant was a worker at the time of her application in August 2004 as well as at the date of decision on 10 February 2005. The significance of the fact that the first appellant held a valid residence permit and was a worker at the time of application and decision is obviously the first issue we shall have to address when furnishing our analysis of the relevant legal issues below.
8. Arising from the fact that the first appellant had a residence permit still valid at the date of decision, Mr O'Ryan submitted that this document was evidence necessitating that we consider as a matter of law whether, by virtue of having resided in the UK on the basis of a residence permit for a continuous period of five years, the appellant had acquired a permanent right of residence under regulations 15(1)(a) of the Immigration (European Economic Area) Regulations 2006 (hereafter 2006 Regulations). For reasons which will become apparent, we agree with Mr O'Ryan that the first appellant is entitled to have this question considered as a ground of appeal additional to those which she originally lodged against the decision.
9. Another point of confusion in these cases arises from Immigration Judge Law's reference to - and attempted interpretation of - the "2003 amended Regulations". As part of his reasoning in paragraph 13 for finding that the first appellant was employed at the date of decision, he had relied on regulation 29(4) of the "2003 amended Regulations". By these he can only have meant the 2000 Regulations as amended by the Immigration (European Economic Area) (Amendment) Regulations 2003 (SI No.549). On the strength of this provision of the 2000 Regulations he considered it correct to accept as genuine a letter from her employers in the form of a photocopy. He understood this provision to "clearly state that a document is to be regarded as being what its purports to be provided that this is reasonably apparent".
10. There are two problems here. First of all, he misread the 2000 Regulations. Regulation 29(4) of the 2000 Regulations state:

"Appeal rights

29 – (1) Subject to paragraphs (2) to (4), a person may appeal under these Regulations against an EEA decision.

(2) If a person claims to be an EEA national, he may not appeal under these Regulations unless he produces –

(a) a valid national identity card;or

(b) a valid passport, issued by an EEA State.

(3) If a person claims to be the family member of another person, he may not appeal under these Regulations unless he produces –

(a) an EEA family permit, or

(b) other proof that he is related as claimed to that other person.

(4) For the purposes of paragraphs (2) and (3), a document –

(a) is to be regarded as being what it purports to be provided that it is reasonably apparent;and

(b) is to be regarded as relating to the person producing it unless it is reasonably apparent that it relates to another person.

…".

11. Manifestly this regulation does not contain a rule of general application about acceptance of documents and certainly does not cover documents evidencing employment. Its scope is confined to setting out who may appeal under these Regulations against an EEA decision and deals only with documents required to prove either a person's nationality (under regs 29(2)) or his family member's connection with him (under regulation 29(3)). It may well be that the provisions of the 2000 Regulations the immigration judge meant to invoke were regulation 15(1) and 15(3), which are part of a paragraph dealing with the issue of residence permits and residence documents. They state:

"(1) Subject to regulations 16 and 22(1), the Secretary of State must issue a residence permit to a qualified person on application and production of –

(a) a valid identity card or passport issued by an EEA State;and

(b) the proof that he is a qualified person."

…

(3) In the case of a worker, confirmation of the worker's engagement from his employer or a certificate of employment is sufficient proof for the purposes of paragraph 1(b)."

12. Secondly, the immigration judge overlooked the fact that in respect of both outstanding applications and appeals the governing Regulations (except in one respect) were in fact the 2006 Regulations, these being the applicable law retrospectively as well as prospectively. These Regulations, of course, implement in UK law the Citizens' Directive (EC Directive 2004/38/EC). The provision he should have considered, therefore, was regulation 16(2) of the 2006 Regulations. This states that it is to be considered "sufficient proof" for the purposes of proving one is a worker that a person produce at the date of application "confirmation of the worker's engagement from his employer or a certificate of employment …" Strictly speaking, regulation regulation 16(2) of the 2006 Regulations (like regulation 15(2) of the 2000 Regulations) is only concerned with the issuing of a registration certificate (formerly residence permit) to a person upon application for the same. Regulation 16(2) is not concerned with renewal of such a document. But in any event neither regulation 16 of the 2006 Regulations nor any earlier set of EEA Regulations (nor any provisions of the Citizens' Directive) specifies anything about the national decision-maker needing to see the originals of documents evidencing employment.
13. It is right that production of originals should be regarded as the principal way to prove employment, since if proof by such means is provided, that is the end of the matter;but it is not said to be necessarily the only way. Indeed, it is a general principle of Community law relating to the exercise of free movement rights that, except where it is specified that only certain means of evidence are admissible, evidence may be adduced "by any appropriate means" (Roux Case C-36389, [1991] EUECJ C-363/89, [1991] ECR-1-273; Salah Oulane C-215/03, [2005] EUECJ C-215/03, para 53). So far as UK appeals are concerned, rule 51(5) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 leaves to the discretion of the Tribunal, where a party seeks to rely upon a copy of a document as evidence, whether to require the original document to be produced;such discretion in an EEA case would have to applied in accordance with general principles of Community law.
14. We have already presaged another point of confusion which has arisen. Indeed it is one which arises in many EEA appeals currently. Since the time when the application for reconsideration came before Senior Immigration Judge Nicholls (on 6 April 2006) the relevant legal framework has changed. By virtue of paragraph 3(1) of Schedule 4 to the 2006 Regulations:

"(1) An application for an EEA family permit, a residence permit or a residence document made but not determined under the 2000 Regulations before 30 April 2006 shall be treated as an application under these Regulations for an EEA family permit, a registration certificate or a residence, respectively."

15. By virtue of paragraph 5(1) of Schedule 4 to the 2006 Regulations, it became necessary as from 30 April 2006 to decide all pending appeals under these new Regulations, even though at the date of decision – and the date of hearing - the 2000 Regulations (as amended) still applied. Paragraph 5(1) of Schedule 4 states:

"Where an appeal against an EEA decision under the 2000 Regulations is pending immediately before 30 April 2006 that appeal shall be treated as a pending appeal against the corresponding EEA decision under these regulations".

16. Only in the context of considering the prior issue of whether - in view of the fact that the first appellant had a residence permit which was still valid at the time of application - the decision made by the respondent in respect of both appellants on 10 February 2005 was lawful, will it be necessary to have regard to the 2000 Regulations.

The applicable legal framework

17. So far as the immigration judge's treatment of the first appellant's appeal is concerned, we have already noted that it is necessary to have regard first of all to whether, given that she had a valid residence permit [registration certificate] at the time, the decision of the respondent on 10 February 2005 was a lawful one. To decide that it is first necessary to have regard to the law in place at that time, in particular regulations 18 (1), 19(1) and 22(2) of the 2000 Regulations. Regulation 18(1) states:

"18. Duration of residence permit

(1) Subject to the following paragraphs and to regulations 20 and 22(2), a residence permit must be valid for at least 5 years from the date of issue."

18. Regulation 19(1) states:

"Renewal of residence permit

(1) Subject to paragraph (2) and (3) and to regulations 20 and 22(2), a residence permit must be renewed on application.

(2) On the occasion of the first renewal of a workers' residence permit the validity may be limited to one year if the worker has been involuntarily unemployed in the United Kingdom for more than one year.

(3) In the case of a student whose first residence permit is limited to one year by virtue of regulation 18(5), renewal may be for periods limited to one year".

19. Regulation 22 of the 2000 Regulations, headed "Refusal to issue or renew residence permit or residence document, and revocation of residence permit, residence document or EEA family permit" states at (2):

" (2) The Secretary of State may revoke, or refuse to renew, a residence permit or residence document if –

(a) the revocation or refusal is justified on grounds of public policy, public security or public health;or

(b) the person to whom the residence permit or residence document was issued –

(i) is not, or has ceased to be, a qualified person;

(ii) is not, or has ceased to be, the family member of a qualified person."

20. In the 2006 Regulations the provision covering similar ground is regulation 20(1) and (2), which state:

(1) The Secretary of State may refuse to issue, revoke or refuse to renew a registration certificate, a residence card, a document certifying permanent residence or a permanent residence card if the refusal or revocation is justified on grounds of public policy, public security or public health.

(2) The Secretary of State may revoke a registration certificate or a residence card or refuse to renew a residence card if the holder of the certificate or card has ceased to have a right to reside under these Regulations".

21. Regarding the right to reside, regulation 14(1) of the 2000 Regulations states: "A qualified person is entitled to reside in the United Kingdom, without the requirement for leave to remain under the 1971 Act, for so long as he remains a qualified person". Regulation 14(1) of the 2006 Regulations is in similar terms.
22. Also relevant to the first appellant's case (for reasons explained earlier) are regulations 15, 16 and 18:

"Permanent right of residence

15. (1) the following persons shall acquire the right to reside in the United Kingdom permanently –

(a) an EEA national who has resided in the United Kingdom in accordance with these regulations for a continuous period of five years;

(b) …;

(c) a worker or self-employed person who has ceased economic activity;

(d)- (f) …

(2) Once acquired, the right of permanent residence under these regulations shall be lost only through absence from the United Kingdom for a period exceeding two consecutive years.

(3) but this regulations is subject to regulation 19(3)(b)

Issue of registration certificate

16. (1) The Secretary of State must issue a registration certificate to a qualified person immediately on application and production of –

(a) a valid identity card or passport issued by an EEA state;

(b) proof that he is a qualified person.

(2) In the case of a worker, confirmation of the worker's engagement from his employer or a certificate of employment is sufficient proof for the purposes of paragraph (1)(b).

…

(7) A registration certificate issued under this regulation shall state the name and address of the person registering and the date of registration and shall be issued free of charge.

(8) But this regulation is subject to regulation 20(1)."

….

Issue of document certifying permanent residence and a permanent residence card

18 (1) The Secretary of State must issue the EEA national with a permanent right of residence under regulation 15 with a document certifying permanent residence as soon as possible after an application for such a document and proof that the EEA national has such a right is submitted to the Secretary of State.

(2) The Secretary of State must issue a person who is not an EEA national who has a permanent right of residence under regulation 15 with a permanent residence card no later than six months after the date on which an application for a permanent residence card and proof that the person has such a right is submitted to the Secretary of State.

(3) Subject to paragraph (5) and regulation 23(3), a permanent residence card shall be valid for ten years from the date of issue and must be renewed on application.

(4) A document certifying permanent residence and a permanent residence card shall be issued free of charge.

(5) A document certifying permanent residence and a permanent residence card shall cease to be valid if the holder ceases to have a right of permanent residence under regulation 15."

23. So far as the second appellant is concerned, here too it is necessary first of all to consider the law as it stood at the date of decision and in particular regulation 15(2) and regulation 20 of the 2000 Regulations. Regulation 15(2) states:

"Subject to regulation 22(1)[refusal on grounds of public policy, public security or public health], the Secretary of State must issue a residence permit to a family member of a qualified person (or, where the family member is not an EEA national, a residence document) on application and production of –

(a) a valid identity card issued by an EEA State or a valid passport;

(b) in the case of a family member who required an EEA family permit, for admission to the United Kingdom, such a permit;and

(c) in the case of a person not falling within sub-paragraph (b), proof that he is a family member of a qualified person."

24. Regulation 20(1) of the same 2000 Regulations states that:

"The family member of an EEA national is entitled to a residence permit or residence document of the same duration as the residence permit granted to the qualified person of whose family he is a member;and the family member's residence permit or residence document is subject to the same terms as to renewal".

25. Insofar as it is necessary to consider the second appellant's position under the 2006 Regulations, the key provision is regulation 14(2) of the 2006 Regulations, which states:

"A family member of a qualified person residing in the United Kingdom under paragraph (1) or of an EEA national with a permanent right of residence under regulation 15 is entitled to reside in the United Kingdom for so long as he remains the family member of the qualified person or EEA national."

26. The requirement to retrospectively treat the first appellant's pre-existing residence permit as a registration certificate is contained at paragraph 2(2) of Schedule 4 to the 2006 Regulations:

"(2) Subject to paragraph (4), a residence permit issued under the 2000 Regulations shall, after 29 April 2006, he treated as if it were a registration certificate issued under these Regulations".

Our analysis and decision on whether there is a material error of law

27. As already noted, it is first necessary to evaluate the legal consequences of the fact that at the date of decision in February 2005 the first appellant had a residence permit [registration certificate] which was still valid. Even though the Secretary of State (and immigration judge) overlooked this, we cannot. As a residence permit [registration certificate] had already been issued and was still valid, the only decision open to him to make was whether it should or should not be renewed. Her residence permit [registration certificate] being still valid, the first appellant continued to be a "qualified person" within the meaning of regulation 5 of the 2000 Regulations unless the Secretary of State made a decision under regulation 22 to revoke or refuse to renew that residence permit [registration certificate]. Regulation 22 gave him the power (not the obligation) to do that in two circumstances only: where revocation or refusal is justified on grounds of public policy, public security or public health (22(2)(a));or where the first appellant "is not, or has ceased to be, a qualified person…" (22(2)(b)). Under the 2006 Regulations, regulation 20(1) and (2) are to the same effect.
28. So far as regulation 22(2)(a) is concerned, there is nothing before us to suggest that at that time there were public policy, public security or public health grounds for not renewing her residence permit[registration certificate].
29. What about regulation 22(2)(b)? It is not in dispute that from the time she arrived in the UK up until her application on 16 August 2004, the first appellant was either in work or enrolled as a student. We have very few details of her student history in the UK but in any case there is no dispute about the fact that during this period she was exercising her Treaty rights. The same is true of the period between her application and the date of decision, the 10 February 2005. Prior to the immigration judge issuing his determination the respondent did dispute that the covering letter from her employers sent with the application was satisfactory, as it was not endorsed with the company's stamp and she had not provided 3 recent wage slips. However, Mr Raj stated that it was not now disputed that she had worked as claimed from 19 July 2004 until June or July 2005. Given the state of the documentary evidence which was before the immigration judge (comprising, in addition to the employer's certificate included in the first appellant's completed Form EEC1, an Inland Revenue PAYE Coding Notice for 2004-5 and bank statements showing payments from her employers into her account covering a good deal of the relevant period), that in our view was a sensible concession.
30. In any event this concession is decisive to the proper outcome of this case. For it establishes that at the date of decision the appellant was still a worker. She had not thus ceased to be a qualified person under regulation 22(2)(b).
31. Accordingly neither of the only two circumstances set out in regulation 22(2) of the 2000 Regulations (rendering renewal of a residence permit capable of refusal) applied. Applying the corresponding provisions of the 2006 Regulations (regulation 20(1) and (2)) gives the same result.
32. Arguably, since the first appellant sought issue of a residence permit rather than, as she should have, renewal of her residence permit, she might be thought to have never made an application for renewal whilst her residence permit was still valid. However, we consider that in order to give effet utile to her EEA rights, her application must be understood to have been in essence to renew her residence permit [now registration certificate: see regulation 3(1) of Schedule 4 to the 2006 Regulations].
33. Hence the decision of 10 February 2005, being made under provisions of the EEA Regulations which had no application to the first appellant's case, was not in accordance with the law.
34. The failure of the immigration judge to recognise that the decision of the Secretary of State was unlawful amounted to an error of law. It was also a material error, since it involved him in allowing the appeal under inapplicable provisions of the 2006 Regulations.
35. It seems to us that similar considerations must apply to the second appellant's appeal. Here also the immigration judge allowed the appeal on a flawed basis. He failed to recognise that the decision of the Secretary of State was unlawful. Being made under inapplicable provisions of the EEA Regulations, the immigration judge's decision to allow the appeal was not in accordance with the law.

Our decision on these appeals

36. We consider we are in a position to decide these appeals for ourselves. The relevant facts are no longer in dispute and the legal consequences are clear-cut.

The first appellant

37. In relation to the first appellant, she was plainly a person who had a right of residence under regulation 14 of the 2000 Regulations [now regulation 14 of the 2006 Regulations], by virtue of remaining a qualified person. Her application for a residence permit must be understood to have been for a renewal of a residence permit [now registration certificate] and the only decision that could have been made on that application was to renew her residence permit [now registration certificate]. Regulation 19 of the 2000 Regulations states:

"Renewal of residence permit

(1) Subject to paragraph (2) and (3) and to regulations 20 and 22(2), a residence permit must be renewed on application.

(2) On the occasion of the first renewal of a workers' residence permit the validity may be limited to one year if the worker has been involuntarily unemployed in the United Kingdom for more than one year.

(3) In the case of a student whose first residence permit is limited to one year by virtue of regulation 18(5), renewal may be for periods limited to one year".

38. [The 2006 Regulations contain similar rights in respect of renewal of registration certificates.]
39. As already explained regulation 22(2) of the 2000 Regulations and regulation 20(1) and (2) of the 2006 Regulations did not apply to the first appellant since she was not affected by the public policy proviso contained in these regulations and she had not ceased to be a worker under them.
40. We would also observe that renewal of the first appellant's residence permit [now registration certificate] could not contain any limitation on its validity since on that occasion (10 February 2005) she had not been involuntarily unemployed in the United Kingdom for more than one year and had not had her first residence permit limited to one year.
41. The decision we substitute for that of the immigration judge is to allow the first appellant's appeal on the basis that the law requires that at the date of decision she should have been granted a renewal of her residence permit [now registration certificate].
42. Since we have to give effect to the 2006 Regulations – and as we have sought to indicate where appropriate by use of square brackets - the document which will now have to be issued to the first appellant will have to be in the form of a registration certificate: see regulation 3(1) of Schedule 4.
43. There is a further question of whether we should also include in our decision a declaration that the first appellant has a permanent right of residence, but that is best left for treatment later on.

The second appellant

44. In relation to the second appellant, at the date of decision he plainly had a right to reside by virtue of regulation 14(2) of the 2000 Regulations, which states:

"A family member of a qualified person is entitled to reside in the United Kingdom without the requirement for [leave to remain under the 1971 Act]. For so long as he remains the family member of a qualified person. "

45. Regulation 14(3) of the 2006 Regulations states similarly:

"A family member who has retained the right of residence is entitled to reside in the United Kingdom for so long as he remains a family member who has retained the right of residence".

46. It is also clear from the 2000 Regulations that prior to 10 February 2005 the first and second appellants' right to reside and pursue economic activity was unaffected by the fact that their 16 August 2004 application for a (renewal of a) residence document [now registration certificate and residence card respectively] had not been determined by the Secretary of State: see regulation 14(3).
47. As regards the second appellant's entitlement to confirmatory documentation of such a family member's right, the position is less clear.
48. As a family member of a qualified person (and there is no dispute in this case that the second appellant was a family member within the meaning of the 2000 - and 2006 – Regulations), he was entitled to have his application considered in line with the first appellant's. Although he had only become a family member (just over two years) after the first appellant had been issued with a residence permit, his position stood to be considered under regulation 20, read in conjunction with regulation 15 of the 2000 Regulations. Regulation 20, we remind ourselves, states that:

"The family member of an EEA national is entitled to a residence permit or residence document of the same duration as the residence permit granted to the qualified person of whose family he is a member;and the family member's residence permit or residence document is subject to the same terms as to renewal".

49. Regulation 17 of the 2006 Regulations, although is slightly different terms, contains similar guarantees.
50. Whilst unlike the first appellant the second appellant had no pre-existing residence permit, the wording of regulation 20 [see now regulation 17 of the 2006 Regulations] makes clear that the family member's entitlement is purely derivative and that any residence document [now residence card] to which he is entitled has to be of the same duration and on the same terms as the EEA national.
51. Regulation 15(2) of the 2000 Regulations state:

"(2) Subject to regulation 22(1), the Secretary of State must issue a residence permit to a family member of a qualified person (or, where the family member is not an EEA national, a residence document) on application and production of –

(a) a valid identity card issued by an EEA State or a valid passport;

(b) in the case of a family member who required an EEA family permit for admission to the United Kingdom, such a permit;and

(c) in the case of a person not falling within sub-paragraph (b), proof that he is a family member of a qualified person;

…"

52. Regulation 17(1)-(2) of the 2006 Regulations similarly requires production of a "valid passport".
53. Whilst it is not in dispute that at the date of decision the second appellant remained the family member of the first appellant, we do not know if he produced a valid passport as required by Regulation 15(2)(a) [now Regulation 17 of the 2006 Regulations]: obviously he did not have a valid identity card issued by an EEA State. So in the second appellant's case, whilst we must find that he has a right to reside, we cannot decide that he is entitled to a residence document [now residence card: see regulation 17, with reference to regulation 3(1) of Schedule 3 of the 2006 Regulations]. Issue by the Secretary of State of such a document will depend on whether he can produce a valid national passport.
54. In the light of our decision on both appellants' appeals both the principal grounds for reconsideration and the appellant's principal grounds of appeal fall away. In particular it is not necessary for us to decide whether the first appellant remained a worker or a student at the date of hearing. However, it is necessary to address one additional argument raised by Mr O'Ryan and to clarify one matter concerning the second appellant's right to reside.

The issue of permanent residence

55. Mr O'Ryan argued that we were required to decide that the first appellant had a permanent right of residence since the 2006 Regulations require us to give retrospective effect to such a right. Although he did not develop it in detail, his argument deserves to be taken seriously. The first appellant's residence permit was valid for five years and was never revoked prior to its expiry. There is nothing to suggest that her residence in the UK during that period was not continuous. At the time the decision was made (and indeed at the time when the immigration judge heard the appellant's appeal) there was no EU legislation in force affording EU nationals a right to permanent residence on the basis of five years of continuous residence (although there were provisions for settlement under the Immigration Rules HC 395 at paragraph 255). Such a provision was an innovation introduced by the Citizens' Directive (2004/83) and was implemented by the UK in the 2006 Regulations at Regulation 15 and 18 (see above). However, as already noted the 2006 Regulations contain deeming provisions which require us to give retrospective effect to the rights it enshrines. Paragraph 6(1) of Schedule 4 provides:

"(1) Any period during which a person carried out an activity or was resident in the United Kingdom in accordance with the 2000 regulations shall be treated as a period during which the person carried out that activity or was resident in the United Kingdom in accordance with these regulations for the purposes of calculating periods of activity and residence under the regulations."

56. Mirroring Article 16 of the Citizens' Directive, regulation 15 sets out that subject to meeting requirements which are specified (none being expressed as requiring application) "[t]he following persons shall acquire the right to reside in the United Kingdom permanently -…". Regulation 18 places an obligation on the respondent to issue an EEA national with a permanent right of residence under regulation 15 with a document certifying permanent residence as soon as possible "after an application for such a document and proof that the EEA national has such a right is submitted to the Secretary of State." This too mirrors the provision in the Citizens' Directive at Article 19: ("Upon application Member States shall issue Union Citizens' entitled to permanent residence, after having verified duration of residence, with a document certifying permanent residence").
57. Thus it can be seen that neither the 2006 Regulations nor the (parent) Citizens' Directive makes acquisition of the right of permanent residence (as distinct from certification of the right by way of a document) contingent upon an application. In this regard there is a clear difference between regulations 15 and 18.
58. Can these provisions be applied by us in the appellant's favour? To be fair to Mr O'Ryan, he only sought that we apply the former, but it is important that we clarify the legal position regarding both.
59. We have no difficulty in treating the first appellant's original grounds of appeal against the decision to refuse her a residence permit as including, retrospectively, a ground that she be recognised as having a right of permanent residence: that, it seems to us, is necessitated by the retrospective provisions of the 2006 Regulations. We are also prepared to accept that the appellant appears to meet the requirements of regulation 15: she falls within regulation 15(1)(a): " an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years".
60. However, the question still remains whether we have jurisdiction to decide that the appellant has a permanent right of residence. At this point is it important to recall the appeal structure in respect of EEA decisions as provided by the 2006 Regulations is predicated on there being an EEA decision. By regulation 2 "EEA decision":

"means a decision under these Regulations that concerns a person's –

(a) entitlement to be admitted to the United Kingdom;

(b) entitlement to be issued with or have renewed, or not to have revoked, a registration certificate, residence card, document certifying permanent residence or permanent residence card;or

(c) removal from the United Kingdom".

61. These provision might appear to mean that the Tribunal only has jurisdiction in respect of an EEA decision regarding a document certifying permanent residence. However, by virtue of Schedule 1 to the 2006 Regulations certain provisions of the Nationality, Immigration and Asylum Act 2002 are to have effect in relation to an appeal under these Regulations "as if it were an appeal against an immigration decision under section 82(1) of that Act". They include section 84(1) [except paragraphs (a) and (f), which concern application of the immigration rules], and sections 103A. Section 84(1) states that "An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds-"
62. Section 84(1)(d) states:

"that the appellant is an EEA national or a member of the family of an EEA national and the decision breaches the appellant's rights under the Community Treaties in respect of entry to or residence in the United Kingdom;"

63. In the light of these provisions two things are clear.
64. First of all we are obliged by s.84(1)(d) of the 2002 Act to consider whether the decision appealed against breaches the first appellant's rights under the Community Treaties in respect of entry to or residence in the United Kingdom. In our view the decision plainly did (and does) breach her right under the Citizens' Directive to permanent residence. Thus our decision has to include a declaration (by which we mean a determination of the matter under s.86(2) of the 2002 Act) that the first appellant has established a right to permanent residence.
65. Secondly, however, although the first appellant has a right of permanent residence under regulation 15, she has never applied for a regulation 18 document certifying this fact. Nor can we see that there is any provision in the 2006 Regulations or anywhere else entitling us to treat such an application as having been made merely by the act of having applied (or, as here, being taken to have applied) for a renewal of her residence permit[registration certificate] . Indeed there are reasons of EU public policy why it would be unwise to equate the two: not every EU citizen exercising Treaty rights and wanting recognition of a right to reside would wish to avail himself of a document certifying permanent residence rights in another Member State, even if he has acquired permanent residence as a matter of EU law. To do so may have adverse implications for personal taxation or a person's business affairs (to take just two possible examples). The right was introduced to encourage integration, not, as we understand it, to compel it. Hence the issue of whether this appellant is entitled to a Regulation 18 document certifying permanent right of residence cannot arise before us, as it is something which she is required to apply for but has not yet done so.
66. This may seem an oddity, given that, as Article 25 of the Citizens' Directive highlights, possession of confirmatory documents may under no circumstances be made a precondition for the exercise of a right. However, once an application is made, any adverse decision will attract a right of appeal. Thus we see no lack of judicial safeguards. Further, as we have seen, we have been able to declare that the first appellant is entitled to permanent residence.

The second appellant's right to reside

67. We have already set out our reasons for concluding that the second appellant's appeal (like the first appellant's) stands to be allowed because the respondent's decision was unlawful and the legal consequences are clear at least in respect of his right to reside. He has that entitlement by virtue of Regulation 14(2) of the 2006 Regulations. This states:

"A family member of a qualified person residing in the United Kingdom under paragraph (1) …is entitled to reside in the United Kingdom for so long as he remains the family member of the qualified person or EEA national."

68. We did not hear argument on the issue, but it is right that we draw attention to there being a possible question of whether regulation 14(2) properly implements the Citizens' Directive. The Directive's corresponding provision, Art 7(1)(d), is in more restrictive terms. It states:

"All Union Citizens' shall have the right of residence on the territory of another Member State for a period of longer than three months if they:

…

(d) are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c) [ subparagraph (1)(a) applies to workers or self-employed persons in the host Member State]." (emphasis added)

69. Regulation 14(2), by contrast, contains no "accompanying or joining" requirement. This might seem at first sight to suggest that regulation 14(2) is to be considered as an example of defective implementation and so give rise to a question of whether Article 7 of the Directive has direct effect. However, Article 7 has to be read together with recital 29 and Article 37. The latter states:

"The provisions of this Directive shall not affect any laws, regulations or administrative provisions laid down by a Member State which would be more favourable to the persons covered by this Directive."

70. The effect of Article 37 is to permit a Member State to pass implementing legislation which is more generous than the Directive. That is what has happened in the United Kingdom in relation to family members covered by regulation 14(2).

Conclusions

71. The immigration judge materially erred in law in failing to understand that the decision made by the respondent in respect of both appellants was unlawful and in going on to allow their appeals on the basis of inapplicable provisions of the EEA Regulations.
72. The decision we substitute in relation to the first appellant is to allow her appeal on the basis that at the date of decision she was a qualified person and so entitled to a residence permit [now registration certificate]. She is also entitled to a declaration (meaning a determination of the matter under s.86(2) of the 2002 Act) that she has a right of permanent residence under regulation 15 of the 2006 Regulations.
73. The decision we substitute in relation to the second appellant is to allow his appeal on the basis that at the date of decision he was a family member of a qualified person (the first appellant) and as such entitled to a right to reside. Whether, however, he is also entitled to be issued with a residence document [now residence card] will depend on whether he had at the relevant time a valid passport.

Signed:

Dr H H Storey, Senior Immigration Judge

Approved for electronic distribution.