FD (EEA discretion: basis of appeal) Algeria [2007] UKAIT 00049

ASYLUM AND IMMIGRATION TRIBUNAL

THE IMMIGRATION ACTS

Heard at: Field House                                                 	Date of Hearing: 3 April 2007

Before:

Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
Senior Immigration Judge Grubb

Between

FD
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation
For the Appellant:		Mr C Lam, instructed by David Tang & Co. 
For the Respondent:		Mr P Deller, Home Office Presenting Officer 

The Tribunal has jurisdiction to review the exercise of the Secretary of State’s discretion under the EEA Regulations applying to “extended family members”.  In such cases the Tribunal is not, therefore, confined to considering whether the decision was a lawful one.

DETERMINATION AND REASONS

1.	The appellant is a citizen of Algeria.  He appealed to an Immigration Judge against the decision of the respondent on 9 November 2006 refusing to issue him with a residence card as confirmation of a right of residence within EU law.  The Immigration Judge dismissed his appeal.  He sought and obtained an order for reconsideration.  Thus the matter comes before us.

2.	We do not know when the appellant came to the United Kingdom.  On 1 August 2001 he was issued with a residence document valid until 29 July 2008 as the spouse of a Portuguese national.  On 18 July 2005 that residence document was revoked following the breakdown of the marriage.  He appealed against that revocation, but his appeal was dismissed. The appellant then claimed that he had entered into a relationship with a French national, with whom he had been living since July 2004.  He applied to remain on the basis of that relationship.  We are concerned with the refusal of that application.  The refusal proceeded from the basis that the appellant’s only claim to remain was as an “extended family member” within Regulation 8 of the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003), that he was therefore entitled to a residence card only in the Secretary of State’s discretion, if it appeared to him right to issue one, and that, as the appellant had no leave to remain in the United Kingdom, the Secretary of State declined to exercise his discretion in the appellant’s favour.  The grounds of appeal to the Immigration Judge were that the appellant had a right to remain in the United Kingdom under EU law, specifically Article 3(2) of the Directive 2004/38/EC, and that, in any event, the mere fact that he had no leave to remain in the United Kingdom at the time he made his application was an inadequate basis for refusing him.  The Immigration Judge held that Article 3(2) gave no substantive rights to the appellant.  He also held that the decision not to issue a residence card on the ground given was “perfectly in accordance with the law”.  Thus he dismissed the appeal.  The grounds for reconsideration, on the basis on which the order was made by the Senior Immigration Judge, are not entirely easy to understand, but it is clear that they raise two discrete issues.  The first relates to the interpretation of Article 3(2): if the appellant has a right of residence under European law under that Article, the United Kingdom legislation appearing to make it a matter of the Secretary of State’s discretion could have no force.  The second issue arises only if the appellant has no right of residence under Article 3(2).  It is the question whether the Immigration Judge acted correctly in determining the appeal simply on the basis that the Secretary of State’s decision was in accordance with the law, or whether the Immigration Judge should have considered whether the Secretary of State’s discretion should have been exercised differently.

3.	So far as the first issue is concerned, we, like the Immigration Judge, are not persuaded that Article 3(2) gives the appellant any substantive right of residency (or indeed entry into) the United Kingdom.  Arguments based on Article 3(2) are raised with very great frequency in the Tribunal at present.  We have given our views on the issue in some detail elsewhere  and we do not need to repeat them here.  We accordingly reject the appellant’s claim insofar as it is based on the right of residence.

4.	The consequence of that is that the appellant is entitled to residence in the United Kingdom only in accordance with national legislation.  In the United Kingdom the national legislation is the Immigration (European Economic Area) Regulations 2006, to which we have already referred.  The Immigration Judge having found that the appellant’s relationship with his current partner, the French national is durable, it is beyond argument that the appellant is an “extended family member” within the meaning of Regulation 8.  Regulation 17(4) accordingly applies to him.  That Regulation, so far as relevant, provides that the Secretary of State “may issue a residence card” to a person such as the appellant on the basis of a relationship such as he has with an EEA national if “in all the circumstances it appears to the Secretary of State appropriate to issue the residence card”.  That provision certainly incorporates a discretion.  It is a discretion which may, or may not, be exercised in favour of a particular claimant.

5.	In the present case, evidently, the discretion was not exercised in the appellant’s favour.  The Immigration Judge found that the Secretary of State acted lawfully.  The claimant argues that the Tribunal can, and in his case should, review the exercise of the discretion and allow the appeal on the basis that the discretion should have been exercised in his favour.

6.	Does the Tribunal have power to review the lawful exercise of a discretion in these circumstances?  The answer is not entirely obvious.

7.	Section 84(1) of the Nationality, Immigration and Asylum Act 2002 sets out the grounds upon which a person may appeal to the Tribunal against an immigration decision of a kind mentioned in s82(2).  Amongst those grounds are:

	“…
(d)	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;
(e)	that the decision is otherwise not in accordance with the law;
(f)	that the person taking the decision should have exercised differently a discretion conferred by immigration rules;
… .”

8.	Section 86 is headed “Determination of Appeal”, and the relevant subsections are as follows: 

	“…
(3)	the Tribunal must allow the appeal in so far as it thinks that – 
(a)	a decision against which the appeal is brought or is treated as being brought was not in accordance with the law (including immigration rules), or
(b)	a discretion exercised in making a decision against which the appeal is brought or is treated as being brought should have been exercised differently. 
	…
	(5)	In so far as subsection (3) does not apply, the Tribunal shall dismiss the appeal.
	(6)	Refusal to depart from or to authorise departure from immigration rules is not the exercise of a discretion for the purposes of subsection (3)(b).”

9.	An EEA decision, such as that which was made by the Secretary of State in the appellant’s case, is not within the types of immigration decision listed in s82.  But s109 allows regulations to be made (by statutory instrument: s112) to make provision about, and about appeals against, decisions about a person’s entitlement to remain in the United Kingdom if he has or claims to have a right under any of the Community Treaties.  The Regulations are the Immigration (European Economic Area) Regulations 2006.  Regulation 26 gives a right of appeal under the Regulations.  Regulation 26(7) is as follows:

“The provisions of or made under the 2002 Act referred to in Schedule 1 shall have effect for the purposes of an appeal under these Regulations to the Asylum and Immigration Tribunal in accordance with that Schedule.

10.	The Schedule is as follows:

“The following provisions of, or made under, the 2002 Act have effect in relation to an appeal under these Regulations to the Asylum and Immigration Tribunal as if it were an appeal against an immigration decision under section 82(1) of that Act:

section 84(1), except paragraphs (a) and (f);
sections 85 to 87;
sections 103A to 103E;
section 105 and any regulations made under that section; and
section 106 and any rules made under that section.”

11.	There is, therefore, in principle no difficulty about the appellant’s rights of appeal.  The problem is, however, that the ground of appeal in s84(1)(f) specifically relating to an exercise of a discretion is not available because it is excluded by Schedule 1 to the Regulations.  

12.	If the actual decision against which the appellant appeals was one in which the Secretary of State failed to exercise an applicable discretion, the appellant’s only remedy is to have his appeal allowed on Abdi (D S) v SSHD [1996] Imm AR 148 principles, in that the decision was not in accordance with the law: SY and others [2006] UKAIT 00024.  Where the discretion has been exercised, however, it seems to us that despite the provisions to which we have referred in the previous paragraph, it is open to a person in the appellant’s situation to claim that a discretion under the Regulations should have been exercised differently, and that the Tribunal has jurisdiction to substitute its own view of how the discretion should have been exercised.  The reasoning is in three stages, as follows.

13.	First, the appellant has the ground of appeal under s84(1)(d).  As a person within Article 3(2) of the Directive, his right “in respect of entry to or residence in the United Kingdom” is the right which exists in accordance with national legislation.  Article 3(2) itself, and Regulation 17(5) implementing it, provide that there is to be an extensive examination of an applicant, and a justification of any denial of entry or residence.

14.	Secondly, the national legislation is the Immigration (European Economic Area) Regulations 2006, which, as we have seen, give the Secretary of State a discretion.  Thus, the appellant has, under the Community Treaties, a right to be subject to the proper exercise of a discretion (for that is what national legislation requires), as well as the right to a justification of any refusal.  The ground of appeal under s84(1)(d) encompasses these factors.

15.	Thirdly, having raised those matters, the appellant is entitled to have his appeal allowed under s86(3)(b) if the Tribunal considers that a discretion exercised in making the decision should have been exercised differently.  There is no doubt that a decision under Regulation 17(4) involves the exercise of a discretion.  Although the discretionary decision is not one under the Immigration Rules, s86(6) has no impact, because it is not a matter of departing from the Immigration Rules either.  The Rules contain no provisions relating to EU nationals or members of their family as such.  

16.	We should draw attention to the fact that this line of reasoning depends on the appellants’ being within both Article 3(2) and Regulation 8 (the two may not be congruent).  A person who does not come within the definition of “extended family member” in Regulation 8 has no right to consideration under the discretion; and a person who does not come within the terms of Article 3(2) has no EU right reviewable by means of s84(1)(d).

17.	We conclude that the Tribunal has jurisdiction as claimed by the appellant in this case.  It follows that the Immigration Judge erred in law in confining himself to the question whether the actual exercise of discretion by the Secretary of State was a lawful act by him.  He should have gone on to consider whether the discretion should have been exercised differently.  That error of law was clearly material, because it cannot be said that if it had not been made, the result would necessarily have been the same.  

18.	We must therefore consider whether the appeal should be allowed or dismissed.  The appellant did not give oral evidence before the Immigration Judge, choosing to rely instead solely on his history as recorded.  There was no additional evidence before us: Mr Lam did, however, assert that the appellant’s partner is pregnant.  No further details were available.  Mr Lam submitted that the appellant had been of good behaviour.  He had committed no criminal offences, and had never drawn any benefits.  He had not worked; he had always relied on his wife or partner to support him.  He had been in the United Kingdom for a considerable length of time and had been with his partner since 2004.  His only reason for not wanting to travel now was so that he could remain with her.  They had not been able to get married because of the restrictions on marriages by immigrants, although they had entered into an Islamic marriage ceremony.  There were no facilities for obtaining entry clearance in Algeria and he would have to make an application (whether by post or in person) to the British Embassy in Tunis.  

19.	It is for the appellant to show that the Secretary of State’s discretion should have been exercised differently.  Although the appellant’s case was that the only ground for refusal was that the appellant had no leave at a time of the decision, that is not quite right.  There were two additional grounds.  One was that the appellant was not merely a person without leave: he was an overstayer.  The other was that the Secretary of State’s attempts to maintain the practice of treating unmarried partners of EEA nationals in a manner which is in substance no different from the treatment of unmarried partners of British citizens.  The appellant entirely fails to persuade us that such a policy should not be applied to him.  The Secretary of State’s decision was undoubtedly lawful, and, further, we are not persuaded that the Secretary of State’s decision should have been exercised differently.  

20.	Like the Immigration Judge, we turn briefly to Article 8, although the grounds for reconsideration do not raise human rights issues.  The appellant is perfectly able to travel and he and his partner have always known that his immigration status was precarious.  His partner may, if she chooses, travel with him, or she may remain here in order to support any application he makes for entry clearance from abroad.  There is nothing in his case to suggest that it would be disproportionate to apply to him the rules that are applicable to him as an unmarried partner of an EEA national who seeks to live with his partner here.  

21.	For the foregoing reasons, having found a material error of law in the Immigration Judge’s decision, we substitute a determination dismissing the appeal.

C M G OCKELTON
DEPUTY PRESIDENT
          Date: