United Kingdom Asylum and Immigration Tribunal

GC (Citizens Directive: UK national's spouse) China [2007] UKAIT 00056

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 8 June 2006 & 13 April 2007

Date Determination notified: 4 June 2006

Before
Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal Designated Immigration Judge Barton Immigration Judge Easterman
Between

GC	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the Appellant: Mr R de Mello & Mr A Berry, instructed by Harvey Son & Philby Solicitors For the Respondent: Mr D'Silva, Home Office Presenting Officer DETERMINATION AND REASONS

The Citizens Directive, 2004/38/EC, gives no absolute right of residence to a person not himself a national of a Member State who is married to a UK national. Even if the UK national has exercised Treaty rights by working in another Member State before returning to the UK, the UK national's movement unaccompanied by the spouse does not confer a right of residence on the spouse.

1. The appellant, to whom we shall also refer as "C", a citizen of China, appeals against an EEA decision made by the respondent on 13 February 2005 refusing to issue him with a residence permit or residence document.
2. In this appeal, there is no dispute as to the facts. The legal issues raised are complex and of wider interest. A decision was therefore made to list the appeal for hearing before a panel constituted of three legally-qualified members. We heard submissions on 8 June 2006. We adjourned the appeal part-heard in order to await the decision of the European Court of Justice in Case C-1/105 Jia v Migrationsverket. The Court's judgment was given on 9 January 2007. We then attempted to arrange a further hearing in order to decide whether the issues arising in this appeal should be referred to the Court. Submissions were made to two of us on 13 April 2007. We have decided no reference is necessary, and we make the present determination on the basis of the arguments we heard on 8 June 2006.
3. The appellant was born on 8 April 1972. He came to the United Kingdom and entered clandestinely on 31 October or 1 November 1995, having travelled from China via Moscow. He remained unlawfully in the United Kingdom. In the summer of 1996 he was arrested and he claimed asylum on 12 August. The Secretary of State considered his application, refused it, and on 2 May 2002 gave directions for his removal to China as an illegal entrant. The appellant appealed on asylum and human rights grounds. The appeal was listed for hearing. At the hearing he withdrew his grounds insofar as they were based on any claim under the Refugee Convention: his argument was instead based solely on the European Convention on Human Rights. He said that if returned to China he would be at fear of retribution from the snakeheads from whom he had borrowed money in order to travel to the United Kingdom; but the main burden of his appeal was based on his activities since he came to the United Kingdom. He said that he had entered into both a relationship and a business partnership with a British citizen, to whom we shall refer as "N". Together he and she ran a Turkish-Chinese restaurant. He was the cook; she was the front of house manager; they employed two or three other staff. The restaurant could not function without him. He has no passport and could not easily return to China, but in any event, his return to China even for the short period necessary to obtain entry clearance either as N's partner or for business purposes would destroy the business. The Adjudicator believed everything he was told by all the witnesses before him, and allowed the appellant's appeal on Article 8 grounds. His determination was sent to the parties on 25 February 2004. The Secretary of State sought and obtained permission to appeal to the Immigration Appeal Tribunal on a point of law. The hearing before the Tribunal was on 20 January 2005. The Tribunal decided that it was not in law open to the Adjudicator to allow the appeal on the facts which he had found. There was no reason to suppose that the appellant could not obtain a passport, return to China, obtain entry clearance, and regularise his position. The Tribunal found that the circumstances of the appellant's private and family life did not demand departure from the Immigration Rules. The effect of the Immigration Appeal Tribunal's decision was, of course, to restore the decision against which the appellant appealed. The Tribunal's determination was sent to the parties on 10 February 2005.
4. On 22 February 2005 the appellant married N at Leicester Register Office. Evidently the business could continue without N, for she then went to the Republic of Ireland. She appears to have started work in Eire a few days after the wedding, because her first pay appears to be for a full week ending 4 March. After about six months she returned to the United Kingdom. She obtained work. Her employer is the appellant.
5. On the basis of these facts it is claimed that the appellant now has the right of residence in the United Kingdom as the spouse of N, she being a person having the nationality of a Member State of the European Union (in this case the United Kingdom) who is a worker in a Member State of the European Union (in this case also the United Kingdom).
6. We need say little more about the facts, other than to make three observations. The first is that it is common ground that the relationship between C and N is a genuine one. There is no suggestion of a "marriage of convenience". The second is that C has not left the United Kingdom since he arrived in 1995. He did not accompany N to Eire. Thirdly, the appellant arrived without a passport. Although the Immigration Appeal Tribunal appears to have taken the view that he would have little difficulty in obtaining one, he has not done so. Indeed it is an incidental part of the case put on his behalf before us that he still has no passport.
7. The respondent's decision was made, as we have said, on 13 February 2006. It was therefore made under the Immigration (European Economic Area) Regulations 2000 (SI 2326/2000) as amended, and constituted an EEA decision under those Regulations, which were intended to implement a number of Directives and Regulations. Directive 2004/38/EC of the European Parliament and of the Council on the rights of citizens of the Union and their family members to move and reside freely within the territory of the Member States entered into force on 30 April 2004 and had to be implemented by Member States by 30 April 2006. In the United Kingdom the implementation was (or, the appellant's representatives would prefer us to say, was intended to be) by the Immigration (European Economic Area) Regulations 2006 (SI 1003/2006). Those Regulations came into force on 30 April 2006 and provide in paragraph 5(1) of Schedule 5 that "where an appeal against an EEA decision under the 2000 Regulations is pending immediately before 30 April 2006 that appeal should be treated as a pending appeal against the corresponding EEA decision under these Regulations." Under the old Regulations the appellant, as a person who is not a national of an EEA Member State but who claims to be the spouse of such a person sought a document called a residence document. Under the new legislation the document in question is a residence card. This appeal therefore now falls to be treated as though the appellant had been refused a residence card; and the law governing the appellant is contained not in the 2000 Regulations but in the 2006 Regulations, as implementing Directive 2004/38/EC, which itself repeals earlier Directives on the same issue and Articles 10 and 11 of Regulation (EEC) 1612/68.
8. Article 17 of the consolidated version of the Treaty Establishing the European Community establishes citizenship of the Union, which is possessed by every person holding the nationality of a Member State. That Article also provides that citizens of the Union shall enjoy the rights conferred by the Treaty. Article 18, as amended by the Treaty of Nice, provides that:-

"Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect."

Subsequent Regulations and Directives, in particular Directive 2000/38/EC and those it replaces, have made various provisions removing what would otherwise be clogs on the freedom of a citizen of the Union to move between Member States. There are rules preventing unnecessary demands for documents at state borders, and, in particular, there are rules enabling a person who is exercising Treaty rights, or moving from one Member State to another, to have close family members move with him. The reason for these provisions is clear. If a person could move to another Member State only at the cost of leaving his spouse in the country of his nationality, the right to move would be illusory. It would not be a right of free movement. That position is recognised in broad terms in preamble 5 to Directive 2004/38/EC:

"The right of all Union citizens to move and reside freely within the territory of the Member States should, if it is to be exercised under objective conditions of freedom and dignity, be also granted to their family members, irrespective of nationality."

9. EU legislation therefore provides, particularly in the case of a worker's spouse, that such a person is entitled to move and reside with the worker exercising rights under the Treaties, whether or not the spouse is himself or herself a national of a Member State of the Union. The process adopted for enforcement of the rights of family members including spouses is that, provided the relationship is established and is within the categories set out in the Directive, a family member accompanying or joining the EU national is entitled to be issued with a residence card as evidence of the right of residence as such a family member.
10. The facts of the present case are apt to test the terms and the logic of these provisions to the utmost. The appellant has (save on the basis of his claim to a residence card) no right to be in the United Kingdom. He claims, however, that he cannot leave the United Kingdom, because of his business. He also perhaps cannot leave the United Kingdom because he has no passport and appears to propose to take no steps to get one. His wife is able to move within the Member States; her ability and freedom to do so are, on the facts, not in any way affected by the failure to issue an EEA document to her husband. He says that, because she has worked in another Member State and now returns, she is exercising Treaty rights. He says that, because she is exercising Treaty rights, he has rights as her spouse which he would not have if she had not worked for a few months in Eire and returned to the United Kingdom. He says that the effect of his wife's movements is that he is now entitled to be regarded as lawfully in the United Kingdom and entitled to remain with her. In other words, his wife's movements have rendered his presence in the United Kingdom lawful.
11. We have to say that we should regard that conclusion as strikingly odd. In the absence of authority we should reject the argument, for the following reason. The rights of free movement are the rights of the EU national: any rights that a family member may have are dependent upon the EU national's rights. The purpose of the Directives and other legislation to which we have referred is to prevent there being any clog on the EU national's right of free movement and residence. But in order to avoid clogging the rights, all that is required is that the EU national be entitled to have family members with him or her under broadly the same conditions in any of the Member States, and despite any movement between Member States. There is no reason to suppose that it is intended that a family member's rights be enhanced by the Union citizen's movements. In a case such as the present, the Union citizen, N, is married to a person who is unlawfully present in the United Kingdom. He may be required to leave at any moment. That is a feature of the relationship between them. The Regulations do their job if they prevent a deterioration in the relationship being caused by the EU national's exercise of her Treaty rights. As (following the dismissal of his appeal) the appellant is not entitled to reside in the United Kingdom (with or without N) she loses nothing if he is also not entitled to reside with her in any other Member State. She also therefore loses nothing if, on her return to the United Kingdom, he is not entitled to reside with her. The purpose of the rules on free movement of Union citizens with their families requires no more than this.
12. For these reasons we should have taken the view in principle that the appellant's claim to a residence card cannot succeed. His right depends on N's right of free movement; although he is married to her, her position is not at all affected if he has no EU right to be with her.
13. The matter is, however, of course not free of authority. For the appellant, Mr de Mello relied in particular on the decisions of the European Court of Justice in Case C-1 370/90 R v IAT and Surinder Singh, ex parte SSHD [1992] ECR I-4265, Case C-459/99 Mouvement contre le racisme, l'antisémitisme et la xénophobie ASBL (MRAX) v Belgian State [2002] ECR I-6591 and Case C-60/00 Carpenter v SSHD [2002] ECR I-6279. For the respondent Mr D'Silva relied particularly on Case C-109/01 Akrich v SSHD [2003] ECR I-9607. Both parties referred us to the opinion of the Advocate General in Jia, then available (for a reason that was not explained) only in French, with a partial and unofficial translation into English.
14. One of the issues which concerned both parties was whether the fact that the appellant's presence in the United Kingdom (unless legalised by his marriage to N) has always been unlawful prevented his claim succeeding. It is fair to say, however, that this was not the specific reason for the refusal of the appellant's application. Further, it is clear that it is not possible to derive from either Community legislation or from the decided cases any absolute prohibition on the accrual of a right of residence to a person who is not a national of a Member State but is the family member of a Union citizen, and whose presence in a Member State has been unlawful. That, however, is the aspect of the case of which the Court's decision in Akrich might be seen as particularly relevant; and the Advocate General's opinion in Jia sought to build on such a principle. The Court itself in Jia did not find it necessary to express an opinion on this issue. We also do not need to do so. As will be apparent from what follows, we consider the appellant's history to be of considerable importance in the resolution of this appeal. That is not, however, because, having been here unlawfully, he cannot establish a right to residence as the family member of a Union citizen. It is because every case has to be considered on its own facts.
15. For the appellant, Mr de Mello sought to establish a principle that a spouse of a Union citizen was always entitled to a right of residence with the Union citizen if the latter had exercised or was exercising Treaty rights. A right of residence, he said, flowed from the marriage itself. That principle he sought to derive from the three cases to which we have referred. We need to look at them in some detail.
16. In MRAX the claimant body sought the annulment of a governmental circular dated 28 August 1997 relating to the "documents which must be produced in order to obtain a visa for the purpose of contracting a marriage in [Belgium] or to obtain a visa for the purpose of reuniting a family on the basis of a marriage contracted abroad". The circular provided that an application for residence on the basis of marriage should in principle be declared inadmissible if it was not accompanied by a passport or substitute travel document and a visa permitting entry for the purpose of marriage or family reunification. The questions referred to the Court, by the Belgian Conseil d'Etat may be stated as follows:

"1. Must the European legislation be interpreted as meaning that the Member States may, at the border, send back foreign nationals subject to a visa requirement and married to a Union citizen who attempts to enter the territory of a Member State without being in possession of an identity document or visa?

2. Must the European legislation be interpreted as meaning that Member States may refuse to issue a residence permit to the spouse of a Union citizen who has entered their territory unlawfully and may issue an expulsion order against him?

3. Does the European legislation mean that Member States may neither withhold a residence permit nor expel a foreign spouse of a Union citizen who has entered national territory lawfully but whose visa has expired when application was made for the issue of that permit?

4. Must the European legislation be interpreted as meaning that foreign spouses of Union citizens who are not in possession of identity documents or a visa or whose visa has expired have the right to some sort of appeal against refusal of a permit or expulsion?"

We have summarised the questions in order to avoid complications. We do not need to set out the European legislation, because it is common ground before us that the 2004 Directive has for these purposes the same effect as the legislation under consideration in MRAX.

17. The first question relates to the right of entry by a spouse of a Union citizen. The answer given by the Court at [62] is that:

"A Member State may not send back at the border a third country national who is married to a national of a Member State and attempts to enter its territory without being in possession of a valid identity card or passport or, if necessary, a visa, where he is able to prove his identity and the conjugal ties and there is no evidence to establish that he represents a risk to the requirements of public policy, public security, or public health."

18. The second question relates to a spouse's right of residence after unlawful entry. Although the Court's treatment of the issue is not absolutely specific, it is clear that the question is concerned both with a person who has entered the country unlawfully subsequent to his marriage, and a person who marries in the country subsequent to his unlawful entry. That the latter was in issue is clear from the submissions of the claimant recorded in paragraph [74] of the Advocate General's opinion. In giving its answer, the Court noted that the refusal of a residence permit (or, a fortiori, the making of an expulsion order) based "solely on the failure of the person concerned to comply with legal formalities concerning the control of aliens" would strike at the heart of the right of residence. It answered the question in the following way:

"A Member State is not permitted to refuse issue of a residence permit and to issue an expulsion order against a third country national who is able to furnish proof of his identity and of his marriage to a national of a Member State on the sole ground that he has entered the territory of the Member State concerned unlawfully."

19. The third question concerns those who have entered lawfully, but whose permission to remain in the Member State has expired at the time the application for residence is made. The answer given is that:

"A Member State may neither refuse to issue a residence permit to a third country national who is married to a member of a national state and entered the territory of that Member State lawfully, nor issue an order expelling him from the territory, on the sole ground that his visa expired before he applied for a residence permit."

20. We do not need to look at the fourth question.
21. We are not persuaded that the judgment in the Court of MRAX establishes an absolute right arising from the marriage. The Court dealt with the three issues before it separately, but the underlying theme as we see it is that the mere absence of a formal requirement, such as a passport, or a visa, or even lawful entry, is not of itself sufficient to defeat the right of residence that the spouse would otherwise have. In reaching its answers to the first and the second questions, the Court reminded itself of its decision in Case 48/75 Criminal proceedings against Royer [1976] ECR 497. That decision establishes, in the Court's words:

"That the mere failure by a national of a Member State to comply with the formalities concerning the entry, movement and residence of aliens is not of such a nature as to constitute in itself conduct threatening the requirements of public policy and public security."

It will be recalled that in the Court's treatment of its answer to question 2 the Court noted that the claim is not to be defeated by the "mere" lack of documents or "on the sole ground" that the claimant's entry to the country was unlawful.

22. It is clearly the second question which is most apposite in considering the appeal before us. Nevertheless, it is instructive to consider the facts of the present case in the light of the three scenarios posed by the claimant and answered by the Court in MRAX.
23. The first question relates to an individual, not a national of a Member State, who presents himself at the border of the Member State and asserts his right to entry and residence on the ground of his marriage to a Union citizen. He is a person who is (already) a family member of the Union citizen. The Court's ruling in MRAX is that his substantive rights as a family member of a Union citizen cannot be defeated by the mere lack of the formal document normally required for entry to the Member State.
24. In the second situation, the claimant has entered the Member State unlawfully, and by the time he makes his application is the spouse of a Union citizen. The Court rules that for such a person also, the mere lack of formalities cannot defeat the right of residence that he has as the spouse of a Union citizen. The Court makes it clear that the lack of a formal permission to enter the country is not, for these purposes, to be taken seriously – although it may merit a fine or other proportionate measure. What the Court does not say is that conduct going beyond the mere non-observance of formalities is to be similarly condoned. Royer establishes that mere non-observance of formalities is not a threat to public policy or public security; but there is no suggestion here that the deliberate flouting of immigration law by a person who has no entitlement to be in the country is to be viewed in the same way. The present appellant is, of course, not a person whose failure can be regarded as purely formal. He has been in the country since 1995, and although he was under domestic law irremovable during the course of the consideration of his asylum claim, the eventual withdrawal of that claim and the outcome of his appeal shows that he had no right to be in the United Kingdom during that period. The right he presently claims, if it exists at all, arises only from his marriage on 22 February 2005, after nine and a half years unlawful presence in the United Kingdom. In our judgment he cannot realistically be treated as a person who has merely failed to comply with formalities. We do not say, and the Secretary of State does not say, that he should be expelled on public interest or public security grounds: it is not necessary to go that far. But, on the other hand, the Court's answer to the second question in MRAX does not apply to him.
25. We can treat the third question rather more summarily, as we did the first. Here the claimant is a person who entered the country lawfully, but has remained without leave. Again, the Court's view is that the substantive right of the spouse of the Union citizen is not to be defeated by the mere lack of formal compliance with the country's immigration laws, by allowing his permission to remain in the country to expire. Again the Court gives no indication of whether it makes any difference whether the claimant overstays by a short or a long period. One thing is clear, however, which is that in this scenario the claimant entered lawfully. He made it clear, on arrival, that he was prepared at that state to submit himself to the Member State's immigration law.
26. In the present case the appellant neither sought entry as a spouse on arrival, nor did he obtain lawful admission by any other means. So questions 1 and 3 are not directly applicable to him. The answer to question 2 is not applicable to the facts of his case, as we have indicated. It would be impossible to lay down any absolute principles of whether a failure to comply with the requirements of immigration law is purely formal or whether it goes beyond that. In the present case, however, it is clear that there is more than a mere failure to comply with formalities. The Court's judgment in MRAX does not show that marriage to a Union citizen who has exercised or is exercising Treaty rights will cure any illegality: it establishes only that the relationship arising from marriage is generally to be considered as more important than the compliance with purely formal legal rules.
27. We turn now to Carpenter. The decision in this case was given two weeks before that in MRAX, but the constitution of the Court was identical in the two cases, which also had the same Advocate General and the same Judge Rapporteur. Whereas in MRAX the questions posed to the Court arose from an action brought in general terms and in principle by a pressure group, in Carpenter the questions posed to the Court arose from the actual facts of an individual case.
28. In Carpenter, the appellant was a citizen of the Philippines. She came to the United Kingdom lawfully in 1994 but overstayed her leave. In 1995 she began living with Mr Carpenter. He had two children from a previous marriage, which was dissolved in 1996, following which the appellant and Mr Carpenter married. On 15 July 1996 she applied for leave to remain as his spouse. She was refused, and the respondent decided to deport her as an overstayer, which was a procedure applicable to mere overstayers at that time. As the Court noted, the consequence of a deportation decision would have been that, if the appellant did not leave the United Kingdom voluntarily, she would be deported and could not seek leave to enter as the spouse of Mr Carpenter until the deportation order had been revoked.
29. Mr Carpenter ran a business selling advertising space in medical and scientific journals and offering various administrative and publishing services to the editors of those journals. The business was established in the United Kingdom, where the publishers of the journals were. But a significant proportion of his business was conducted with advertisers established in other Member States. He travelled to other Member States for the purposes of his business. It was considerably easier for him to do so because the appellant was looking after his home and, in particular, his children. For the purposes of the question that the Court had to consider, there was no doubt that the relationship between Mr and Mrs Carpenter was a perfectly genuine one, and that Mr Carpenter would be less able to conduct his business in the United Kingdom if the appellant's absence from the United Kingdom made him less able to travel abroad because there was nobody to look after the children.
30. The question for the Court was as follows:

"In circumstances where (a) a national of a Member State, who is established in that Member State and who provides services to persons in other Member States, (b) has a spouse who is not a national of a Member State, can the non-national spouse rely on (i) article 49 EC, and/or (ii) Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement on and residence within the Community for nationals of Member States with regard to establishment and the provision of services, to provide the non-national spouse with the right to reside with his or her spouse in his or her spouse's Member State of origin? Is the answer to the question referred different if the non-national spouse indirectly assists the national of a Member State in carrying on the provision of services in other Member States by carrying out child care?"

31. The Court noted at [28] that:

"The provisions of the Treaty relating to the freedom to provide services, and the rules adopted for their implementation, are not applicable to situations which do not present any link to any of the situations envisaged by Community law."

Mr Carpenter's business, however, in providing services for remuneration to advertisers established in other Member States, consisted of providing "services" within the meaning of Article 49 EC. He was therefore availing himself of the right freely to provide services guaranteed by that Article. There can be no doubt at all that the nature of Mr Carpenter's business, which is mentioned a considerable number of times by both the Advocate General and the Court, was a crucial factor in the determination of the answer to the question posed. There is no suggestion in Carpenter that the appellant acquired a right of residence in the United Kingdom simply by virtue of her marriage.

32. Secondly, the Court noted at [36] that:

"Since the Directive [here 73/148/EEC which was one of the items of Community legislation considered in MRAX] does not govern the rights the residence of members of the family or for provider of services in his Member State of origin, the answer to the question referred to the Court therefore depends on whether, in circumstances such as those in the main proceedings, a right of residence in favour of the spouse may be inferred from the principles or other rules of Community law."

33. Directive 2004/38/EC similarly does not govern the right of residence of members of the family of a Union citizen in his member state of origin. In Article 2.3, "host Member State" is defined as meaning "the Member State to which a Union citizen moves in order to exercise his/her right of free movement and residence"; and in Article 3.1 the Directive is prescribed as applying to "all Union citizens who move and reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them".
34. Having made that observation, the Court reminded itself again that the services provided by Mr Carpenter under the freedom guaranteed by Article 49 EC made up a sufficient proportion of his business, and went on to say that it was "in that context" that the protection of the family life of nationals and Member States was of great importance. The remainder of the Court's consideration of the answer to the question consists of an application by it of the provisions of Article 8 of the European Convention on Human Rights to the family situation of Mr and Mrs Carpenter and the effect that the Secretary of State's proposal to deport Mrs Carpenter would have on it. That is to say, the Court conducted an evaluation of the proportionality of deporting Mrs Carpenter, on the particular facts of her case. The Court concluded that her deportation would be a disproportionate interference with "the exercise by Mr Carpenter of his right to respect for his family life" (paragraph [41]), because it "does not strike a fair balance between the competing interests, that is, on the one hand, the right of Mr Carpenter to respect for his family life, and, on the other hand, the maintenance of public order and public safety" (paragraph [43]). The Court's answer to the question referred was therefore as follows:

"Article 49 EC, read in the light of the fundamental right to respect for family life, is to be interpreted as precluding, in circumstances such as those in the main proceedings, a refusal, by the Member State of origin of a provider of services established in that Member State who provide services to recipients established in other Member States, of the right to reside in its territory to that provider's spouse, who is a national of a third country."

35. One of the issues considered by the Advocate General in Jia was whether the Court in Carpenter had been right to consider directly the proportionality of the Member State's reposed action in Mrs Carpenter's case. He took the view that, although the European Convention on Human Rights underlies Community law, it is not itself a part of Community law, nor does it bind the organs of the Community. That is a matter upon which the Court Jia expressed no opinion, and neither do we. The Court's answer in Carpenter, however, is clearly limited to circumstances such as those in the main proceedings, which included the nature of Mr Carpenter's business. It is also very clearly an answer based on the particular facts of the case, which, as well as those of Mr Carpenter's business, included a relatively short timescale and a relatively short period of overstaying by Mrs Carpenter, the fact that she was, by providing childcare during his absence, assisting Mr Carpenter in the operation of his business, and the particular inconvenience of the proposed measure of deportation rather than mere removal.
36. We notice that the Court makes it clear, in its careful formulation in paragraphs [41] and [43], which we have cited above, that it was concerned with Mr Carpenter's Article 8 rights. It was those, coupled with his provision of services under Article 49 EC, that made Mrs Carpenter's deportation disproportionate. Although Mrs Carpenter, as the family member of a Union citizen, came within the jurisdiction of Community law and therefore of the Court, and although she was the claimant, there is no specific consideration of any Article 8 right of hers.
37. The comparison between Carpenter and MRAX is instructive. The Court's consideration of the facts of an actual case in Carpenter shows beyond any doubt the right of a non-Union citizen to enter, reside or remain in a Member State is not to be derived simply from his or her marriage to a Union citizen. The question is a complex one, to be answered on the facts of an individual case, with particular regard to issues such as the activities of the Union citizen and whether they are the exercise of Treaty rights, the conduct of the claimant, and the proportionality of the measure proposed against the claimant.
38. In Surinder Singh the claimant married his wife, a British national, in the United Kingdom. They then both went to Germany and were employed there. In 1985 they both returned to the United Kingdom. The claimant was granted limited leave to remain in the United Kingdom as a foreign spouse. The marriage broke down and for that reason his leave was not extended. He was refused indefinite leave to remain as a spouse. He remained in the United Kingdom without leave and became subject to deportation proceedings. He claimed that his admission to the United Kingdom in 1985 ought not to have been on the restrictive terms generally available to the spouse of a British citizen, but ought instead to have been on the terms appropriate to the spouse of an EU national exercising Treaty rights. His claim is summarised at paragraph 30 of the Court's judgment:

"Mr Singh and the Commission submit that a national of a Member State who returns to establish himself in that State after having pursued an economic activity in another Member State is in the same situation as a national of another Member State who comes to establish himself in that country. In their view he must be treated in the same manner, in accordance with the prohibition of discrimination laid down in Article 7 of the Treaty, and he may therefore rely on Article 52 of the Treaty, particularly in relation to the right of residence of his spouse when the latter is not a national of a Member State."

39. The Court discussed briefly the rights of free movement of nationals of Member States and the derivative rights of their family members. Its conclusions were as follows:

"21. It follows that a national of a Member State who has gone to another Member State in order to work there as an employed person pursuant to Article 48 of the Treaty and returns to establish himself in order to pursue an activity as a self-employed person in the territory of the Member State of which he is a national has the right, under Article 52 of the Treaty, to be accompanied in the territory of the latter State by his spouse, a national of a non-member country, under the same conditions as are laid down by Regulation No 1612/68, Directive 68/360 or Directive 73/148, cited above.

22. Admittedly, as the United Kingdom submits, a national of a Member State enters and resides in the territory of that State by virtue of the rights attendant upon his nationality and not by virtue of those conferred on him by Community law. In particular, as is provided, moreover, by Article 3 of the Fourth Protocol to the European Convention on Human Rights, a State may not expel one of its own nationals or deny him entry to its territory.

23. However, this case is concerned not with a right under national law but with the rights of movement and establishment granted to a Community national by Articles 48 and 52 of the Treaty. These rights cannot be fully effective if such a person may be deterred from exercising them by obstacles raised in his or her country of origin to the entry and residence of his or her spouse. Accordingly, when a Community national who has availed himself or herself of those rights returns to his or her country of origin, his or her spouse must enjoy at least the same rights of entry and residence as would be granted to him or her under Community law if his or her spouse chose to enter and reside in another Member State. Nevertheless, Articles 48 and 52 of the Treaty do not prevent Member States from applying to foreign spouses of their own nationals rules on entry and residence more favourable than those provided for by Community law.

…

25. The answer to the question referred for a preliminary ruling must therefore be that Article 52 of the Treaty and Directive 73/148, properly construed, require a Member State to grant leave to enter and reside in its territory to the spouse, of whatever nationality, of a national of that State who has gone, with that spouse, to another Member State in order to work there as an employed person as envisaged by Article 48 of the Treaty and returns to establish himself or herself as envisaged by Article 52 of the Treaty in the territory of the State of which he or she is a national. The spouse must enjoy at least the same rights as would be granted to him or her under Community law if his or her spouse entered and resided in the territory of another Member State.

…

On those grounds,

THE COURT,

in answer to the question referred to it by the High Court of Justice (Queen' s Bench Division) by order of 19 October 1990, hereby rules:

Article 52 of the Treaty and Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services, properly construed, require a Member State to grant leave to enter and reside in its territory to the spouse, of whatever nationality, of a national of that State who has gone, with that spouse, to another Member State in order to work there as an employed person as envisaged by Article 48 of the Treaty and returns to establish himself or herself as envisaged by Article 52 of the Treaty in the State of which he or she is a national. A spouse must enjoy at least the same rights as would be granted to him or her under Community law if his or her spouse entered and resided in another Member State."

40. This was a case in which the Union citizen was accompanied by her spouse as she moved between Member States. In such circumstances it is not difficult to understand a principle under which there is to be no difference if the movement is to the State of which the Union citizen is a national as distinct from another Member State. It is in the context of that principle that the Court made its observations in Surinder Singh. For those reasons we take the phrase "entry and residence", when applied to the spouse of a Union citizen who is not himself a Union citizen, as a unity: the rights discussed in Surinder Singh are the right to enter and the right, after entry, to reside. We do not read Surinder Singh as conferring on the spouse who is not himself a Union citizen a right to reside in a Member State unaccompanied by any right of entry. The right that a Union citizen has to be accompanied by his or her spouse when entering a Member State in the exercise of Treaty rights or even, as Surinder Singh shows, in the exercise of his or her rights of nationality does not imply an ability to confer on the spouse a right of residence unassociated with any movement by the spouse. In terms of the practicalities of the right of free movement, the position is that a Union citizen who chooses to exercise the rights of free movement unaccompanied by her spouse cannot confer rights on the spouse by her movement save insofar as the spouse's rights are necessary to ensure the reality of the Union citizen's freedom of movement.
41. For these reasons we reject the argument that the decision of the Court in Surinder Singh gives a general right of residence to spouses. It must be read as deciding that the spouse of a Union citizen exercising Treaty rights who seeks entry to a Member State for the purpose of residing with his or her spouse is entitled to have his request for entry and residence in the Member State determined by the provisions of EU law, even if the Member State is the state of his or her spouse's nationality.
42. We conclude that the jurisprudence upon which Mr de Mello relied does not assist the appellant.
43. We turn now to the Citizens Directive. The relevant provisions are as follows. Article 2 contains definitions of a "Union citizen" as any person having the nationality of a Member State, a "family member" as including his or her spouse, and "host Member State" as "the Member State to which a Union citizen moves in order to exercise his/her right of free movement and residence". Article 3 is headed "beneficiaries". The first paragraph is as follows:

"This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members … who accompany or join them".

Paragraph 2 of Article 3 is not relevant to this appeal. Article 4 concerns the right of exit; Article 5 concerns the right of entry. Neither is relevant to this appeal. Article 6 is as follows:

"Right of residence for up to three months

1. Union citizens shall have the right of residence on the territory of another Member State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport.

2. The provisions of paragraph 1 shall also apply to family members in possession of a valid passport who are not nationals of a Member State, accompanying or joining the Union citizen."

Article 7, so far as relevant, is as follows:

"Right of residence for more than three months

1. 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:

(a) are workers or self-employed persons in the host Member State; or

(b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State' or

(c) - are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and

- have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members not to become a burden on social assistance system of the host Member State during their period of residence; or

(d) are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c).

2. The right of residence provided for in paragraph 1 shall extend to family members who are not nationals of a Member State, accompanying or joining the Union citizen in the host Member State, provided that such Union citizen satisfies the conditions referred to in paragraph 1(a), (b) or (c)."

44. In this appeal the appellant claims a right of residence. That right would have to be derived from the Directive. But the appellant is not a beneficiary of the Directive as defined by Article 3, because he has not accompanied or joined his wife. He has merely remained in the United Kingdom while she left him and returned to him. We are inclined to think that Article 3(1) is in fact intended to refer only to family members who accompany the Union citizen in his movement to a Member State other than that of which he is a national or join him as a resident in such a state. But even without adopting that narrower interpretation, it is clear that the appellant is not a beneficiary of the Directive.
45. Even if he were, he would have neither the right of residence for up to three months under Article 6 or the right of residence for more than three months after Article 7, because he has not accompanied or joined the Union citizen as required by Article 6(2) and Article 7(2).
46. Does Surinder Singh require the Directive to be read more widely? We think not. Surinder Singh requires that the Directive be read in such a way that a Union citizen returning to his country of nationality has the same rights of free movement as a Union citizen going to any other country, which means that his family members must have the same rights as if he were moving to another Member State. For that reason, it may be that, in circumstances such as those in Surinder Singh itself, the phrase "host Member State" in Article 7(2) would have to be read as including the State of which the Union citizen was a national: that is to say, for these purposes, the Union citizen would have to be regarded as moving "in order to exercise his/her right of free movement and residence" even if he were returning to his own country of nationality. His entry into that country might indeed, as Surinder Singh recognises, be an exercise of his rights as a citizen of that country, but he might nevertheless, within the meaning of the definition in Article 2(3), be moving "in order to" exercise his rights of free movement and residence.
47. Surinder Singh requires nothing more. In particular, it does not require that all the references to family members who are not themselves Union citizens accompanying or joining Union citizens be read as though they were references to the Union citizen joining the family member. The right of free movement and residence is the right of the Union citizen. The family members' rights of free movement and residence exist only in order to support the Union citizen's rights. The fact that the Union citizen may have a family member already in the Member State to which he moves does not in any way affect his right to move there or reside there, nor, in particular, does it make it any less likely that he will choose to move or reside there. The factual situation in this appeal is not one in which it can be said that the failure to recognise a right in the appellant to reside in the United Kingdom affects the exercise of rights of free movement of his spouse.
48. Although we have taken the view that illegal presence in a country, particularly long-term or flagrant illegality, ought to be taken into account in reading the judgments of the Court in the cases to which we have referred, our own decision does not depend on the appellant's illegal presence here. It depends solely on the fact that, as he has not accompanied or joined his spouse, the Directive gives him no rights of entry or residence, and has no need to do so. We do not say that it would never be relevant to consider whether the appellant's presence was lawful, but we do not think that this case turns on it. It is for that reason that we have not found it necessary to analyse the decision of the Court in Akrich. We have also not found it necessary to consider the Directive's requirements as to documentation. It may be (we say no more than that) that a person claiming a right arising solely from unlawful presence would find some difficulties in them.
49. The appellant has no right under EU law to reside in the United Kingdom. The refusal to issue him a residence document (now, under the Transitional Provisions of the Immigration (EEA Regulations) 2006, to be treated as the refusal to issue him a residence card) was a lawful decision.
50. For completeness we should add that the appellant has no rights under any other part of the Directive. In particular, Article 3(2) does not apply to him, because it does not apply to spouses. The Immigration (European Economic Area) Regulations 2006, may, by Article 37 of the Directive, contain provisions more generous than those of the Directive. The Regulations are, however, of no assistance to the appellant, because he is not a spouse of a "qualified person". The reason for that is that "qualified person" is defined in Regulations 6(1) and 2(1) as a person who is in the United Kingdom but is a national of an EU State other than the United Kingdom. If N had been a "qualified person" it may be that the Regulations would indeed have entitled the appellant to more by way of rights of residence than EU law would have given him. If so, the right would, we apprehend, have been a UK right rather than an EU right. But the issue does not arise here. Regulation 9, which alone gives rights to the family members of some UK nationals, does not apply to the appellant.
51. We turn now to Article 8. The appellant claims that his rights under that Article would be interfered with disproportionately if he were required to leave the United Kingdom as a result of the refusal to issue him with a residence card. There are provisions in the Immigration Rules enabling a person who wishes to enter the United Kingdom as the spouse of a British citizen to obtain entry clearance from abroad if he meets certain requirements. It is clearly open to the appellant to make such an application. If it were refused, he could succeed in an appeal on human rights grounds if the refusal breached his human rights. We are not concerned with the legality of a decision not yet made following an application not yet made. We are concerned instead with the question whether requiring the appellant to return to his own country to seek entry clearance would be disproportionate in his case.
52. He has a long-term relationship with his spouse, extending back beyond their marriage. But there is no reason to suppose that their separation for a short period (if she decided not to travel with him) would amount to an interference with their right to family life. After all, they voluntarily separated for a period of six months within a week or two after the marriage. In so far as it may constitute an interference, however, we take it into account. The appellant has no passport and has said that he is in danger in China, but he has exhausted his rights of appeal and we must treat him as a person who would not be at risk on return to China. Further, there is no reason to suppose that he cannot obtain a passport. He has a business in the United Kingdom, but there is no evidence, other than his bare assertion, that it cannot continue during a relatively short period of absence by him. In any event, he will be entitled to work in the United Kingdom if he obtains entry clearance as a spouse, and there is no reason to suppose that he would not be able to obtain suitable employment if the business did not continue. The appellant's wife, similarly, although presently employed in the appellant's business, is clearly able to obtain employment elsewhere, as her history shows. We should add that, as we understand it, the appellant's working and his employment of his wife are both illegal, because he has no basis of stay in the United Kingdom. They ought probably therefore to be regarded as inherently temporary.
53. In all the circumstances of this case we are entirely unpersuaded that requiring the appellant to comply with the Immigration Rules applicable to spouses, and to obtain Entry Clearance from abroad, would be a disproportionate interference with the rights guaranteed by Article 8 or any other of his Convention rights.
54. For the foregoing reasons, the appellant's appeal is dismissed.

C M G OCKELTON

DEPUTY PRESIDENT

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