United Kingdom Asylum and Immigration Tribunal

CO (EEA Regulations: family permit) Nigeria [2007] UKAIT 00070

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 12 June 2007

Date Determination notified: 31 July 2007

Before

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

Senior Immigration Judge Deans

Between

CO	APPELLANT
and
THE ENTRY CLEARANCE OFFICER, LAGOS	RESPONDENT

For the Appellant: Mr O Stockman BL, instructed by Madden & Finucane For the Respondent: Mr M Matthews, Home Office Presenting Officer

DETERMINATION AND REASONS

Regulation 12 of the Immigration (European Economic Area) Regulations 2006 is purely a creation of UK law. A person who is unable to obtain an "EEA family permit" under that regulation is not precluded from admission to the United Kingdom if he has an EU right to admission. The procedure in such cases is that in reg 11(4).

1. The appellant, a citizen of Nigeria, applied to the respondent Entry Clearance Officer for an EEA Family Permit to enable him to enter the United Kingdom and reside with the sponsor, a Polish national who he says is his father. The Entry Clearance Officer refused the application. The appellant appealed to an Immigration Judge, who allowed the appeal and directed that entry clearance be granted. The respondent sought and obtained an order for reconsideration. Thus the matter comes before us.
2. We are aware that there has been concern amongst practitioners and others about the regulations relating to the issue of EEA Family Permits; questions have been raised about whether the terms of the regulations are consistent with those of the Directive which they purport to implement. This appeal gives us an opportunity to set out the position as we see it.
3. Council Directive 2004/38/EC has as its subject "The right of citizens of the Union and their family members to move and reside freely within the territory of the Member States". It had to be brought into force in Member States by 30 April 2006. Its scope is set out in Article 3.1:

"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 as defined in point 2 of Article 2 who accompany or join them."

The definition of "family member" for these purposes includes the spouse, the civil partner in Member States where civil partnerships are recognised, the direct descendants under the age of 21 of the principal, the spouse or the civil partner, and the direct descendents and ascendants of the principal, the spouse or the civil partner who are dependants. The rights that the Directive gives to those encompassed by it include rights of entry and residence in Member States. Those rights are, subject to the conditions imposed by the Directive, available not only to Union citizens but also to family members of Union citizens who are not themselves Union citizens. There is little doubt that the Directive has, to some extent at least, direct effect.

4. That latter point ought to be of no importance, because of the obligation on Member States to implement the Directive. Implementation in the United Kingdom was by the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003), which came into effect on 30 April 2006. By the transitional provisions in Schedule 4, those Regulations are made to apply to applications and appeals pending on the date of commencement. It is to the Regulations, as the United Kingdom legislation, that a United Kingdom court needs to look first: but it must remain open to an appellant to assert that the Regulations deny him a right that the Directive gives him. If he should establish that that is so, his case should be considered directly under the terms of the Directive. Appellants have very often chosen to raise such arguments, with the result that the Tribunal has frequently had to consider the terms of the Directive.
5. In the present case, the appellant, who is under 21 and claimed to be the son of a Union citizen exercising Treaty rights in the United Kingdom, set about making his arrangements for joining his father here. He applied for entry clearance in Lagos and was refused. The reasons given for refusal were, broadly speaking, that the Entry Clearance Officer was not satisfied on the basis of the evidence before him that the appellant was related as claimed to the person he said was his father, nor that that person was a Polish national exercising Treaty rights in the United Kingdom. The Immigration Judge saw the sponsor and his passport, and concluded that he is indeed a Polish national exercising Treaty rights in the United Kingdom. She also concluded on the basis of the evidence before her that the appellant is his son. Those findings are not now disputed. It follows that the Entry Clearance Officer's reasons for refusal can no longer be regarded as having merit. But the Immigration Judge's decision to allow the appeal was met by grounds for reconsideration as follows:

"The Immigration Judge has allowed this case as [she] has accepted that the appellant is related to the sponsor as claimed and that he would qualify under the EEA Regulations as a dependent family member. However, family members of EEA nationals would only have the right of free movement if they are already lawfully resident in a Member State. This is confirmed in the case of Secretary of State for the Home Department v Akrich (Case C-109/01). The appellant resides in Nigeria and has not previously been residing in a Member State. He cannot qualify under Regulation 12(b)(ii). It is therefore submitted that he would need to meet the requirements of paragraph 297 of the Immigration Rules."

6. It is difficult to escape the conclusion that the Immigration Judge failed to consider regulation 12 of the EEA Regulations at all. The question that is of more interest is whether she needed to do so. Regulation 12 is, so far as relevant, as follows:

"12. – (1) An entry clearance officer must issue an EEA family permit to a person who applies for one if the person is a family member of an EEA national and –

(a) the EEA national –

(i) is residing in the UK in accordance with these Regulations; or

(ii) will be travelling to the United Kingdom within six months of the date of the application and will be an EEA national residing in the United Kingdom in accordance with these Regulations on arrival in the United Kingdom; and

(b) the family member will be accompanying the EEA national to the United Kingdom or joining him there and -

(i) is lawfully resident in an EEA State; or

(ii) would meet the requirements in the immigration rules (other than those relating to entry clearance) for leave to enter the United Kingdom as the family member of the EEA national or, in the case of direct descendants or dependent direct relatives in the ascending line of his spouse or his civil partner, as the family member of his spouse or his civil partner, were the EEA national or the spouse or civil partner a person present and settled in the United Kingdom.

…

(5) But an EEA family permit shall not be issued under this regulation if the applicant or the EEA national concerned falls to be excluded from the United Kingdom on grounds of public policy, public security or public health in accordance with regulation 21."

Regulation 12 sets out the circumstances under which a person applying from abroad (as is implied by the reference to an Entry Clearance Officer) is entitled to an EEA family permit. Sub-paragraph (1)(a) sets out the conditions applying to the EEA national and sub-paragraph (1)(b) sets out the conditions applicable to the family member. As is pointed out in the grounds for reconsideration in the present case, if the family member is not presently lawfully resident in an EEA state, he must meet the requirements of the Immigration Rules in order to be entitled to an EEA family permit. (In the present case the relevant rules would be those in paragraph 297 of the Statement of Changes in Immigration Rules, HC 395. As the appellant's mother is alive he would need to establish that his father has had sole responsibility for his upbringing or that there are serious and compelling family or other reasons making his exclusion undesirable. There is no suggestion that he can meet the requirements of paragraph 297.)

7. The effect of an EEA family permit is that it gives a right of admission to the United Kingdom. That is the effect of regulation 11, which provides as follows:

"11. - …

(2) A person who is not an EEA national must be admitted to the United Kingdom if he is a family member of an EEA national … and produces on arrival –

(a) a valid passport; and

(b) an EEA family permit, a residence card or a permanent residence card."

Paragraph 5 of regulation 11 makes that regulation subject to regulation 19(1) and (2), which are as follows:

"19. – (1) A person is not entitled to be admitted to the United Kingdom by virtue of regulation 11 if his exclusion is justified on ground of public policy, public security or public health in accordance with regulation 21.

(2) A person is not entitled to be admitted to the United Kingdom as the family member of an EEA national under regulation 11(2) unless, at the time of his arrival -

(a) he is accompanying the EEA national or joining him in the United Kingdom; and

(b) the EEA national has a right to reside in the United Kingdom under these regulations."

8. Other things being equal, therefore, a holder of an EEA family permit is entitled to admission to the United Kingdom to accompany or join the EEA national whose family member he is. What the regulations do not say, however, is that a person who does not have a family permit is not to be admitted. It would be surprising if there were such a provision in the regulations because of the right of admission apparently given by the Directive. As we have seen, certain family members (that is to say those who are not already lawfully resident in an EEA state) can have a family permit only if they meet the requirements of UK immigration law. No such restriction on the admission of family members of Union citizens is recognised in the Directive.
9. The regulations do not, however, merely fail to prohibit the admission of a family member who does not have an EEA family permit: they clearly allude to it as a possibility. Regulation 11(4) is as follows:

"11. – …

(4) Before an immigration officer refuses admission to the United Kingdom to a person under this regulation because the person does not produce on arrival a document mentioned in paragraph (1) or (2), [which we have set out above], the immigration officer must give the person every reasonable opportunity to obtain the document or have it brought to him within a reasonable period of time or to prove by other means that he is -

(a) an EEA national;

(b) a family member of an EEA national with a right to accompany that national or join him in the United Kingdom; or

(c) a family member who has retained the right of residence or a person with a permanent right of residence under regulation 15."

The emphasis is ours. It is clear that a person who comes within the definition of "family member" in Art 2.2 of the Directive and who derives a right of admission from the Directive as such a family member is entitled to prove his right to admission to the Immigration Officer regardless of his possession of a family permit.

10. It follows that the procedure for obtaining an EEA family permit under regulation 12 is to an extent optional. That does not mean that it has no purpose. The obtaining of entry clearance is sometimes optional. Some purposes require entry clearance, and the nationals of some countries require visas. A person who is not a visa national, and who seeks entry for a purpose for which no entry clearance is required, is nevertheless at liberty to obtain entry clearance if he wishes to do so. If, having done so, he arrives in the United Kingdom with current entry clearance, he is entitled to admission unless his circumstances have changed or there is some other reason why the entry clearance should not be honoured. For such a person, obtaining an entry clearance before travelling gives some assurance of admission. But he does not need to obtain an entry clearance, and, if he does not do so, is entitled to present himself to the Entry Clearance Officer and show that he satisfies the requirements of the Immigration Rules and should be admitted.
11. The position in relation to EEA family permits appears to us to be similar. Although Article 5 of the Directive contains restrictions on the need for visas in the case of persons to whom the Directive applies, nothing in the Directive requires Member States to use an entry clearance process by which a person's eligibility to be admitted can be determined other than at the border of the state in question. The possibility of obtaining an EEA family permit from a UK Entry Clearance Officer abroad is a procedure not governed by the Directive at all. A person who is able to and wishes to take advantage of it is at liberty to do so. A person who is unable to meet the requirements of regulation 12, or chooses not to obtain an EEA family permit, is at liberty to present himself to the Immigration Officer and prove his eligibility under regulation 11(4). Regulation 12 contains provisions purely of UK law: it has nothing to do with admission under EU law.
12. The effect may be thought to be that the family members of EEA nationals have more extensive rights of admission to the UK than the family members of nationals of the UK itself. But the true position is that their rights are simply different. The rights of family members of EEA nationals are merely parasitic on the rights of the EEA national, and exist in order to enable the EEA national to exercise his Treaty rights. A UK national needs no such assistance to enable him to exercise his rights as a UK national; but his family members are entitled to seek admission on their own account.
13. We should mention one further matter, in case the argument is raised in other appeals. The appellant in this case is a visa national: that is to say his country of nationality is one of those named in paragraph 1 of Appendix 1 to the Immigration Rules. Paragraph 24 provides that a visa national is to be refused leave to enter the United Kingdom if he has no current entry clearance. But EEA nationals and their family members do not require entry clearance. Paragraph 5 of the Immigration Rules is as follows:

"5. Save where expressly indicated, these Rules do not apply to those persons who are entitled to enter or remain in the United Kingdom by virtue of the provisions of the 2006 EEA Regulations. But any person who is not entitled to rely on the provisions of those regulations is covered by these Rules."

A family member of a Union citizen is covered by the 2006 Regulations whether or not he has an EEA family permit: he comes within regulation 11(4). In any event, given that a family permit is not "entry clearance" within the definition in s33 of the Immigration Act 1971, and is not otherwise the subject of reference in the Immigration Rules themselves, the entire process under regulation 12 would be ineffective if family members who are visa nationals had to be refused entry for lack of entry clearance. The position is that the rights under the Directive transcend the controls imposed by the Immigration Rules: but so far at any rate as concerns the situation with which this appeal is concerned, there is nothing in the Regulations or the Immigration Rules that encroaches on a right given by the Directive.

14. The truth of the matter is that, in this as in other similar appeals, the appellant obtained an unwelcome answer because he asked the wrong question. He is not entitled to entry clearance because the purpose for which he seeks entry is not a purpose for which entry clearance is available under the Immigration Rules. He is not entitled to a family permit, because he does not meet the requirements of regulation 12. But what he really wants to know is whether he can enter the United Kingdom as the family member of his father. The answer to that question is in the affirmative if his father is exercising Treaty rights here, despite the appellant's ineligibility for entry clearance or a family permit.
15. The Immigration Judge evidently and materially erred in law through her failure to consider regulation 12, and in her direction that entry clearance be granted to a person who is not eligible for it, for a purpose for which entry clearance was not available. However, her findings demonstrate that, while the appellant's father is here exercising Treaty rights, the appellant is entitled to be with him if he shows that he is his son and is under 21. The part of the Immigration Judge's judgment that is not challenged is amply sufficient to enable him to do that.
16. For the foregoing reasons, having found that the Immigration Judge materially erred in law, with the consent of the appellant's representatives, we substitute a determination dismissing the appeal. The appellant was and is entitled neither to entry clearance nor (following the commencement of the 2006 Regulations) to an EEA family permit. The outcome of this litigation is, however, that the appellant has established that he is the family member of the person he claims he is namely his father. It follows that he is entitled to the admission to the United Kingdom within the provisions of regulation 11(4). The administrative arrangements (if any) needed to enable him to exercise that right are not a matter for us. For the reasons we have given, the appeal against refusal of UK EEA family permit is dismissed.

C M G OCKELTON

DEPUTY PRESIDENT

Date: