YB (EEA reg 17(4) - proper approach) Ivory Coast  UKAIT 00062
ASYLUM AND IMMIGRATION TRIBUNAL
Date of hearing: 24 April 2008
Date Determination notified: 11 July 2008
Senior Immigration Judge Storey
Senior Immigration Judge McKee
|Secretary of State for the Home Department||RESPONDENT|
For the Appellant: Miss D Qureshi of Counsel instructed by C K Solicitors
For the Respondent: Mr J Wells, Home Office Presenting Officer
DETERMINATION AND REASONS
1. Neither the Citizens Directive (2004/38/EC) nor regulation 17(4) of the Immigration (European Economic Area) Regulations 2006 confers on an "other family member" or "extended family member" of an EEA national exercising Treaty rights a right to a residence card; consistent with the Directive, reg 17(4) makes it discretionary.
2. In deciding whether to issue a residence card to an extended family member of an EEA national under reg 17(4) the decision-maker should adopt a three-stage approach so as to:
(a) first determine whether the person concerned qualifies as an extended family member under reg 8 (in this case, to determine whether the appellant was "in a durable relationship").
(b) next have regard, as rules of thumb only, to the criteria set out in comparable provisions of the Immigration Rules. To do so ensures the like treatment of extended family members of EEA and British nationals and so ensures compliance with the general principle of Community law prohibiting discrimination on the grounds of nationality. The foregoing means that for reg 17(4) purposes the comparable immigration rules cannot be used to define who are extended family members, but only to furnish rules of thumb as to what requirements they should normally be expected to meet. The fact that a person meets or does not meet the requirements of the relevant immigration rules cannot be treated as determinative of the question of whether a residence card should or should not be issued.
(c) ensure there has been an extensive examination of the personal circumstances of the applicant/appellant. It may be that in many cases such an examination will have been made in the course of assessing the applicant's position vis a vis the immigration rules. But in principle the third stage is distinct, since the duty imposed by the Directive to undertake "an extensive examination of the personal circumstances…" necessitates a balancing of the relevant factors counting for and against the issuing of such a card. It would be contrary to Community law principles to base refusal solely on the fact that a person is an overstayer who falls foul, for example of para 295D(i): see by analogy Case C-459/99 MRAX v Belgian State  ECR I-6591).
3. Assessment of a person's individual circumstances done by reference to Article 8 of the ECHR, can form part (even a large part) of the requisite "extensive examination", since: what matters is that there is a balanced consideration in the round. But it must be related to the exercise of reg 17(4) discretion: see MO (reg 17(4) EEA Regs) Iraq  UKAIT 00061. .
4. Regulation 17 is subject to the "public policy" proviso in reg 20(1): see reg 17(8). If (but only if) the respondent invokes reg 20(1) can that constitute a proper basis for refusing to issue a residence card, irrespective of the position under reg 17(4).
The Applicable Law
"Regulation 6 (Qualified person)
(1) In these Regulations, "qualified person" means a person who is an EEA national and in the United Kingdom as—
(a) a jobseeker;
(b) a worker;
(c) a self-employed person;
(d) a self-sufficient person; or
(e) a student.
Regulation 8 (Extended family member)
(1) In these Regulations "extended family member" means a person who is not a family member of an EEA national under regulation 7(1)(a), (b) or (c) and who satisfies the conditions in paragraph (2), (3), (4) or (5).
(5) A person satisfies the condition in this paragraph if the person is the partner of an EEA national (other than the civil partner) and can prove to the decision maker that he is in a durable relationship with the EEA national.
Regulation 17 (Issue of residence card)
(4) The Secretary of State may issue a residence card to an extended family member not falling within regulation 7(3) who is not an EEA national on application if—
(a) the relevant EEA national in relation to the extended family member is a qualified person or an EEA national with a permanent right of residence under regulation 15; and
(b) in all the circumstances it appears to the Secretary of State appropriate to issue the residence card.
(5) Where the Secretary of State receives an application under paragraph (4) he shall undertake an extensive examination of the personal circumstances of the applicant and if he refuses the application shall give reasons justifying the refusal unless this is contrary to the interests of national security.
(8) But this regulation is subject to regulation 20(1).
Regulation 20 (Refusal to issue or renew and revocation of residence documentation)
(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.
Regulation 21 (Decisions taken on public policy, public security and public health grounds)
(5) Where a relevant decision is taken on grounds of public policy or public security it shall, in addition to complying with the preceding paragraphs of this regulation, be taken in accordance with the following principles—
(a) the decision must comply with the principle of proportionality;
(b) the decision must be based exclusively on the personal conduct of the person concerned;
(c) the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society;
(d) matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;
(e) a person's previous criminal convictions do not in themselves justify the decision.
(6) Before taking a relevant decision on the grounds of public policy or public security in relation to a person who is resident in the United Kingdom the decision maker must take account of considerations such as the age, state of health, family and economic situation of the person, the person's length of residence in the United Kingdom, the person's social and cultural integration into the United Kingdom and the extent of the person's links with his country of origin."
"Article 3 (Beneficiaries)
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 other family members as defined in point 2 of Article 2 who accompany or join them.
2. Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation facilitate entry and residence of the following persons:
(a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;
(b) the partner with whom the Union citizen has a durable relationship, duly attested.
The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.
Chapter VI: Restrictions on the Right of Entry and the Right of Residence on Grounds of Public Policy, Public Security or Public Health
Article 27 (General principles)
1. Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends.
2. Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.
The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.
3. In order to ascertain whether the person concerned represents a danger for public policy or public security when assessing the registration certificate or, in the absence of a registration system, not later than three months from the date of arrival of the person concerned in its territory or from the date of reporting his/her presence within the territory, provided for in Article 5(5), or when issuing the residence card, the host Member State may, should it consider it essential, require the Member State of origin and, if need be, other Member States to provide information concerning any previous police record the person concerned may have. Such enquiries shall not be made as a matter of routine. The Member State consulted shall give its reply within two months.
4. The Member State which issued the passport or identity card shall allow the holder of the document who has been expelled on grounds of public policy public security or public health from another Member State to re-enter its territory without any formality even if the document is no longer valid or the nationality of the holder is in dispute.
Article 28 (Protection against expulsion)
1. Before taking an expulsion decision on grounds of public policy or public security the host Member State shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health family and economic situation, social and cultural integration, into the host Member State and the extent of his/her links with the country of origin.
2. The host Member State may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on serious grounds of public policy or public security.
3. An expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security as defined by Member States, if they:
(a) have resided in the host Member State for the previous ten years; or
(b) are a minor, except if the expulsion is necessary for the best interests of the child, as provided for in the United Nations Convention on the Rights of the Child of 20 November 1989."
8. Also relevant are recitals 6 and 22-24: Recital 6 states:
"(6) In order to maintain the unity of the family in a broader sense and without prejudice to the prohibition of discrimination on grounds of nationality, the situation of those persons who are not included in the definition of family members under this Directive, and who therefore do not enjoy an automatic right to entry and residence in the host Member State, should be examined by the host Member State on the basis of its own national legislation, in order to decide whether entry and residence could be granted to such persons, taking into account their relationship with the Union citizen or any other circumstances, such as their financial or physical dependence on the Union citizen."
9. Recitals 22-24 state:
"(22) The Treaty allows restrictions to be placed on the right of free movement and residence on grounds of public policy, public security and public heath. In order to ensure a tighter definition of the circumstances and procedural safeguards subject to which Union citizens and their family members may be denied leave to enter or may be expelled, this Directive should replace Council Directive 62/221/EEC of 25 February 1964 on the coordination of special measures concerning the movement and residence of foreign nationals, which are justified on grounds of public policy, public security or public health.
(23) Expulsion of Union citizens and their family members on grounds of public policy or public security is a measure that can seriously harm persons who having availed themselves of the rights and freedoms conferred on them by the Treaty, have become genuinely integrated into the host Member State. The scope of such measures should therefore be limited in accordance with the principle of proportionality to take account of the degree of integration of the persons concerned, the length of their residence in the host Member State, their age, state of health, family and economic situation and the links with their country of origin.
(24) Accordingly, the greater the degree of integration of Union citizens and their family members in the host Member State, the greater the degree of protection against expulsion should be. Only in exceptional circumstances, where there are imperative grounds of public security, should an expulsion measure be taken against Union citizens who have resided for many years in the territory of the host Member State, in particular when they were born and have resided there through their life. In addition, such exceptional circumstances should apply to an expulsion measure taken against minors, in order to protect their links with their family, in accordance with the United Nations Convention on the Rights of the Child, of 20 November 1989."
"Even if a person is in a durable relationship for the purposes of Regulation 8(5) of the 2006 Regulations, and is thus an extended family member, that person is only entitled to a residence card under Regulation 17(4) if, in all the circumstances, it appears to be appropriate to issue the card.
You are considered to be an overstayer.
You therefore have no valid leave at the time this application was made to either enter or remain in the United Kingdom. In the circumstances it is not considered appropriate to issue you with a residence card."
"Even if the appellant's Article 8 rights are engaged, I am nevertheless satisfied that where the respondent is charged with the legitimate aim of maintaining effective than [sic] immigration control that her decision to refuse the appellant's application has been based upon all relevant factors concerning the appellant's circumstances …" [emphasis added]
Renvoi to national law
"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]…"
Yet (save for para 290A whose scope is limited to the "present and settled" requirement) there is no express indication that any provisions within Part 8 of the immigration rules apply to those falling within the 2006 Regulations. (And within the 2006 Regulations themselves, at reg 8(4), the immigration rules are only said to apply to dependent relatives; there is no express indication of such rules applying in relation to persons in a durable relationship).
"When deciding whether it is appropriate in all the circumstances to issue a residence card, we must assess whether refusing the family member would deter the EEA national from exercising his/her Treaty rights or would create an effective obstacle to exercise of Treaty rights. Each case must be assessed on an individual basis but an example of where it might be appropriate to issue a residence card would be if the family member was very elderly or incapacitated. In assessing such cases it would be important to consider whether there were any relatives to care for him/her in the home country".
"5.5.2 Extended family member
Regulation 8 further defines extended family members. In accordance with Regulation 7(3) extended family members are only to be treated as family members for the purposes of the EEA Regulations if they have been issued, as a matter of discretion, with an EEA family permit or a registration certificate or residence card. The EEA Regulations allow for an 'extensive examination of the personal circumstances' of a person applying under these provisions. The following persons are extended family members:
• A relative of an EEA national or of his/her spouse or civil partner who is residing in an EEA state in which the EEA national also resides and is dependant on the EEA national or is a member of his household AND is either accompanying or joining the EEA national OR has joined the EEA national and continues to be dependant or a member of the EEA national's household.
• A relative of an EEA national or his/her spouse or civil partner who strictly requires personal care from the EEA national or his spouse or civil partner on serious health grounds.
• A relative of an EEA national or of his/her spouse or civil partner who would meet the requirements in part 8 of the Immigration Rules (other than those relating to entry clearance) for indefinite leave to enter or remain in the United Kingdom as a dependant relative of the EEA national or his spouse or his civil partner were the EEA national or his spouse or his civil partner a person present and settled in the United Kingdom.
• A person who is the partner of an EEA national (other than a civil partner) who can show that he/she is in a 'durable relationship' with the EEA national. When assessing whether a relationship is durable officers should satisfy themselves fully that the person meets the leave to enter requirements of an unmarried partner as set out in part 8 of the Immigration Rules (other than those relating to entry clearance)."
Extensive examination of personal circumstances
The respondent's treatment of the appellant's case
(a) renvoi to national law
"equally relevant for the purpose of Regulation 8(5) of the 2006 Regulations and the definition 'extended family member' (it was, after all, developed for a similar immigration purpose). In addition, using the same criterion will ensure a parity of terms between unmarried partners seeking to join British citizens or persons settled and residing in the UK and those seeking to join EEA nationals."
In two respects this part of the letter goes too far. One is that it appears (seemingly echoing policy instructions) to treat para 295D as affording the correct definition of the term "durable relationship" so as to require two years living together. But neither the Directive itself nor the 2006 Regulations stipulate any such definition. So as a definition (as distinct from an indication of likely relevant evidence), that may well be incorrect. But we do consider the refusal letter exemplifies the legitimate importance of seeking to align the treatment of unmarried partners of EEA nationals with that of unmarried partners of UK nationals, so as to prevent discrimination on the ground of nationality. Having identified reg 8(5) as bearing a "similar immigration purpose", it was consistent with general principles of Community law (that of non-discrimination on the grounds of nationality in particular) for the respondent to treat the appellant's overstaying as an important relevant factor in deciding that it was "not .. appropriate to issue you with a Residence Card": under para 295D there is a commensurate requirement that an applicant be someone who has a valid leave to enter or remain in the United Kingdom. The second respect in which this part of the letter goes too far is that it views the immigration rules as identifying mandatory requirements. For reasons already set out, that cannot be right: they can at most afford rules of thumb only.
(b) examination of personal circumstances
But we do not think that the respondent fell foul of this principle in the appellant's case. Whilst it is true that the specific statement of reasons accompanying the notice to a person liable to (s.10) removal stated:
"You are specifically considered to be a person who has overstayed, and does not have the right of residence under [the 2006] Regulations".
this statement went on to say "[p]lease refer to the attached reasons for refusal for further details"; and the attached refusal letter plainly does consider the individual's specific circumstances (see para 2). Just as the letter credited the appellant with having shown she was in a durable relationship, so it counted against her that at the date of application (29 December 2005) she did not have valid leave to remain and in this regard it was plainly in the mind of the respondent that by that date the appellant had been an overstayer for over six months (since 13 April 2005), the couple had only been living together since their religious marriage ceremony in December 2004 (para 13): at the date of application, therefore, they had only been in a relationship for some 12 months. Even if the respondent wrongly considered that the criterion contained in the Immigration Rules at para 295D(vi) of two years' living together afforded a definition of the proper meaning of "durable relationship" and wrongly treated that as a mandatory requirement, the fact that the couple's relationship was at this point only 12 months old plainly did not suffice on its own to show it was durable. Further, on the evidence before the respondent the couple clearly had foreknowledge of the appellant's immigration difficulties: by the time they had lived together for two years (December 2006) the appellant's last grant of limited leave had expired over two and half years ago.
The Immigration Judge materially erred in law.
The decision we substitute for his is to dismiss the appellant's appeal.
Senior Immigration Judge Storey