United Kingdom Asylum and Immigration Tribunal

WW (EEA Regs. – civil partnership) Thailand [2009] UKAIT 00014

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 9 February 2009

Date Determination notified: 05 March 2009

Before
SENIOR IMMIGRATION JUDGE P R LANE SENIOR IMMIGRATION JUDGE GILL
Between

WW	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the Appellant: Mr P. Ward, Solicitor, James & Co Solicitors For the Respondent: Ms S. Ong, Senior Home Office Presenting Officer
DETERMINATION AND REASONS

In regulation 10 of the Immigration (European Economic Area) Regulations 2006, "termination" of a civil partnership means formal, not de facto, termination. The length of a civil partnership for the purposes of regulation 10 is determined by reference to the period during which that partnership has formally existed and thus excludes any period during which the parties were in a relationship prior to the formation of the civil partnership under the 2004 Act.

1. What follows is the determination of the Tribunal. The appellant, a citizen of Thailand born on 19 February 1977, was most recently admitted to the United Kingdom on 26 April 2007 as an EEA family member on a family permit valid until 25 October 2007. On 12 June 2007 he applied to the respondent for a residence card as confirmation of a right of residence under European Community law as the civil partner of an EEA national exercising Treaty rights in the United Kingdom. It is common ground that the appellant's civil partner is, in fact, a citizen of Switzerland who, by reason of the EC-Switzerland Agreement on Free Movement of Persons, falls to be treated as an EEA national.
2. On 3 September 2008 the respondent refused the appellant's application. In the accompanying letter setting out the reasons for refusal, the respondent stated that she was not satisfied that the EEA national was currently exercising Treaty rights in the United Kingdom. The respondent's enquiries had disclosed that the EEA national was no longer employed by the company referred to in the application. The appellant appealed against that decision, on the grounds that he was a member of the family of an EEA national and had retained rights of residence in the United Kingdom; and that the appellant's removal would violate article 8 of the ECHR.
3. On 17 November 2008 the appellant's appeal was heard at Taylor House by an Immigration Judge, who dismissed it in a determination promulgated on 24 November. On 11 December 2008 reconsideration of the Immigration Judge's decision was ordered under section 103A of the Nationality, Immigration and Asylum Act 2002, on the application of the appellant.
4. The following facts were found by the Immigration Judge and are not contentious. The appellant and his Swiss national partner commenced their relationship in Thailand shortly after 5 December 1998. The couple cohabited in Thailand and a number of other countries, including Switzerland. In 2001 the appellant's partner sponsored him for studies in the United Kingdom and for around twelve months from February 2002 they lived together at an address in Hove, East Sussex. From February 2003 until August 2007 they lived together in Brighton and, thereafter, Worthing. They separated in April 2008, when the appellant's partner left the United Kingdom for Thailand. According to the appellant's statement of 13 October 2008, he understands that his partner is working in China, Indonesia and other countries in that area.
5. The couple had, however, entered into a formal civil partnership in Brighton on 3 February 2006 under the Civil Partnership Act 2004. In the light of the events just described, however, the appellant instituted proceedings for the dissolution of the civil partnership. At the date of the Immigration Judge hearing the appellant was awaiting an acknowledgement of service from his partner, then said to be in Thailand.
6. It is common ground that, if he is to succeed in his appeal, the appellant must bring himself within the scope of regulation 10 or regulation 15 of the Immigration (European Economic Area) Regulations 2006. Although the grounds of appeal to the Tribunal raised article 8 of the ECHR, the Immigration Judge found against the appellant on that ground. The appellant sought to challenge the Immigration Judge's findings on article 8 but the Senior Immigration Judge who ordered reconsideration found that this ground of appeal was not arguable and Mr Ward did not seek to pursue it at the reconsideration hearing. In any event, we find that the Immigration Judge's analysis and reasoning at paragraphs 38 and 39 of the determination disclose no material error of law. The appellant's article 8 case was based on his private life in the United Kingdom, which consisted of having friends, a home, hobbies and interests, as well as the fact that he is a practising homosexual. The Immigration Judge found that there was no evidence to demonstrate that the appellant's private life could not continue to be carried on in Thailand, from where he could remain in touch with his United Kingdom friends "by modern means of communication". The appellant and his partner had been able to carry on a homosexual relationship in Thailand. The Immigration Judge also noted that the former partner "has now formed a relationship with someone else in Thailand, this being of a same sex nature".
7. The Immigration Judge noted at paragraph 21 of the determination that Mr Ward sought to rely on a letter of 10 July 2002 from the Home Office to Messrs Clifford Chance, in which it was stated that an unmarried partner of an EEA national could rely on the immigration rules relating to the admission etc. of unmarried partners (now paragraph 295A et seq.). The Immigration Judge rejected that submission, on the basis that the appellant could not bring himself within the terms of the rules. The appellant did not seek to challenge this finding in the application for reconsideration and, although Mr Ward referred us to the Clifford Chance letter, he did not seek to rely upon it. In any event, both at the date of the decision appealed in this case and subsequently, the parties were not living together and the partner was not present in the United Kingdom.
8. The relevant provisions of regulation 10 of the 2006 Regulations are as follows:-

"10.-(1) In these Regulations, 'family member who has retained the right of residence' means …a person who satisfies the conditions in paragraph …(5).

…

(5) A person satisfies the conditions in this paragraph if –

(a) he ceased to be a family member of a qualified person on the termination of the marriage or civil partnership of the qualified person;

(b) he was residing in the United Kingdom in accordance with these Regulations at the date of the termination;

(c) he satisfies the condition in paragraph (6); and

(d) either –

(i) prior to the initiation of the proceedings for the termination of the marriage or the civil partnership the marriage or civil partnership had lasted for at least three years and the parties to the marriage or civil partnership had resided in the United Kingdom for at least one year during its duration;

…

(6) The condition in this paragraph is that the person –

(a) is not an EEA national but would, if he were an EEA national, be a worker, a self-employed person or a self-sufficient person under regulation 6…"

9. Mr Ward rightly acknowledged that each of sub-paragraphs (a) to (d) of regulation 10(5) had to be complied with in order for a person to satisfy its conditions. As a matter of ordinary language, a requirement, for example, to do X, Y and Z is a requirement to do X and Y and Z. In this regard, there is nothing remotely problematic with regulation 10(5).
10. Mr Ward also accepted that for the appellant's case to come within regulation 10 depended upon his being able to show that the civil partnership in question had terminated. The Immigration Judge found, at paragraph 25 of his determination, that "The termination of the…civil partnership" meant "not the de facto termination of the civil partnership but the termination of the same by operation of law such as an order for dissolution or the death of [the appellant's partner]. Neither of these matters have been evidenced." Mr Ward criticised this finding. He submitted that, as a matter of interpretation, the reference in regulation 10(5) to the termination of the civil partnership should be construed as a reference to its de facto termination and that, to interpret it as had the Immigration Judge would lead to unsatisfactory states of affairs where formal, legal termination did not take place at all or was delayed, and the EEA national ceased to be a "qualified person" as defined in regulation 6; for example, as here, by leaving the United Kingdom.
11. Like the Immigration Judge, we are unable to accept Mr Ward's submission on this issue. The fact that "termination" in regulation 10(5) means the formal termination of the marriage or civil partnership concerned is put beyond doubt by article 13 of Directive 2004/38/EC, to which the 2006 Regulations were intended to give effect. Article 13.1 of the Directive refers to "divorce, annulment of the Union citizen's marriage or termination of his/her registered partnership" as not affecting the right of residence of his/her family members who are nationals of a Member State. Article 13.2 provides that "divorce, annulment of marriage or termination of the registered partnership referred to in point 2(b) of article 2 shall not entail loss of the right of residence of a Union citizen's family members who are not nationals of a Member State" where certain conditions are satisfied. The first of these is that –

"(a) prior to initiation of the divorce or annulment proceedings or termination of the registered partnership referred to in point 2(b) of Article 2, the marriage or registered partnership has lasted at last three years, including one year in the host Member State."

12. The references in article 13 to divorce and annulment put it beyond doubt that the reference to termination of the marriage in regulation 10(5) means nothing less than divorce or annulment. There can be no rational basis for treating termination of registered partnerships any differently. We do not consider that any difficulties that might be faced by those within the hypothetical class identified by Mr Ward come anywhere near compelling us to depart from the clear wording of the Directive.
13. So far as regulation 10 is concerned, this finding is destructive of the appellant's appeal. The Immigration Judge, nevertheless, held the appellant could not satisfy the requirements of regulation 10(5)(d)(i), in that, prior to the initiation of termination proceedings, the appellant's civil partnership had not lasted for at least three years. Mr Ward accepts that this is so, if what is measured is only the duration of the "formal" civil partnership. However, his submission to the Immigration Judge – and to us – was that regulation 10(5)(d)(i) must be read as relating in the present case to the period during which the appellant and his partner had been living together as partners in the United Kingdom.
14. Mr Ward acknowledged that this submission involves drawing a distinction between, on the one hand, a marriage and, on the other, a civil partnership formed by registration under the 2004 Act. His justification for this stance was that if the provision is not so construed on the particular facts of the appellant's case, the appellant would suffer impermissible discrimination by reason of being a homosexual. Had the appellant been heterosexual and of a different sex from his partner, the couple could, and would, have formalised their relationship by means of marriage, at a far earlier point in their relationship. As the appellant said in paragraph 3 of his statement:-

"It was not legally possible for us to enter into any meaningful form of civil partnership, civil union or civil partnership like a marriage in Thailand, Switzerland or the United Kingdom until December 2005 when civil partnerships were created in the United Kingdom. If we had been able to do so before this date then we would have entered into a civil partnership soon after the year 2000, probably in 2001. We finally entered into a civil partnership together in Brighton on 3 February 2006."

15. Paragraph 3 of the partner's statement is in similar terms. Mr Ward criticised the Immigration Judge's finding on this issue, at paragraph 22 of the determination, where he found that "the Directive is looking towards the present and the future and not the past. Had it intended to embrace the past it could clearly have so specified within any of its preamble or formal Articles but it does not do so." Mr Ward drew our attention to paragraph 6 of Schedule 4 to the 2006 Regulations, which provides that "any period during which a person carried out an activity or was resident in the United Kingdom in accordance with the 2000 Regulations shall be treated as a period during which the person carried out that activity or was resident in the United Kingdom in accordance with these Regulations for the purpose of calculating periods of activity and residence under these Regulations".
16. Although Mr Ward acknowledged that the 2000 Regulations did not recognise civil partnerships and did not enable a person who was in "a durable relationship" with an EEA national to be treated as an "extended family member" – as is now the case with the 2006 Regulations – he relied on paragraph 6 of Schedule 4 in order to demonstrate that the Immigration Judge had been wrong to say what he did in paragraph 22 of the determination. Mr Ward urged us to construe regulation 10(5)(d)(i) in the manner contended for by the appellant in order to eradicate the discrimination which would otherwise arise on the facts of this case. He drew our attention to recital (31) of the Directive, whereby "Member States should implement this Directive without discrimination between the beneficiaries…on grounds such as sex, race, colour, ethnic or social origin, genetic characteristics, religion or beliefs, political or other opinion, membership of an ethnic minority, property, birth, disability, age or sexual orientation".
17. We are not persuaded that regulation 10(5)(d)(i) has to be read in such a way as to encompass not just the period during which a civil partnership within the meaning of the 2004 Act has subsisted between the appellant and his partner but also some earlier period. The inherent practical difficulty in the submission is, in fact, demonstrated in paragraph 3 of the statement, where the appellant speaks of a mutual intention to have entered into a civil partnership "soon after the year 2000, probably in 2001"; whereas his partner says that if "we had been able to do so lawfully prior to this date then we would have done so soon after the year 2000". How is a court or tribunal to decide on the strength of such evidence when the "partnership" actually commenced?
18. Quite apart from this matter, however, we do not consider that the Directive and its Preamble can properly be said to require any such retrospective application. We have no specific information as to whether each of the Member States has broadly similar provision for civil partnerships, such as is contained in the 2004 Act. The fact that this is apparently not the case is, however, indicated by the definition of "family member" in article 2(2), whereby that expression means:-

"(a) the spouse;

(b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State."

19. If, in view of this, recital (31) was intended to have anything like the effect alleged by Mr Ward, one would have expected the Directive to have dealt with the positions of heterosexual and homosexual couples in a radically different way from that actually adopted.
20. Mr Ward claimed to find support in regulation 2 for his submission that one should look at the substance of the relationship as a whole, rather than just the civil partnership. Regulation 2 provides that a "'spouse' does not include a party to a marriage of convenience". However, the fact that the legal partnership of marriage, which might otherwise found a basis for residence rights, is not to do so if it is a sham in no way diminishes the requirement to demonstrate such a legal partnership. In other words, marriage is a necessary but – in the light of regulation 2 – not a sufficient condition for success under regulation 10.
21. Before the Immigration Judge, the appellant sought alternatively to rely on regulation 15(1)(b), which provides:-

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

…

(b) a family member of an EEA national who is not himself an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years."

22. Mr Ward did not pursue the regulation 15 argument at the reconsideration hearing; rightly so, in our view. Despite the terms of paragraph 6 of Schedule 4 to the 2006 Regulations, to which we have already referred, it is clear that the appellant cannot satisfy regulation 15(1)(b) because, at least until 30 April 2006 (when the 2006 Regulations came into force), the appellant was not residing in the United Kingdom in accordance with those Regulations or with the 2000 Regulations, which, as we have seen, did not make provision for persons in the position of the appellant. Although full details of the appellant's immigration history are not before us, it appears that for a significant period the basis of his leave to remain in the United Kingdom was his status as a student. In any event, prior to the advent of the 2006 Regulations, his entitlement to be here did not rest in EEA law upon his relationship with his partner.

Decision

23. The determination of the Immigration Judge does not contain a material error of law and we accordingly order that it shall stand.

Signed

Senior Immigration Judge P R Lane