EEA Regs - applications not to be decided on the basis of immigration rules
In YB (EEA reg 17(4) - proper approach) Ivory Coast [2008] UKAIT 00062 (13-08-2008) the Asylum and Immigration Tribunal considered the proper approach to be taken by the UKBA in considering an application for a residence card made by an extended family member of “an EEA national” (an national of one of the countries comprising the European Economic Area).
The Tribunal in this case has indicated how and when the United Kingdom’s immigration rules are relevant to the proper determination of applications for residence cards made by extended family members of EEA nationals.
The Appellant YB, a national of the Cote D’Ivoire, had been 14 years old when she had come to the UK in September of 2000. She applied for asylum. Her application was refused but under the policy applicable at the time she was granted exceptional leave to remain until her 18th birthday, a period of 3 years and 8 months. (There has always been a policy of this kind applicable to unaccompanied children who apply for and are refused asylum, and for whom there are not adequate reception and accommodation arrangements; although when exceptional leave to remain was got rid of the leave granted was changed to Discretionary Leave. In April of 2007 the policy was amended so that children are now granted leave to remain not until their 18th birthday but only until they are 17 ½ years old).
YB applied for further leave to remain when her exceptional leave expired. This was refused and her appeal against that refusal was dismissed. In December of 2005 she applied to the Secretary of State for a residence document as the dependant of a French national who was exercising his rights of free movement in the UK. The Secretary of State didn’t get round to deciding the application until September of 2007, when it fell to be considered under the Immigration (European Economic Area Regulations) 2006 (the “EEA Regulations”).
The EEA Regulations are the UK’s implementation of the “Citizen’s Directive” (2004/38/EC), which sets out the free movement rights of “Citizens of the European Union”, and those of their family members.
(Citizens of the European Union are nationals of the Member States of the European Union. To make things confusing though – there is also the “European Economic Area” (the “EEA”) which comprises the countries making up the European Union plus Norway, Iceland, Liechtenstein and Switzerland. The EEA was created by these countries entering into agreements with the EU countries whereby all free movement rights were to be shared by the nationals of all of these countries).
Regulation 8 of the EEA Regulations says who are the “extended family members” of EEA nationals. They include dependant relatives (subject to certain conditions).
By Regulation 8(5) (reflecting Article 3 (2) (b) of the Citizen’s Directive) someone who can prove that he or she is in a “durable relationship” with an EEA national is that EEA national’s “extended family member”.
Under Regulation 17:
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.
The important thing to note about this is that sub regulation (4), by the use of the word “may” indicates that people in durable relationships with EEA nationals are not (as ordinary family members are – by Regulation 17 (1) to (3)) entitled as of right to the issue to them of residence cards. Instead the Secretary of State has discretion either to issue or to refuse to issue them and other extended family members of EEA nationals, with residence cards.
The Secretary of State refused YB’s application for a residence card. She accepted that YB was in a durable relationship but did not consider that it was appropriate to give her a residence card because she did not have leave to remain in the UK. She said her decision didn’t breach YB’s rights protected by Article 8 of the European Convention on Human Rights because she and her EEA national partner could go and live together in the Cote D’Ivoire. YB appealed to the Asylum and Immigration Tribunal.
The Immigration Judge who heard the appeal dismissed it, relying on Regulation 20 (1). This Regulation (which hadn’t been invoked by the Secretary of State), states:
20. —(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.
The Tribunal unhesitatingly said that the Immigration Judge had been wrong to invoke this Regulation. It pointed out the European Community law regards public policy grounds as requiring a restrictive approach. The Tribunal was unquestionably right about this. Where as Regulation 21 (5) (c) indicates a decision is taken on the grounds of public policy:
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;
Needless to say it would be difficult for the Secretary of State to show that someone whose only misdemeanour is overstaying represents this kind of threat to the UK.
The Tribunal said:
“The Secretary of State not having sought to justify the refusal on regulation 20 (1) grounds, it was not open to the Immigration Judge to attempt to supply that justification himself “
But the Tribunal nonetheless dismissed YB’s appeal, stating that the Secretary of State’s decision was in accordance with the law.
Its reasons for doing so are striking and may indeed be controversial.
Basically YB was refused a residence card because she was an overstayer. But there is nothing expressly in Regulation 17 or elsewhere in the regulations to indicate that a failure to by an applicant for a residence card to comply with the immigration rules would lead to the refusal of his or her application. And rule 5 of the immigration rules expressly states that the rules do not apply to people entitled under the EEA Regulations to enter or remain in the UK.
In the Tribunal’s view the Secretary of State was entitled to take account of the fact of YB’s having overstayed because of the provisions of Article 3 (2) of the Citizens’ Directive. Article 3 states:
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.
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 for 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.
In the Tribunal’s view the Secretary of State’s reliance on the fact of YB’s having overstayed to explain the exercise of her discretion against YB was justified because of the words “in accordance with its national legislation” in Article 3 (2). The discretion given to the Secretary of State in regulation 17 (4) meant entitled her to refuse applications like YB on this basis.
But – the Tribunal was careful to make clear that applications like YB’s could not simply be refused because the applicant did not meet the requirements of the immigration rules. This was because:
• national law could not and should not be used to define community law concepts like “durable relationships” – and this, as the Tribunal pointed out was exactly what the UKBA’s instruction to its caseworkers attempted to do, in saying that in assessing durable relationships caseworkers should satisfy themselves that the immigration rules requirements for leave to enter as an unmarried partner were met.
• people who receive residence cards get them for a period of 5 years, whereas the comparable (“in country”) immigration rules were for settlement
• if the applications were to be considered solely by reference to the immigration rules this would ignore the important community law principle of proportionality
• Regulation 17 (5) required the Secretary of State to conduct an extensive examination of the applicant’s personal circumstances when such an application was made. This requirement was not compatible with the simple refusal of eth application on the basis that the applicant didn’t meet the comparable requirements of the immigration rules.
The Tribunal also noted that in its judgment in Mouvement contre le racisme, l’antisemitisme et la xenophobie ASBL v Belgium [2002] 3 CMLR 681 (aka “MRAX”) the European Court of Justice had stated that:
“a Member State may neither refuse to issue a residence permit nor issue an order expelling on the sole basis that his visa had expired before he applied for a residence permit”
In the face of its acknowledgement of these principles it is surprising that the Tribunal nonetheless took the view that the Secretary of State had been entitled to refuse YB’s application.
Its decision that she had been so entitled and that her discretion should not have been exercised differently seems to amount simply to a recitation in a more elegant form of the reasons initially given by the Secretary of State.
Gherson's solicitors are highly experienced in dealing with applications by people seeking residence cards or registration certificates under the EEA Regulations.