EEA Residence Card: successful appeal by same-sex partner

Gherson and Co. recently acted for an applicant in a successful appeal against refusal of a residence card as an extended family member of a European Economic Area (EEA) national. Alan Briddock was counsel in the case, instructed by Kathryn Bradbury of Gherson and Co.

As part of the effort to enable and enforce the principle of free movement throughout the EEA for workers who are nationals of the EEA, European Community Law requires workers to have the right to be joined in the UK by their family members and ‘beneficiaries’. The term beneficiaries encompasses, as in this case, partners and same sex partners in a ‘durable relationship’ with the worker. The meaning of this phrase causes many disputes but was not at issue in the instant case. A Residence Card is issued to beneficiaries as confirmation of their rights to reside in the UK under European Community Law.

Ms *, who is not herself an EEA national, applied to the Home Office on the basis of her same sex partnership with an EEA national for a Residence Card as confirmation of her right to residence under European Community Law. The Home Office refused, stating as their only reason that, even if the applicant was in a durable same sex relationship for the purpose of the Immigration (EEA) Regulations 2006, it did not ‘appear appropriate’ to issue her a Residence card given that she did not at the time of the application have valid leave to remain in the United Kingdom. 

It appears that this response was the result of an instruction to caseworkers which was intended to have blanket application: this was confirmed by a Home Office representative in another case (unreported, March 2007) .

Whilst, under the Immigration (EEA) Regulations 2006 the Home Office has discretion to issue a Residence Card if, in all circumstances, it appears appropriate to do so, unlawful residence in the UK is not specifically provided for as a permitted basis for refusal. However, the Home Office is under a duty, under the Immigration (EEA) Regulations 2006, to undertake an ‘extensive examination of the personal circumstances of the applicant’ and, if the applicant is refused, to give reasons justifying the refusal unless this is contrary to the interests of national security’.

Ms * appealed. Important among the facts of her case were that she had made every effort to remedy her situation, including seeking help from three Members of Parliament (MPs), but had been let down, including by previous representatives.

At her appeal the Home Office did not dispute that she was in a durable relationship. Ms * had entered the UK as a student. While she still had leave to be in the UK, she applied for Indefinite Leave to Remain (ILR). When that was refused she had lodged an appeal. Although she had been in touch with her previous representatives at the time when her appeal was heard, she had not been made aware of her appeal hearing and had not therefore attended it.

The immigration judge accepted that she had made every effort to obtain from her then legal representatives and the Home Office further information regarding the progress and outcome of her application and the then state of her leave to remain in the United Kingdom. He accepted that once she obtained proper legal advice and representation, she found out what had happened to that application and then made her present application. The judge felt it significant that her representatives made the Home Office aware of her history of making every effort to find out her immigration status and resolve it, in time for the Home Office to make its decision.

The immigration judge found that there was no evidence to suggest that the Home Office considered or otherwise took into account the various issues raised by Ms * about her immigration history in the United Kingdom, or her personal circumstances more generally.

The immigration judge concluded that the Secretary of State for the Home Office had

‘failed to demonstrate giving reasons for his refusal, any or any extensive examination of the appellant’s personal circumstances before refusing her application. To merely assert that the appellant had no valid leave to remain in the UK at the time of her application and to fail to provide particulars or any or any other issue considered by him, does not, in my judgement, meet the requirements of, among others, Regulations 8, 17, 20 and 21 of the Immigration (European Economic Area) Regulations, 2006.’

The immigration judge found that Ms * did not learn of the progress and outcome of her original appeal until she instructed Gherson and Co. in January 2006. Following instructing Gherson and Co. she made her application for a Residence card on the basis of her relationship with an EEA national exercising Treaty Rights in the United Kingdom. The Home Office did not appear to have considered either of these ‘significant factors’.

The immigration judge held that the Home Office had failed to exercise their discretion ‘properly, or at all’.

In finding that the Home Office had made an error, the immigration judge followed the case of Commission of the European Community v. Kingdom of Belgium (United Kingdom as intervener) C-408/03. In this case the Government of Belgium had made provision for EEA nationals automatically to be given an order to leave Belgian territory if they did not produce the documents required to obtain a Residence permit within a fixed field. The European Court of Justice (ECJ) held that this failed to fulfil obligations under European Community law.

The immigration judge relied on this ECJ case in finding in Ms *’s case that the Home Office policy that all persons, regardless of personal circumstances, were not to be issued with a residence card if they had no valid leave to remain at the date the application was made, breached European Community Law.

We are grateful to our client for giving us permission to reproduce this summary of the case, which has not been reported. However, please be aware that our client has not given us permission to provide further details about the case, which was handled by Kathryn Bradbury of Gherson and Co.

European case law is unclear on the position of people who are not lawfully resident in an EEA state at the point when they acquire eligibility for permanent residence under the European Union law. In the case of MRAX v. Belgium (C-459/99), [2002] ECR-1-6591, the ECJ held that if a person who was not a national of an EEA member State national was capable of proving his identity and his relationship to an EU national, it would be unlawful to turn him back because he did not have a visa for entry. This approach appears to have been enshrined by Regulations 17(2), (3), (4) and (5) of the Immigration (EEEA) Regulations 2006, which require the extensive examination of the personal circumstances of the applicant, reasons to be given with refusal, etc. This is consistent with the case Commission v. Spain, case C157/03 [2005] ECR-1-2911, in which the ECJ said that the right of entry into the territory of a member state derives from the family relationship alone.

However, in the case of Akrich (C-109/01) the ECJ faced a man who had been deported from the UK three times, the last time of which was to Ireland where his wife was exercising Treaty rights. Six months later they returned to the UK. This was the moment when the ECJ might have made some ruling on abuse by individuals of the generous free movement regime, but they did not do so. Instead, the ECJ said that a family member of a union citizen must have resided lawfully in one member state before being able to rely on free movement rights to move to another, even though this did not affect Mr Akrich himself, since he had been lawfully in Ireland. The most recent case is Jia (Case C-1/05), which again did not decide conclusively whether lawfulness of residence should be a condition precedent of grant of a residence card, since Ms Jia was herself lawfully in Sweden when she applied for a long term residence permit. The Court’s answer in that case was to say simply that Community law did not require Member states to make the grant of a residence permit to family members of an EEA national who has exercised his or her right of free movement subject to the condition that those family members had previously been residing lawfully in another member state.

If the case of Ms * is followed, then the Home Office will be required to examine all the personal circumstances of an individual beneficiary prior to making a decision, and, if refusing, to give reasons justifying their refusal, regardless of the basis of  that beneficiary’s stay in the UK.

Georgina Wilson, Gherson and Co.