New AIT case on requirement for entry clearance for family members of EEA nationals

The Asylum and Immigration Tribunal has held that for persons seeking admission to the United Kingdom as the family member of an EEA national possession of an EEA family permit is not a necessary requirement of the Immigration (European Economic Area) Regulations 2006.

The Immigration (European Economic Area) Regulations 2006 (“the Regulations”) implement Council Directive 2004/38/EC (“the Citizens’ Directive”).  The Regulations came into force on 30 April 2006.   As appeals relating to decisions taken under the Regulations come before the Asylum and Immigration Tribunal a body of case law relating both to the Directive and to the Regulations is developing. 

Rights of free movement within the territory of the Member States of the European Economic Area (“the EEA”) for EEA nationals and their family members are assured by the Citizens’ Directive.   “Family members” are defined at Regulation 7, consistently with Article 2.2 of the Directive.  (The Directive and the Regulations also provide for the free movement of “extended family members” of EEA nationals, although these provisions are irrelevant to the point decided by the Tribunal in this case). 

Regulation 12 (1) provides for the issue by entry clearance officers (“ECOs”) of an “EEA family permit” to a person who is a family member of an EEA national who is residing in the UK in accordance with the Regulations.    In CO (EEA Regulations: family permit) Nigeria [2007] UKAIT 00070 (31-7-2007) the Asylum and Immigration Tribunal considered the ECO in Lagos’s application for reconsideration of CO’s successful appeal against the ECO’s refusal of his application for a family permit.  The ECO had refused CO’s application because he was not satisfied that CO was the son of a Polish national who was exercising his free movement rights in the United Kingdom.

The Immigration Judge who had allowed CO’s appeal had found that he was a family member of the EEA national since he was under the age of 21 and the EEA national was his father.   The ECO asserted that the judge had erred in law in so doing due to CO’s not being able to satisfy Regulation 12 (1) (b) (i)  (i.e. that he was lawfully resident in a EEA State).  Neither could CO meet the alternative requirement in regulation 12 (1) (b) (ii), which effectively required him to satisfy the usual domestic immigration rule (rule 297 of HC 395) for those seeking entry clearance as dependent children of persons settled and remaining in the UK.   This would have required CO to show that his father had had "sole responsibility" for his upbringing or that there were serious and compelling family or other reasons making his exclusion from the UK undesirable.

The Tribunal agreed that the Immigration Judge had been wrong to allow CO’s appeal – it stated that it appeared that the Judge had not even considered regulation 12.  It therefore substituted a decision dismissing CO’s appeal against the ECO’s decision. 

(Despite the Tribunal’s having therefore decided the appeal without reference to the substance of the ECO’s arguments  – it is interesting to consider whether the ECO’s grounds in support of his application for reconsideration had merit in any event.  The European Court of Justice’s judgment in Jia v Migrationsverket  (C-105) (9-1-2007) ("Jia") decided that the grant of a residence permit to a non-EEA national who was a family member of an EEA national who had exercised the right to free movement was not conditional upon that family member having previously been lawfully resident in another member state.   So the requirement of Regulation 12 (1) (b) (i) that the family member seeking a family permit must be lawfully resident in an EEA state – would appear to conflict with the judgment in Jia). 

However the Tribunal noted that in fact the appellant had not needed to apply for a family permit in order to be admitted to the UK as the family member of an EEA national.  

This was because while Regulation 11 (2) (a) and (b) required immigration officers to admit a person to the UK subject to his or her producing a valid passport and an EEA family permit – the Regulations did not state that those who did not produce an EEA family permit would be refused admission.  Moreover Regulation 11 (4) (b) required the immigration officer from whom admission was sought to give the person concerned “every reasonable opportunity” to prove by other means (i.e. other than by the production of the EEA family permit) that he is:

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

Since the Immigration Judge had found that CO was indeed the son of an EEA national who was exercising his rights conferred by the Treaty establishing the European Community it followed that CO had established a right to be admitted to the UK.  That right was conferred by the Citizen’s Directive upon family members of EEA nationals and it was reflected in the Regulations.

The Tribunal concluded that applying for an EEA family permit as envisaged by Regulation 12 was entirely a creation of UK law – and had nothing to do with the rights conferred by the Citizens’ Directive.  The procedure was therefore “to an extent optional” for those seeking admission to the UK as the family members of EEA nationals. 

The Tribunal was however careful to point out that possession of a family permit did of course demonstrate a person’s entitlement to admission to the UK (barring a change in his or her circumstances since its being issued or some other reason “why the entry clearance should not be honoured” ).  To this advantage in making the application for a family permit should perhaps be added the fact that if admission to the UK were to be refused by an Immigration Officer – while the Regulations (at Regulations 26 and 27) confer a right of appeal against any decision to refuse admission it is only holders of family permits who are entitled to exercise that right from within the UK. 

The Tribunal went on to stress that CO was not, as the family member of an EEA national, a person to whom the Immigration Rules applied.  It quoted Rule 5, which provides:

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.

From this it follows that any application for leave to enter the UK made by the family member of an EEA national is not to be refused as a visa national not in possession of entry clearance. Although this is not spelt out by the Tribunal in its determination it would also appear from the Tribunal’s reasoning that CO’s not having a family permit is not a reason for any carrier bringing him to the UK to be charged under the carriers’ liability provisions of section 40 of the Immigration and Asylum Act 1999.  Since the Immigration Rules do not apply to him he is not subject to the visa regime to which he would be subject were he not the family member of an EEA national.  The Tribunal is clearly aware of the procedural difficulties facing CO in exercising his right to be with his father as can be seen from its remark:

"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."

In any event the case is a welcome recognition of the freestanding right of family members of EEA nationals to be admitted to the UK without having to satisfy the requirements of Regulation 12.   That right is implemented in UK domestic legislation by Regulation 11. 

Gherson  has experience in providing quality legal advice and representation to advise on the substantive case of whether an EEA national and his/her family might have  entitlement to enter or remain in the UK under the EEA  Regulations and/or UK Immigration Rules.