Petition Of Adebayo Aina For Judicial Review Of The Secretary Of State's Refusal To Issue A Certificate Of Application
| Jurisdiction | Scotland |
| Judge | Lord Glennie |
| Judgment Date | 2015 |
| Neutral Citation | [2015] CSOH 158 |
| Date | 24 November 2015 |
| Published date | 24 November 2015 |
| Court | Court of Session |
| Docket Number | P1251/14 |
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 158
P1251/14
OPINION OF LORD GLENNIE
In the petition of
ADEBAYO AINA
Petitioner;
for judicial review of the Secretary of State’s refusal to issue a Certificate of Application
Petitioner: Party
Respondent: Gill; Office of the Advocate General
24 November 2015
Introduction
[1] The petitioner is a national of Nigeria. On 14 May 2013 he applied for an EEA residence card on grounds that he is married to a British national: Regulation 17(1) of the Immigration (European Economic Area) Regulations 2006 (2006 No. 1003) (“the EEA Regulations”). He was duly issued with a Certificate of Application (“CoA”) under Regulation 17(3). That CoA acknowledged the application for a residence card and stated that a decision would be made “as soon as we can and, in any event, within the next 6 months”. More importantly, from the point of view of the applicant, the CoA states that that the applicant is entitled to accept offers of employment in the UK whilst the application is under consideration; and it tells potential employers that the fact that the petitioner has shown them a CoA may form part of a statutory defence against any potential liability on their part to pay a civil penalty under section 15 of the Immigration, Asylum and Nationality Act 2006 for employing an illegal migrant worker.
[2] On 17 December 2013 the petitioner’s application for a residence card was refused, the Secretary of State relying on Regulations 9 and 20 of the EEA Regulations. He appealed, unsuccessfully, to the First-tier Tribunal (“FTT”) and from there, successfully, to the Upper Tribunal (“UT”), which held that the FTT (and, by implication, the Secretary of State) had fallen into error. On 8 September 2014 the UT remitted the case back to the Secretary of State for a new decision to be made.
[3] On 8 December 2014, no fresh decision having been forthcoming, the petitioner lodged this petition seeking an order compelling the Secretary of State to make a decision on his application for a residence card. That part of the relief claimed in the petition is now academic since on 12 January 2015 the Secretary of State did make a fresh decision. She again refused the petitioner’s application for a residence card. That decision was appealed, again unsuccessfully, to the FTT and, from there, again successfully, to the UT. The case has again been remitted to the Secretary of State for her to make a fresh decision. No fresh decision has as yet been made.
[4] However, that part of the petition which relates to the Secretary of State’s refusal to issue the CoA remains live. The position so far as concerns that issue is this. A CoA was issued to the petitioner when he first applied for an EEA residence card. But the CoA is, in effect, time limited; on the face of the document it is made clear that after six months it cannot be relied on by a prospective employer as part of a defence against liability to pay a penalty for employing an illegal migrant worker. Its effectiveness expired on 19 November 2013.
[5] In October 2014, after the UT had remitted the case to the Secretary of State for the first time but before a fresh decision on the petitioner’s application for a residence card had been made, the petitioner applied to the Royal Mail for employment as a “Christmas casual”. He avers in the petition that he was offered such a job subject to proof of his right to work in the UK. To this end he applied to the Secretary of State for renewal of his CoA. That application was refused. The petitioner avers that this refusal was unlawful. He also avers that as a result of this refusal he was unable to get the job. He claims damages.
[6] The obligation to issue a CoA turns on a relatively short point of construction of the EEA Regulations and of Directive 2004/38/EC of the European Parliament and the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (“Directive 2004/38”) which the EEA Regulations implemented. But the issue has to be looked at in the context of the EEA Regulations and Directive 2004/38 as a whole and against the particular facts out of which this petition arises. This is in part because the Secretary of State argues that the obligation to issue a CoA is only owed to persons who are in fact entitled to a residence card. If she is right about that then, in order to determine the merits of the petitioner’s claim to be entitled to a CoA, this court must also consider, to some extent at least, the merits of his claim for a residence card. It is therefore necessary to set out the relevant parts of the EEA Regulations and Directive 2004/38 in some detail, along with a fuller account of the circumstances giving rise to this dispute.
[7] Recitals (1), (2) and (3) to Directive 2004/38 emphasise that citizenship of the Union confers on every citizen of the Union a primary and individual right to move and reside freely within the territory of Member States, subject to limitations and conditions laid down in the Treaty establishing the European Community; that free movement of persons constitutes one of the fundamental freedoms of the internal market; and that Union citizenship should be the fundamental status of nationals of the Member States when they exercise their right of free movement and residence. Recital (5) then provides as follows:
“(5) The right of all Union citizens to move and reside freely within the territory of the Member States should, if it is to be exercised under objective conditions of freedom and dignity, be also granted to their family members, irrespective of nationality. …”
The Recitals then go on to set out the policies and aspirations which Directive 2004/38 seeks to implement before emphasising, in Recital (29), that:
“(29) This Directive should not affect more favourable national provisions.”
[8] Article 1 identifies the subject matter of Directive 2004/38. It provides as follows:
“Article – Subject
This Directive lays down:
(a) the conditions governing the exercise of the right of free movement and residence within the territory of the Member States by Union citizens and their family members;
(b) the right of permanent residence in the territory of the Member States for Union citizens and their family members;
(c) the limits placed on the rights set out in (a) and (b) on grounds of public policy, public security or public health.”
It is apparent from article 1(c) that the rights of free movement and residence can only be limited on strictly defined grounds, namely public policy, public security or public health. These grounds, and the limits on the way they may be invoked, are set out in more detail in Chapter VI of Directive 2004/38.
[9] Article 3, entitled “Beneficiaries”, provides that Directive 2004/38 “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 … who accompany or join them” (emphasis added). “Union citizen” is defined in article 2 as meaning any person having the nationality of a Member State. “Family member” is also defined in article 2 and includes a spouse. I have italicised part of the passage quoted from article 3 to emphasise the fact that, as is to be expected with a Directive concerned with the exercise of the right of free movement and residence, Directive 2004/38 is not directly concerned in the issue of how a Member State treats its own nationals and their family members.
[10] Article 5 is entitled “Right of entry”. It provides inter alia as follows:
“Article 5 – Right of entry
1. Without prejudice to the provisions on travel documents applicable to national border controls, Member States shall grant Union citizens leave to enter their territory with a valid identity card or passport and shall grant family members who are not nationals of a Member State leave to enter their territory with a valid passport. …
2. Family members who are not nationals of a Member State shall only be required to have an entry visa in accordance with Regulation (EC) No 539/2001 or, where appropriate, with national law. For the purposes of this Directive, possession of the valid residence card referred to in Article 10 shall exempt such family members from the Visa requirement.”
[11] Chapter III is concerned with the rights of residence. Within that Chapter, articles 6, 7 and 8 are concerned with rights of residence for Union citizens. Under article 6, they have the right of residence on the territory of another Member State for a period of up to three months without any conditions or formalities other than the requirement to hold a valid identity card or passport. Article 7 is concerned with rights of residence for more than three months and provides inter alia as follows:
“Article 7 – Right of residence for more than three months
1. All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:
(a) are workers or self-employed persons in the host Member State; or
(b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or
(c) - are enrolled at a private or public establishment, accredited or
financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and
- have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members not to...
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