Ali (Zackaria Muhidin) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Keene,Lord Justice Wall,Lord Justice May |
| Judgment Date | 04 May 2006 |
| Neutral Citation | [2006] EWCA Civ 484 |
| Docket Number | Case No: C5/2005/2205 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 May 2006 |
[2006] EWCA Civ 484
Lord Justice May
Lord Justice Keene and
Lord Justice Wall
Case No: C5/2005/2205
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND
IMMIGRATION TRIBUNAL
Miss J Grimmett, Immigration Judge
CC/27423/2003
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr B Bedford (instructed by Sulton Lloyd Solicitors) for the Appellant
Mr T Eicke (instructed by Treasury Solicitor) for the Respondent
This appeal is concerned with rights of residence in the United Kingdom arising as a result of the law of the European Community, including the domestic regulations which seek to embody that law. It is an appeal from an Immigration Judge, who on 26 August 2005 dismissed an appeal by Mr Ali from a refusal by the Secretary of State of his asylum application. Insofar as that appeal concerned rights of asylum, it is no longer open to challenge, since permission to appeal on those aspects was refused by Brooke LJ and that application for permission has not been renewed. However, the Immigration Judge also dealt with claims that the appellant had rights of residence in this country under European law and also that to remove him would breach his rights under Article 8 of the European Convention on Human Rights. The appellant has permission to appeal on grounds relating to those issues.
He is a Somali national who arrived in the United Kingdom in December 2002 and claimed asylum. A year later he claimed asylum a second time for himself and also for a dependent son born in 1999. There were a considerable number of factual disputes before the Immigration Judge, who for entirely understandable reasons found that she could not accept many of the appellant's assertions in his evidence. She did accept that a woman called Mrs Nasra Abdi was a Dutch citizen but she did not accept that Mrs Abdi and the appellant were married. The judge accepted that the appellant's son born in 1999, called Yasir, was a Dutch national, as were three others amongst Mrs Abdi's children, who were not the appellant's children. It was also accepted that the appellant might be the father of two other children born in the United Kingdom to Mrs Abdi. But, while the judge found that there was a family relationship between Mrs Abdi and the appellant, she was not satisfied that they were living together.
It was contended before the judge that Mrs Abdi was a "worker" within the meaning of Article 39 of the European Community Treaty. That was rejected by the judge, who did not accept Mrs Abdi's assertion that she had looked for work at hotels when she arrived in this country in November 2000. The facts as found were that she had never been in employment in the United Kingdom between that date and the appeal hearing which continued into August 2005, a period of nearly five years. She had been five months pregnant on arrival in this country and also had four children with her. She had never been to a Job Centre to look for work and was not in receipt of Job Seekers Allowance. Although she claimed that she would start looking for work when the children went back to school in September, the judge did not accept this. The judge noted that, since the appellant was not entitled to work in this country, there was no reason why Mrs Abdi could not look for work immediately. It was found that Mrs Abdi had never looked for any work. The judge also found that Mrs Abdi was not a recipient of services in the United Kingdom, since she had never paid for services here.
Most of the children were in education in this country, including those who were Dutch nationals, one of whom was the appellant's son. But the judge held that this did not give the appellant a right of residence in the United Kingdom, nor did the children have such a right in order to receive education for which they were not paying. As for Article 8, it was held that there were no insurmountable obstacles to the appellant, Mrs Abdi and the children living together in Somalia or in Holland.
The legal context for this appeal is to be found in the European Community Treaty, Articles 18 and 39, Council Directives EEC 73/148, 90/364, 90/365, and 93/96 and the Immigration (European Economic Area) Regulations 2000 ("the 2000 Regulations") . The last-named Regulations seek to give effect in this country to the relevant provisions of European Community law on this topic. Article 18 of the Treaty was introduced by the Maastricht Treaty (the Treaty on European Union) in 1992 and was originally numbered Article 8a. It provides, insofar as material for present purposes:
"1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.
2. If action by the Community should prove necessary to attain this objective and this Treaty has not provided the necessary powers, the Council may adopt provisions with a view to facilitating the exercise of the rights referred to in paragraph 1. The Council shall act in accordance with the procedure referred to in Article 251."
Article 39 of the Treaty deals with freedom of movement for workers within the Community. Directive EEC 73/148 provides that recipients of services are entitled to go to another state for those services: Article 1(1) (b) . Directives 90/364 and 90/365, both dated 28 June 1990, deal with rights of residence. The latter requires member states to grant the right of residence to nationals of other member states (and to certain members of their families) who have been employees or self-employed but who have retired or otherwise ceased their occupational activity, provided that their pension or other benefits are
"of an amount sufficient to avoid becoming a burden on the social security system of the host Member State during their period of residence and provided they are covered by sickness insurance in respect of all risks in the host Member State." (Article 1(1) )
Directive 90/364 requires member states to grant the right of residence to such nationals "who do not enjoy this right under other provisions of Community law and to members of their families", provided that they themselves and the members of their families are covered by sickness insurance in respect of all risks in the host Member State and have sufficient resources to avoid becoming a burden on the social assistance system of the host Member State during their period of residence: Article 1(1) .
Directive EEC 93/96 creates by Article 1 a right under certain conditions to reside in another member state for the purpose of following a vocational training course. One of those conditions is that the student gives an assurance that he has sufficient resources to avoid becoming a burden on the social assistance system of the host state. Another condition is that he is covered by sickness insurance in respect of all risks.
The 2000 Regulations confine the right of residence to "qualified persons" and their family members: Regulation 14(1) and (2) . "Qualified person" is defined by Regulation 5(1) as an EEC national in the United Kingdom who is in one of a number of descriptive categories. These include (a) "a worker"; (d) "a recipient of services"; (e) "a self-sufficient person"; and (g) "a student". A worker is defined merely by reference to Article 39 of the Treaty, and "a recipient of services" only as "a person who receives, or seeks to receive, services within the meaning of Article 50"; see Regulation 3(1) (a) (d) . But separate and detailed definitions are provided of "self-sufficient person" and "student": see Regulation 3(1) (e) (g) .
"Family member" is defined in Regulation 6. In general, it covers the qualified person's spouse, descendants of that person or his spouse who are under 21 or their dependants: and dependent relatives in ascending line of the qualified person or of his spouse: see Regulation 6(4) .
The first ground of appeal for which permission has been given concerns the judge's finding that the appellant and Mrs Abdi were not married. It is argued that the judge misdirected herself as to the test for so deciding and that the standard of proof required should only be that of a serious possibility or a reasonable likelihood. The judge expressly decided this issue on the balance of probabilities, as can been seen from paragraph 28 of the decision. Mr Bedford, who appears for the appellant, then contends that if one applies the test of serious possibility or reasonable likelihood, it was and would be irrational to conclude that these two persons were not married. Some reliance is placed on the fact that, in asylum cases and cases involving Articles 2 or 3 of the ECHR, the risk to the claimant only has to be established to the extent of showing a reasonable likelihood of persecution or treatment amounting to a breach of one of those Articles: R v. Secretary of State for the Home Department, ex parte Sivakumaran [1988] AC 958. However, Mr Bedford was unable to point to any authority holding that a similar standard of proof should apply when determining issues of status relevant to a right of residence conferred by European law or English domestic law.
I can see no basis on which it could be said that the judge was wrong to apply the normal civil standard of proof. There is, as already indicated, no authority to that effect, and it is quite unjustified in principle. There is no justification for applying the lower standard of proof applicable in asylum and...
To continue reading
Request your trial
-
Error of Law Decision by Upper Tribunal Judge P Lane: [Upper Tribunal]
...Regulations during the period when the first appellant still had lawful permission to work. The decision drew on W (China), Ali v SSHD [2006] EWCA Civ 484 and several AIT cases, most notably MA and others. Citing in full [42]-[46] and [48] of the latter, the Tribunal commented: “42. We agr......
-
Abdirahman v Leicester City Council
...v Secretary of State for the Home Department ex parte Vitale [1996] All ER (EC) 461, Ali v Secretary of State for the Home Department [2006] EWCA Civ 484 (at paragraphs 21–22), and W (China) v Secretary of State for the Home Department [2006] EWCA Civ 1494, paragraph 34 It is true that r......
-
Abdirahman and Ullusow v Secretary of State for Work and Pensions [2007] EWCA Civ 657 CIS 3573 2005
...v Secretary of State for the Home Department ex parte Vitale [1996] All ER (EC) 461, Ali v Secretary of State for the Home Department [2006] EWCA Civ 484 (at [21]–[22]), and W (China) v Secretary of State for the Home Department [2006] EWCA Civ 1494, at 34. It is true that reference was mad......
-
Abdirahman v Secretary of State for Work and Pensions [2007] EWCA Civ 657 CH 2484 2005
...v Secretary of State for the Home Department ex parte Vitale [1996] All ER (EC) 461, Ali v Secretary of State for the Home Department [2006] EWCA Civ 484 (at [21]–[22]), and W (China) v Secretary of State for the Home Department [2006] EWCA Civ 1494, at 34. It is true that reference was mad......
-
A tale of two citizens: The Brey-Dano proportionality gap in UK courts and tribunals
...to elect not to engage withthe issue of proportionality at all.14. ibid [30].15. Ali v Secretary of State for the Home Department [2006] EWCA Civ 484, [2006] 5 WLUK 40.16. ibid [22].17. Baumbast (n.11).18. C- 200/02 Kunqian Catherine Zhu and Man Lavette Chen v Secretary of State for the Hom......