FK (Kenya) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sullivan,Lord Justice Maurice Kay,Lord Justice Lloyd |
| Judgment Date | 26 October 2010 |
| Neutral Citation | [2010] EWCA Civ 1302 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5 / 2009 / 1354 |
| Date | 26 October 2010 |
[2010] EWCA Civ 1302
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No: IA/17720/2008]
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Maurice Kay
Lord Justice Lloyd
and
Lord Justice Sullivan
Case No: C5 / 2009 / 1354
Ms Nwamaka Nnamani (instructed by OJN Solicitors) appeared on behalf of the Appellant.
Ms Julie Anderson (instructed by the Treasury Solicitors) appeared on behalf of the Respondent.
Introduction
This is an appeal against a determination promulgated on 7 May 2009 from Immigration Judge Grant's determination dismissing the appellant's appeals under regulation 26 of the Immigration (European Economic Area) Regulations 2006 ("the Regulations") and Article 8 of the European Convention on Human Rights ("the Convention") against the respondent's decision contained in a reasons for refusal letter dated 9 October 2008 ("the decision letter") to refuse his application for a permanent residence card under the Regulations as confirmation of his right to reside in the United Kingdom.
The Immigration Judge considered the appellant's appeals under both the Regulations and Article 8 because the decision letter said that if the appellant appealed against the refusal he did not have to leave the United Kingdom while his appeal was in progress, but then went on to say:
"However if your appeal is unsuccessful and you do not leave the United Kingdom voluntarily you will be removed to Kenya."
The appellant appealed under the Regulations. In his grounds of appeal to the AIT he said that although the respondent's decision was not a removal decision, it had the same effect as such a decision and was thus a "disproportionate interference with his family right".
Factual background
The appellant is a citizen of Kenya, born on 8 January 1987. In 1990 when he was three and a half he left Kenya with his mother to live in South Africa. There she married a Mr Schumacher, a Swiss national. She acquired Swiss nationality by marriage in 1991. The appellant came to the United Kingdom in 2000 with his mother when he was 13 years old. At that time his mother was married to Mr Gysler, another Swiss national. The marriage to Mr Gysler ended in 2003, and towards the end of 2003 the appellant's mother began to live with a Mr Simmons, a United Kingdom national. The appellant's mother and Mr Simmons have a daughter, born on 29 November 2006. At the time of the appeal before Immigration Judge Grant, they were expecting another child. That child has since been born.
The application which was refused by the respondent was made by the appellant's mother on 8 February 2008. She applied under the Regulations for a residence permit for herself with the appellant as her dependent even though he was just over 21 years old at the time. The relevant extracts from the Regulations are set out in paragraph 5 of the determination. The appellant's mother had not worked nor had she been self employed in the United Kingdom. She applied for a residence permit on the basis that she was a "self sufficient person".
Regulation 4(1)(c) defines a self-sufficient person for the purposes of the Regulations as someone who has sufficient resources not to become a burden on the United Kingdom social assistance system and "comprehensive sickness insurance cover in the United Kingdom". The basis of the appellant's claim under the Regulations was that he was a family member of an EEA national (his mother) because although he was over 21 he was her son and he was a dependent of hers and he was a person "who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years" (see Regulation 15(1)(b)).
Where a family member's right to reside is dependent on their being a family member of the "self sufficient person", the requirement for that person to have comprehensive sickness insurance cover in the United Kingdom "shall only be satisfied if he and his family members have such cover" (see Regulation 4(2)(b)).
In summary, in order for her application under the Regulations as a self-sufficient person to succeed with the appellant as her dependent, the appellant's mother had to show that she had comprehensive sickness insurance cover for herself and the appellant. The respondent twice requested evidence that the appellant's mother had been exercising EU Treaty rights for five years and had held comprehensive sickness insurance cover for that period. No such evidence was provided to the respondent.
The appellant's mother's application was refused. She did not appeal but the appellant did. As I have mentioned, in addition to the contention that he was entitled to a residence permit under the Regulations, the appellant also raised the question of interference with his Article 8 rights.
His appeal was heard by Immigration Judge Froom and dismissed in a determination dated 24 November 2008. Reconsideration was ordered by Pitchford J (as he then was) and that reconsideration was carried out by Immigration Judge Grant in the determination under challenge in this appeal.
The determination
It was agreed that since the salient facts were not in dispute, the redetermination could be dealt with by legal submissions only. The only additions to the documents that had been before Immigration Judge Froom were a copy of the decision of the Grand Chamber of the European Court of Human Rights in Mazlov v Austria 1638/03 [2008] ECHR 546 and a recent health insurance policy for the appellant and his mother. The policy commenced on 16 February 2009, some two months before the hearing took place on 24 April 2009.
Immigration Judge Grant's determination is lengthy and careful. In summary the Immigration Judge concluded that:
(i) The appeal under the Regulations failed:
"11. I find the appellant is not entitled to permanent residence under regulation 15. I find he has not complied with residence conditions for five years because his sponsor has not exercised her Treaty Rights in the United Kingdom in that time. I find the sponsor is not qualified as a self sufficient person. I find the sponsor did not have comprehensive sickness insurance."
(ii) The decision of the ECJ in MRAX (Free Movement of Persons) [2002] ECR 1–5691 (ECJ C-459/99) could be distinguished because:
"39. Unlike the parties affected in MRAX this is not a case where the appellant has lived with a family member exercising Treaty Rights in the United Kingdom and, but for a formality he would be entitled to a residence permit. His mother was not exercising Treaty Rights for the preceding five years on any basis. In MRAX the qualified person was always exercising treaty Rights and the issue in the appeal concerned the issue of a residence permit to a spouse who had entered the EU country unlawfully in breach of the requirements of the Directive. In this appeal the appellant's sponsor was not herself exercising Treaty Rights or herself entitled to permanent residence as a self-sufficient person because she did not have comprehensive sickness insurance cover in the UK. Nor did the appellant."
(iii) Applying the decision in Kugathas v SSHD [2003] EWCA Civ 31, the appellant as an adult male had not established that there would be a breach of his rights under Article 8 to respect for his family life because he had not shown any ties with his mother and stepfather beyond the emotional ties which normally exist between adult relatives (paragraph 19).
(iv) While the removal of the appellant would be an interference with his right to respect for his private life under Article 8, such a decision would be "entirely proportionate to the aims to be achieved on the facts as I have found them" (paragraph 42).
Pausing there, when considering the merits of the appellant's appeal on...
To continue reading
Request your trial
-
Ahmad v Secretary of State for the Home Department
...EWCA Civ 1275, [2008] 1 CMLR 27 at [12]–[14]; Lekpo-Bozua v Hackney LBC [2010] EWCA Civ 909; [2010] HLR at [15]; Kamau (Kenya) [2010] EWCA Civ 1302 at [15]; Abdirahnam v Secretary of State for Work and Pensions [2008] 1 WLR 254; Okafor v SSHD [2011] 1 WLR 26 As Sullivan LJ held in Kama......
-
VP CJSA 3172 2012
...by virtue of any rights for treatment under the National Health Service: FK (Kenya) v Secretary of State for the Home Department [2010] EWCA Civ 1302. The European Commission’s Press Release IP/12/417 of 26 April 2012 was contrary to Article 7(1)(b) of the Citizenship Directive and provided......
-
Amirteymour and Others (EEA appeals; human rights)
...apply to these appeals. 66 As noted above, we received written submissions on the decision of the Court of Appeal in FK (Kenya) [2010] EWCA Civ 1302. We do not, however, consider that it is of much assistance. As Mr Biggs submitted, it appears that JM (Liberia) was not cited to the Court of......
-
Upper Tribunal (Immigration and asylum chamber), 2011-02-24, [2011] UKUT 121 (IAC) (CHH (Notices Regulations - right of appeal-leave to remain))
...that country. But I remind myself that no decision has been taken to remove the appellant to Jamaica, or anywhere else. In FK (Kenya) [2010] EWCA Civ 1302, Lord Justice Sullivan doubted whether it was appropriate for the Tribunal to consider Article 8 in appeals against the refusal of leave......
-
Demagnetisation of Social Security and Health Care for Migrants to the UK
...2006 Regulations, reg.4(1)(c).114 VP v Se cretary of State for Work and Pens ions (JSA) [2014] UKUT 32 (AAC), at [101].115 [2010] EWCA Civ 1302, at [15].116 Pensionsversicherungstanstalt v Brey (C-140/12).117 Ibid: 61.118 20 06 Regulations, reg.4 (4).119 Brey note 116 above at 64.120 Ibid: ......