Gafri Qudari Balogun v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Justice Elisabeth Laing,Lord Justice Warby,Lord Justice Stuart-Smith |
| Judgment Date | 19 April 2023 |
| Neutral Citation | [2023] EWCA Civ 414 |
| Docket Number | Case No: CA-2022-000321 |
| Court | Court of Appeal (Civil Division) |
[2023] EWCA Civ 414
Lord Justice Stuart-Smith
Lady Justice Elisabeth Laing
and
Lord Justice Warby
Case No: CA-2022-000321
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER
Upper Tribunal Judge Sheridan
EA/05694/2016
Royal Courts of Justice
Strand, London, WC2A 2LL
Zainul Jafferji and Huzefa Broachwalla (instructed by Primus Solicitors) for the Appellant
Julia Smyth (instructed by The Treasury Solicitor) for the Respondent
Hearing date: 14 March 2023
Approved Judgment
This judgment was handed down remotely at 11.00am on 19 April 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
This case concerns rights to reside in the United Kingdom which were conferred by EU law and in particular by Directive 2004/38/EC (‘the Directive’) before 31 December 2020. Specifically, it concerns the impact of divorce and of imprisonment on the rights conferred by EU law on the member of the family of a national of an EU member state (for convenience, ‘an EU national’) who is, himself, not a national of an EU member state (for convenience, ‘a third country national’).
The Appellant (‘A’) appeals against a determination of the Upper Tribunal (Immigration and Asylum) Chamber (‘the UT’) promulgated on 6 January 2022. The UT allowed an appeal by the Secretary of State from a determination of the First-tier Tribunal (Asylum and Immigration Chamber) (‘the F-tT’) promulgated on 6 April 2021. The F-tT had allowed A's appeal from a decision of the Secretary of State dated 19 April 2016 to revoke A's EEA residence card (‘decision 1’).
Paragraph references are to the determinations of the F-tT or of the UT, as the case may be, or if I am referring to an authority, to that authority.
On this appeal, A was represented by Mr Jafferji and Mr Broachwalla. The Secretary of State was represented by Ms Smyth. I thank counsel for their written and oral submissions.
I gave A permission to appeal on the papers. Mr Jafferji indicated in his oral submissions that, in the light of the grant of permission to appeal, A had two grounds of appeal.
i. The UT erred in law in holding that the critical date for the purposes of A's rights in EU law was the date of the divorce decree. It should have held that the critical date was the date when the divorce proceedings were started.
ii. The UT erred in law in holding that A lost his rights in EU law when he was imprisoned.
The Secretary of State applied, out of time, to rely on a Respondent's Notice (‘RN’). The RN reflected arguments on which the Secretary of State had relied in the F-tT and in the UT, but which, the Secretary of State says, the UT did not consider. The Secretary of State relied on two arguments.
i. Even if the decisive date for the purposes of A's rights in EU law was the date when divorce proceedings were initiated (which the Secretary of State does not accept), A did not satisfy the relevant conditions imposed by EU law because he was not a worker while he was in prison. The UT erred in law in holding that A could rely on Orfanopoulos v Land Baden Württemberg (C-482/01) [2005] CMLR 433.
ii. Any right to reside which A might have had before he was imprisoned could not revive on his release.
For the reasons I give in this judgment, I have reached five conclusions.
i. A had to show that he met the conditions of article 7.2 of the Directive immediately before the divorce was finalised.
ii. A ceased to meet the conditions of article 7.2 of the Directive when he was imprisoned, before the divorce was finalised.
iii. A therefore lost the protection of article 7.2 of the Directive when he was imprisoned.
iv. By the time the divorce was finalised, A had no rights which article 13.2 of the Directive could preserve.
v. The UT's approach to the appeal was wrong in law, but the arguments in the RN enable this Court nevertheless to uphold the UT's determination on different grounds and to dismiss A's appeal.
The facts
A is a citizen of Nigeria. In 2009 he married a French citizen, Y, in Ghana. In the tax year 2010–2011, she began working in the United Kingdom. On 13 June 2011 A was issued an EEA residence card which was valid until June 2016. On 20 January 2014 divorce proceedings were initiated. It is not clear from the determinations who initiated the divorce, but the application for permission to appeal to this Court suggested that it was A. The marriage between A and Y ended on 6 March 2015 (the date of the decree absolute).
A had convictions in 2009 and 2011 for offences of dishonesty. On 7 February 2014, he was convicted of conspiracy to defraud. On 29 April 2014, A was sentenced to 27 months' imprisonment, and duly imprisoned. The F-tT found as a fact that A worked, and was also self-employed, before he was imprisoned, and that he worked up to the date of his imprisonment (paragraph 14(i)).
At some point between 1 August 2014 and March 2015, Y left the United Kingdom and so ceased to exercise Treaty rights here. Neither the F-tT nor the UT made a finding about the exact date when Y left. The Secretary of State nevertheless submits on this appeal that it is clear from documentary and other evidence before the F-tT that she did so after the initiation of the divorce proceedings and after A's imprisonment. The Secretary of State relies on a witness statement from HMRC, which was in A's bundle of documents for the F-tT hearing, and which the Secretary of State had served on A in accordance with the F-tT's directions. That statement showed that Y had been working for London City Cleaning between 6 May 2014 and 1 August 2014 (that is, after the commencement of the divorce proceedings and after A's imprisonment). Documents also showed that Y was self-employed during the 2013–2014 tax year. The relevant passages in Y's witness statement tallied with that information.
On 29 May 2014, A was served with a decision to make a deportation order under the Immigration (European Economic Area) Regulations 2006 (‘the 2006 Regulations’). A responded to that decision. The Secretary of State decided to deport him. The Secretary of State made a deportation order on 13 November 2014.
A was released on 13 June 2015, on immigration bail. His bail conditions at all relevant times prevented him from working, as the F-tT found (paragraph 14(ii)). The F-tT also found as a fact that A ‘has not actually worked or been jobseeking, since being released from prison’ (paragraph 13(iv)).
The Secretary of State revoked the EEA deportation decision on 20 April 2016, the day after decision 1. On 11 June 2017 the Secretary of State made a decision to deport A under section 32 of the UK Borders Act 2007. The Secretary of State refused A's human rights claim on 12 June 2017 (‘decision 2’). A also appealed against decision 2. His appeal to the F-tT against decision 2 has been stayed pending the outcome of this appeal.
The determination of the F-tT
A was represented by counsel at the F-tT hearing.
Paragraph 3 records that there were five pages of reasons for decision 1. Decision 1 is in the supplementary bundle for this appeal, but the reasons for it are not. The Secretary of State accepted that Y was exercising Treaty rights in the United Kingdom from the 2010–11 tax year until the 2013–14 tax year. It appears that the Secretary of State's position in those reasons was that A was not a family member with a retained right of residence because he had not provided evidence that, at the date of the divorce, when he was in prison, he was a worker, self-employed person or self-sufficient. The Secretary of State had also decided to cancel the residence card on grounds of public policy and on the ground that A had abused his rights, in the light of his criminal convictions in 2009, 2011 and 2014 (paragraph 4). The Secretary of State had the burden of proof on the justification for revoking the residence card (paragraph 7).
In paragraph 5, the F-tT recorded A's case. He was a ‘worker’ until he went to prison, and had ‘worker status’ throughout his time in prison. He still had ‘worker status’ on his release from prison, or, if not, he was a jobseeker. He therefore had a retained right of residence.
The F-tT summarised the relevant parts of the EEA Regulations. The F-tT again summarised A's case. It referred (in substance) to regulation 6(2A) of the 2006 Regulations. It rejected the Secretary of State's argument that six months was the longest time during which a person could continue to be regarded as a worker when he was not, in fact, working. The F-tT held that regulation 6(2A) only limits reliance on regulation 6(2)(ba) and does not apply generally. A did not rely on regulation 6(2) (ba).
In paragraphs 18–22 the F-tT considered the authorities. It noted that Orfanopoulos (see paragraph 61, below) was decided before the Directive came into force, and that it considered article 39(3) of the EC Treaty and article 9(1) of Council Directive 64/221 EC. The F-tT quoted paragraphs 49–51. A relied on paragraph 50 to say that he was a worker throughout his imprisonment, and that the terms of his immigration bail meant that a ‘reasonable time’ after his release had not yet expired (paragraph 19).
The antiquity of Orfanopoulos was not a reason for ignoring or distinguishing it. It had been treated as good law, in, for example, Carvalho v Secretary of State for the Home Department [2010] EWCA Civ 1406. Onuekwere (see paragraph 70, below) dealt specifically with the acquisition of the right of permanent residence. In paragraph 26 of his Opinion, the Advocate General had distinguished Onuekwere on the ground that Orfanopoulos dealt with a...
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