M (Chen parents: source of rights) Ivory Coast
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Blake |
| Judgment Date | 25 May 2010 |
| Neutral Citation | [2010] UKUT 277 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 25 May 2010 |
[2010] UKUT 277 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Mr Justice Blake, PRESIDENT
For the Appellant: P. Deller, Home Office Presenting Officer
For the Respondent: T. Taylor of David Wyld and Co Solicitors
M (Chen parents: source of rights) Ivory Coast
The rights of entry and of residence of parents of EU national children derived by the ECJ in Chen are a matter of EU free movement law. National courts are therefore obliged to recognise them, and national legislation cannot reduce them.
This is an appeal by the ECO (Dubai) from a decision of IJ Grant promulgated on 23 March 2010 when he allowed M's appeal against the ECO's refusal of entry clearance that would permit her to travel to the United Kingdom along with her daughter C born 8 May 1999 who is a French national. At the same time as he allowed M's appeal against this decision, he dismissed other appeals that will be the subject of separate judgments but need to be mentioned in setting the background to the issues in this case. Following previous directions issued in this case the parties will be referred to by initial.
M is the unmarried partner of a British citizen P who is employed by a professional services firm based in London and is presently assigned to that firm's office in Dubai. At some time in the past M had been living in the United Kingdom and had remained beyond a period of leave since 2005. It seems the couple met in the UK and started cohabiting as man and wife in February 2008.
From April 2009 M, P, and C lived together in Dubai. M was also employed by the same firm in their Dubai office. The couple intended to get married but were not free to marry as P was a party to a marriage that had not at that stage been terminated. Divorce proceedings had been instituted.
M was required to undergo a compulsory medical test in connection with a residence permit in Dubai. On or about 14 July 2009 she learned that she was diagnosed positive for HIV. This has had dramatic implications for her continued residence in Dubai. Under local law it was mandatory to refuse a visa, and she was at risk of detention and removal. The household consisting of P, C and M decided to return to the UK where they could live together, M could obtain medical treatment and C could pursue her education at the Lycee Francaise London. The family unit are self sufficient through P's earnings and are all covered by private health insurance.
M accordingly made a number of applications for entry clearance or equivalent documentation relevant to family members of EU nationals, namely:–
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i. on 25 August 2009 for an EC for admission as a fiancÉe of someone settled in the UK;
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ii. on 25 August for entry as the accompanying primary carer of her self sufficient child;
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iii. on 27 August 2009 for an EC as an accompanying relative of a self sufficient EEA national child;
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iv. on 27 August for an EEA family permit to accompany her self sufficient child C and as the unmarried partner of returning UK national P.
Each was refused on the basis that M did not comply with all the requirements of the Immigration Rules. Notices of appeal were lodged against each decision on 23 September 2009.
In the light of her precarious situation in Dubai, M and C felt compelled to return to Cote D'Ivoire of which M is a national on 4 September 2009, pending resolution of her challenge to the refusals. She subsequently provided evidence to the ECO of her status as primary carer of C. P has remained in Dubai for the time being pending the outcome of those challenges.
M and P first sought to challenge the refusals by a judicial review application CO/9395/2009 where shortly after issue she sought interim relief requiring M's admission to the UK. This relief was refused and the judicial review was subsequently adjourned pending the determination of appeals against the various decisions to the then AIT.
The appeals were heard at Taylor House on the 11 March 2010, by IJ Grant sitting as a judge of the First tier Tribunal Immigration and Asylum Chamber, as the AIT had been abolished on 14 February 2010. He decided as follows:
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i. The fiancÉe entry clearance application was dismissed because at the date of the decision P was still married to his former wife and although in August 2009 it was reasonable to anticipate that P would be free to marry within 6 months, this had not transpired and as of March 2010 it was anticipated that his degree absolute would be promulgated in April 2009.
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ii. The application for an EEA family permit was refused because although the IJ found that P had been supplying professional services to and within the EEA, the couple had not lived together as man and wife in another EEA state other than the UK and so could not comply with Regulation 9 (2)(a) of the EEA Regulations 2006 SI 2006 1003 (the Regulations).
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iii. The application for an EEA permit as a family member of her daughter C failed because M was not a dependent of her daughter within the meaning of Regulation 7 (1)(a) and was not residing with C in another EEA state before entry to the UK as required by Regulation 8 (2)(a) of the Regulations.
However on the findings of fact he made, the IJ was satisfied that the principle determined by the ECJ in the case of Chen v SSHD [2005] INLR 1 applied to this case. He concluded at [18]:
“Applying the judgment of the ECJ to the situation before me I find that the decision to deny the appellant's daughter aged 10 an EEA Family Permit as the accompanying non-EEA national mother of an EEA self sufficient child had the effect of denying the daughter her right as an EEA national to exercise freedom of movement within the EEA. I find that the appellant was at the date of the decision the primary carer of her daughter, a fact which was subsequently ratified by the court order of December 2009.”
The Home Office Presenting Officer who appeared for the ECO at this appeal argued that whatever the entitlements generated by the decision of Chen the Immigration Rules applied to regulate entry, in this case paragraph 257C and that rule was in turn subject to mandatory refusal of the application for non disclosure of her previous overstay in the UK pursuant to paragraph 320 (7A). M therefore failed to comply with the Immigration Rules that were applicable to her because she did not comply with the provisions of the 2006 EEA Regulations. The IJ concluded at [19] and [20] that if there was an EU right of entry it could not be restricted by general requirements of the Immigration Rules.
No directions were issued to give effect to the successful appeal. M sought permission to appeal to the Upper Tribunal Immigration and Asylum Chamber in respect of the decisions where the appeals were dismissed. The ECO also sought permission to appeal to UTIAC in the present case.
M's legal representatives were concerned at the apparent delay in the permission to appeal applications being determined, and the failure of the ECO to grant entry clearance to permit M and C to travel together to London where they would be joined by P. A further application for judicial review was lodged in the Upper Tribunal Administrative Appeals Chambers and the solicitors sought transfer of that application together with the proceedings stayed in the Administrative Court to the UTIAC for determination alongside the pending appeals. The second application for judicial review served only to complicate the determination of this appeal and I am satisfied that there was no jurisdiction to issue it in the Upper Tribunal and it has now been remitted to the Administrative Court pending the determination of this appeal.
A direction was given by me that the applications for permission to appeal be placed before an SIJ promptly. On 23 April 2010 SIJ McKee granted permission to appeal in each case.
Following further requests for the judicial review proceedings to be heard in the UTIAC and interim relief granted, the papers were referred to me and I directed that there be a case management hearing on 25 May 2010. SIJ Spencer on the 14 May 2010 set out a timetable for the parties to comment on the grounds of appeal in the respective cases and for a reply to those responses lodged so the Tribunal could identify what the real issues in the case were, whether there was a material error of law in any of the appeals and if so how the consequent appeals would be determined.
The grounds stated that as the appellant came within neither the EEA Regulations nor the Immigration Rules the appeal should have been dismissed and the decision should be reversed. The material parts of the ECO's grounds for application for permission to appeal are as follows:
“In taking this approach the Immigration Judge has clearly misdirected himself. As the case law of Chen doesn't in itself infer a right upon the appellant to leave to enter. For the appellant to succeed as an accompanying non EA national mother of an EEA self-sufficient child she must come within either the EEA Regulations or the Immigration Rules.”
(emphasis supplied).
M's representatives responded to these grounds with further representations to the effect that M did have a right of entry under EU law and that the rest of the grounds were based on a false predicate. Since this contention had been the clear basis of the application, appeal and judicial review and had been the subject of extensive communication s made to this Tribunal, the ECO Dubai, the Treasury Solicitors and the Home Office Presenting Officers' Unit, it was surprising that the ECO's grounds should summarily dispute the point without further explanation. Hitherto no one had suggested that there were no EU...
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