PB and Others (Goa: EEA discretionary permit; interpretation)
| Jurisdiction | England & Wales |
| Judge | C M G OCKELTON,DEPUTY PRESIDENT |
| Judgment Date | 20 April 2005 |
| Neutral Citation | [2005] UKIAT 82 |
| Court | Immigration Appeals Tribunal |
| Date | 20 April 2005 |
[2005] UKIAT 82
Immigration Appeal Tribunal
Mr C M G Ockelton (Deputy President)
Mrs J A J C Gleeson (Vice President)
Miss K Eshun (Vice President)
For the Appellant: Mr N Ahmed, instructed by Jasvir Jutla & Co
For the Respondent: Mr M Vale, Home Office Presenting Officer
PB and Others (Goa: EEA discretionary permit; interpretation) India
The Appellants are citizens of India. They appeal, with permission, against the determination of an Adjudicator, Mr A G O'Malley, dismissing their appeals against the decision of the Respondent on 8 July 2002 refusing them EEA family permits for residence in the United Kingdom with the sponsor.
The Appellants and the sponsor are all from Goa. We envisage that the principles we set out in this determination will be deployed in the determination of many similar appeals by Goans. Goa, as is well known, was a colony of Portugal. As a result, some Goans have the right to Portuguese citizenship. One of them is the sponsor. We do not know exactly the history of his movements, but he has a Portuguese identity card, issued in Lisbon on 25 May 2001 and giving his place of residence as “Marvila Lisbon”. He subsequently acquired a Portuguese passport, issued on 29 May 2001. He came to the United Kingdom in June and has been working here since 25 June 2001. The present applications were made in Bombay on 23 April 200The applicants at that stage were the present Appellants, who are the son and daughter of the sponsor, both aged thirty-two at the date of the decision and their daughter, aged three; and the sponsor's wife, his unmarried daughter aged twenty-eight and another son aged under eighteen at the time of the application. The three last have subsequently been granted permits. The three Appellants were refused on the ground that the Entry Clearance Officer did not think that they were dependent on the sponsor. The Adjudicator heard oral evidence, which he regarded as lacking in credibility. He too found that the Appellants had failed to establish dependency on the sponsor. The basis of the Appellants' appeal is that they may nevertheless be entitled to the permits they seek.
We have considered the oral and written submissions in this appeal with care. We do not need to set them out. We proceed at once to give our views on the law, including its background and its application.
Regulation (EEC) No 1612/98 of the Council of 15 October 1968 is on the subject of freedom of movement for workers within the Community. Regulation 10 is in the following terms:
“1. The following shall, irrespective of their nationality, have the right to install themselves with a worker who is a national of one Member State and who is employed in the territory of another Member State:
(a) his spouse and their descendants who are under the age of 21 years or are dependants;
(b) dependent relatives in the ascending line of the worker and his spouse.
Member States shall facilitate the admission of any member of the family not coming within the provisions of paragraph 1 if dependent on the worker referred to above or living under his roof in the country whence he comes.
For the purposes of paragraphs 1 and 2, the worker must have available for his family housing considered as normal for national workers in the region where he is employed; this provision, however must not give rise to discrimination between national workers and workers from the other Member States.”
That Article finds its expression in United Kingdom law in the Immigration (European Economic Area) Regulations 2000, as amended. The relevant Regulations are as follows:
“13. Issue of EEA family permit
(1) An entry clearance officer must issue an EEA family permit, free of charge to a person who applies for one if he is a family member of–
(a) a qualified person; or
(b) a person who is not a qualified person, where that person–
(i) will be travelling to the United Kingdom with the person who has made the application within a year of the date of the application; and
(ii) will be a qualified person on arrival in the United Kingdom.
(2) But paragraph (1) does not apply if–
(a) the applicant; or
(b) the person whose family member he is
falls to be excluded from the United Kingdom on grounds of public policy, public security or public health.
10. Dependants and members of the household of EEA nationals
(1) If a person satisfies any of the conditions in paragraph (4), and if in all the circumstances it appears to the decision-maker appropriate to do so, the decision-maker may issue to that person an EEA family permit, a residence permit or a residence document (as the case may be).
(2) Where a permit or document has been issued under paragraph (1), these Regulations apply to the holder of the permit or document as if he were the family member of an EEA national and the permit or document had been issued to him under regulation 13 or 15.
(3) Without prejudice to regulation 22, a decision-maker may revoke (or refuse to renew) a permit or document issued under paragraph (1) if he decides that the holder no longer satisfies any of the conditions in paragraph (4).
(4) The conditions are that the person [is a relative of an EEA national or his spouse and]–
(a) is dependent on the EEA national or his spouse;
(b) is living as part of the EEA national's household outside the United Kingdom; or
(c) was living as part of the EEA national's household before the EEA national came to the United Kingdom.
(5) However, for those purpose ‘EEA national' does not include–
(a) an EEA national who is in the United Kingdom as a self-sufficient person, a retired person or a student;
(b) an EEA national who, when he is in the United Kingdom, will be a person referred to in sub-paragraph (a).”
“ Family...
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