R (McCollum) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICETURNER |
| Judgment Date | 24 January 2001 |
| Neutral Citation | [2001] EWHC 40 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/569/1999 |
| Date | 24 January 2001 |
[2001] EWHC 40 (Admin)
IN THE HIGH COURT OF JUSTICE
(ADMINISTRATIVE COURT)
Royal Courts of Justice
Strand
London WC2
Mr Justice Turner
CO/569/1999
MISS S HARRISON (instructed by Tyndallwoods, Windsor House, Temple Row, Birmingham B2 5TS) appeared on behalf of the Applicant.
MR S KOVATS (instructed by Treasury Solicitor, Queen Anne's Chambers, 28 Broadway, London SW1H 9JS) appeared on behalf of the Respondent.
The applicant and Mr Renato Lozano are in a long term single sex relationship. The applicant is a citizen both of the United Kingdom and the Republic of Ireland. He wishes Mr Lozano to come to live with him in the United Kingdom, as his spouse or as a member of his family. The respondent has refused permission to Mr Lozano on the grounds that he is not entitled to be treated as ‘spouse’ or a family member. This forms the substance of the present challenge.
From June 1994 until the end of July 1998 Mr Lozano, who is Brazilian by birth, was lawfully in the United Kingdom first as a visitor and secondly as a student. He then returned to his native country. On 28 November of the latter year Mr Lozano returned to the United Kingdom and once more sought leave to enter as a visitor. He was examined by an immigration officer. He was refused entry because the Immigration Officer was not satisfied that the true purpose of the intended entry was as ‘visitor’. Temporary permission was granted, however, pending arrangements being made for Mr Lozano's removal. By letter dated 1 December of the same year, Mr Lozano sought leave to enter “on the basis of a long term relationship with” (the applicant). Both were subsequently interviewed and leave to enter was refused to Mr Lozano on the grounds that leave to enter on this basis was not a purpose covered by the Immigration Rules; see HC 395, Rule 320(1).
In a policy statement which became effective on 13 December 1997, the Secretary of State announced the policy Concessions on Unmarried Partners which covered common law and same sex relationships. So far as is relevant to this case, the requirements which were required to be satisfied under the Concession were satisfied save as to three matters. These were (v) that there would be adequate accommodation for the parties without recourse to public funds (vi) the ability of the couple to maintain themselves without recourse to public funds and (viii) that the applicant, in this case Mr Lozano, held a valid entry clearance for entry in the capacity in which he was seeking to enter the United Kingdom. A paragraph of the policy document, under the cross heading Granting leave to enter, states that
A person seeking leave to enter the United Kingdom as the unmarried partner of a person settled in the United Kingdom, or who is on the same occasion being admitted for settlement, may be admitted for an initial period of twelve months under this concession provided a valid United Kingdom entry clearance for entry in this capacity is produced to the Immigration Officer on arrival.
The position of the Secretary of State, on this application, is clear and straightforward, that is to say that if the only obstacle to the grant of exceptional leave is the absence of entry clearance, it would be unfair to those others who abide by the rules and make proper application, if the requirement were to be waived in Mr Lozano's case. It would encourage others to attempt to jump the queue, if this requirement were not firmly enforced. The resultant delay to Mr Lozano need not be great while the application was processed and no great hardship would accrue to him. Such interference with his private life that the adoption of this procedure would cause can be justified by the need to maintain firm and fair immigration policies.
The arguments advanced in support of the present application can be summarised as follows:
A person who is a co-habitee, is in a long term relationship and is in a same sex relationship is a “member of the family” for the purposes of Article 10(2) of the Council Regulations 1612/68;
The denial of qualifying status as “family member” under Article 7 of Council Regulations 1612/68 is inconsistent with the recognition, in the national law of the United Kingdom, of a same sex relationship which has lasted two years or more as one “akin to marriage”; see Policy document above;
The denial of a right of residence to Mr Lozano interferes with the applicant's rights of residence under Article 39 of the Treaty of Rome since it constitutes an infringement of Article 8 of the ECHR;
The removal of Mr Lozano would constitute an irrational exercise of the discretion vested in the Secretary of State as being inconsistent with respect for his private life.
Article 39 of the Treaty provides for the freedom of movement of workers to be secured within the Community and the abolition of discrimination based on nationality. Council Directive 68/360 provides for the abolition of restrictions on the movement and residence of nationals and of members of their families; Article 1. By Article 3 it is provided that
1. Member States shall allow the persons referred to in Article 1 [nationals and members of their families] to enter their territory simply on production of a valid identity card or passport.
2. No entry visa or equivalent document may be demanded save from members of the family who are not nationals of a member state. Member states shall accord to such persons every facility for obtaining any necessary visas.
Article 7 of Regulation (EEC) 1612/68 (above) provides that
1. A worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from national workers by reason of his nationality …
2. He shall enjoy the same social and tax advantages as national workers.
Article 10 (above) provides that
1. The following shall, irrespective of their nationality, have the right to install themselves with a worker who is a national of a Member State and who is employed in the territory of another Member State:
(a) his spouse and their descendants …
(b) dependant relatives in the ascending line …
2. Member States shall facilitate the admission of any member of the family not coming within the provisions of paragraph 1 if dependant on the worker referred to above or living under his roof in the country whence he comes.
The applicant founds himself in part on the provisions of this Article and contends that it is directly effective, a proposition which is contested by the respondent. In any event, the applicant also contends that Article 39 is directly effective so that if this submission is upheld, he does not need to rely on the provisions of Article 10(2), above.
Attention was also drawn to the provisions of section 7 of the Immigration Act 1988 which provides that a person shall not under the (Immigration Act 1971) require leave to enter or remain in the United Kingdom in any case in which he is entitled to do so by virtue of an enforceable Community right or of any provision made under section 2(2) of the European Communities Act 1972.
Reference was then made to the provisions of the Immigration (European Economic Area) Order 1994 which provides by Article 2 that
‘EEA family permit’ means an entry clearance, issued free of charge, to a family member who wishes to install himself in the United Kingdom with a qualified person.
‘family member’ in relation to an EEA national means-
(a) that national's spouse;
(b) a descendant of that national;
(c) a dependant relative in the ascending line of the EEA national or his spouse.
The origins of these definitions are clearly to be found in the provisions of Article 10(1) which it was the purpose of the Order to implement. In order to be able to take advantage of these provisions, a person who claims to be a family member of a national must, in order that he should be admitted to the United Kingdom, produce on arrival a valid national identity card issued by an EEA State or a valid passport and “if required” proof that he is a family member; see Article 3(2) of the Order. However, a family member who is not an EEA national must also hold, if he is a visa national, an EEA family permit; Article 3(3).
So it was submitted that, giving effect to the right of free movement in the context of United Kingdom law, it is necessary to interpret it in a manner which conforms to contemporary norms of acceptability. It was accepted, however, that for the purposes of the present application, the applicant could not succeed in proving that Mr Lozano was his spouse within the meaning of Article 10(1). But it was submitted that both Community and national law ought to reflect the reality of single sex relationships as being consistent, or compatible, with the concept of marriage. The alternative should be rejected if the result was to produce a situation in which there was discrimination on the grounds of sex. Since there was no definition as to those who could be family members for the purposes of Article 10(2), it was open to Member States in accordance with the principles of subsidiarity to come to their own conclusions and legislate on the topic. When doing so that they should take into account developments within society as it has developed in each of the Member States. One of the problems of this approach is that it ignores the definition of ‘family member’ contained in Article 2 of the EEA Order (above). The riposte to this was that since Article 10(1) allows members of migrant workers’ families to enter the territory of a...
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