R (on the application of SS) v Home Secretary
| Jurisdiction | UK Non-devolved |
| Judge | The Hon Mr Justice McCloskey |
| Judgment Date | 23 July 2015 |
| Neutral Citation | [2015] UKUT 462 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 23 July 2015 |
[2015] UKUT 462 (IAC)
Upper Tribunal
Immigration and Asylum Chamber
The Hon Mr Justice McCloskey, President of the Upper Tribunal
Having considered all documents lodged and having heard the parties' respective representatives, Mr A Pipe, of Counsel, instructed by Bhatia Best Solicitors, on behalf of the Applicant and Ms N Candlin, of Counsel, instructed by the Government Legal Department, on behalf of the Respondent, at a hearing at Birmingham Civil justice Centre on 09 June 2015, followed by further written submissions.
R (on the application of SS) v Secretary of State for the Home Department (declaratory orders) IJR
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(i) The Upper Tribunal has a discretion to make a declaration under section 15(1)(d) of the Tribunals, Courts and Enforcement Act 2007. In common with all remedial orders in judicial review proceedings, this lies within the discretion of the Tribunal.
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(ii) In deciding whether to make a declaration the Tribunal should bear in mind the educative and corrective function of judicial review. Furthermore, where a challenge exposes that a public authority has acted unlawfully, a declaration will normally be appropriate in circumstances where a quashing, mandatory or prohibitory order is an inappropriate form of relief.
Judicial Review Decision Notice
(1) This is the formal, written incarnation of the ex tempore judgment pronounced at the conclusion of this substantive judicial review hearing on 09 June 2015 and following consideration of the parties' responses to the Tribunal's invitation to make further submissions.
(2) The Applicant was granted permission to challenge the Secretary of State's decision refusing to issue her with a derivative residence card under regulation 18A of the EEA Regulations 2006. This provides, in material part:
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“ (1) The Secretary of State must issue a person with a derivative residence card on application and on production of –
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(a) a valid identity card issued by an EEA State or a valid passport; and
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(b) proof that the applicant has a derivative right of residence under regulation 15A.
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(2) On receipt of an application under paragraph (1) the Secretary of State must issue the applicant with a certificate of application as soon as possible.”
By regulation 29A(1), the Secretary of State is empowered to accept alternative evidence of identity and nationality “ where the person is unable to obtain or produce the required document due to circumstances beyond his or her control.” In accordance with regulation 15A, a person is entitled to a derivative right to reside in the United Kingdom for as long as such person satisfies the three prescribed criteria, that is to say that he/she –
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(a) is the primary carer of a British citizen; who is
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(b) residing in the United Kingdom; and
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(c) such citizen would be unable to reside in the United Kingdom or in another EEA State if the carer were required to leave.
Two requirements are prescribed for acquisition of the status of “ primary carer”, namely, the person concerned —
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(i) is “ a direct relative or a legal guardian” of the British citizen concerned; and
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(ii) is “ the person who has primary responsibility for that person's care” or “ shares equally [such responsibility] with one other person who is not an exempt person.”
(3) The impugned decision of the Secretary of State, dated 28 November 2013, yields the following analysis:
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(i) The Applicant failed to satisfy the identity card or passport requirement enshrined in regulation 18A(1)(a).
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(ii) Irrespective of this failing, the application –
“ … would still fall for refusal ……… [as] …. there is …. insufficient evidence to show that the British citizen child ……….. would be unable to remain in the United Kingdom/EEA if you were forced to leave. You have not provided evidence as to why the child's father is not in a position to care for the British citizen child if you were forced to leave the United Kingdom ………
Furthermore, to be considered the primary carer we would expect you to provide evidence to show that the child lives with you or spends the majority of her time with you, that you make the day to day decisions in regard to the child's health, education etc and that you are financially responsible for the child.”
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(iii) In summary, it was considered that the Applicant failed to discharge the burden of proof of demonstrating on the balance of probabilities that the statutory requirements were satisfied.
(4) There are four grounds of challenge in total. The first of these (not in the pleaded sequence), which complains that the application could not be lawfully refused under regulation 18A(1)(a) on the ground that the Applicant's passport was in the possession of the Secretary of State's agents, was disallowed at the permission stage following an oral renewal hearing. It is, therefore, moot at this stage. The next ground raises the question of law of whether a claim based on Article 8 ECHR can be incorporated in an application under the EEA Regulations. The parties' representatives were aware that there is currently pending a reserved decision on this issue in the Upper Tribunal and I indicated that it would not be appropriate to advance arguments thereon, given in particular that this challenge can be decided on other grounds.
(5) The third ground which I shall address challenges the Secretary of State's assessment that the Applicant had failed to demonstrate that she is “ the direct relative or legal guardian of” the child in question. This formulation of this ground requires a slight amendment of the Applicant's pleaded second ground which, having given the parties an opportunity to make submissions, I authorise. The aforementioned assessment is unparticularised and unreasoned. I consider that the evidence supplied with the application and subsequently in response to a request for elaboration, which included the child's birth certificate and other materials, demonstrated beyond peradventure that the Applicant is the mother of the child concerned. On this basis alone, the impugned decision of the Secretary of State is vitiated by material error of fact and/or irrationality. This sounds also on the remainder of this ground since, taking into account the totality of the information supplied by the Applicant, I consider that it was not rationally open to the decision maker to conclude that there was insufficient evidence of the various, inter-related elements of the status of “ primary carer”.
(6) The fourth, and final, ground of challenge complains that the impugned decision is unlawful as it is in breach of each of the duties enshrined in section 55 of the Borders, Citizenship and Immigration Act 2009 (the “ 2009 Act”). There is no dispute between the parties that the impugned decision falls within the section 55(2) embrace of “any function of the Secretary of State in relation to immigration, asylum or nationality”. For the reasons elaborated in my ex tempore judgment, I consider this ground to be clearly established. In summary:
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(i) There is a patent misdirection in law in the impugned decision, by reason of the formulation of the duty as a “ duty of care”. I reproduce the offending passage in full:
“ The Home Office discharges its duty of care by acting on any concerns it identifies regarding the welfare of children with whom they come into contact and by conducting checks that are consistent with the impact of its decision making.”
This is a classic breach of the “Tameside” principle: the decision maker has asked the wrong question ( Secretary of State for Education and Science v Tameside MBC [1977] AC 1014).
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(ii) This error is compounded by the unintelligible statement that the Home Office conducts checks “ that are inconsistent with the impact of its decision making”: this fails the plain English test.
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(iii) This passage continues:
“ To this extent, the position of your children ….. [both named] … have been considered in the light of the requirements incumbent on the Home Office as defined under section 55 of the 2009 Act, section 11 of the Children Act 2004 and also in the light of the Supreme Court ruling in the case ofZH (Tanzania) ...
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