R v The Secretary of state for the home department ex parte Amarjit Singh Sandhu
| Jurisdiction | England & Wales |
| Judgment Date | 16 June 1983 |
| Date | 16 June 1983 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Eveleigh, O'Connor LLJ and Sir David Cairns
Simon Brown and John Laws for the appellant (respondent).
Harjit Singh for respondent (applicant).
Cases referred to in the judgment:
R v PieckECAS [1981] 3 AER 46, CJEC (First Chamber) (Case 157/79).
Grewal v Secretary of State for the Home Department [1979–80] Imm. AR 119.
Christini [1975] EEC Reports 1085.
Marriage — Non-EEC male granted entry by virtue of marriage to national of a Member State — Child of marriage born in United Kingdom — Whether applicant entitled to unrestricted leave to remain after seemingly permanent departure from United Kingdom of wife and child — Whether applicant's claim dependent upon action of wife or had he an independent right from the spirit and intent of EEC law even if there was no direct relevant provision therein.
European Economic Community — Marriage to national of Member State — Whether Rules to be read subject to EEC law — Whether any right conferred by EEC law upon a non-EEC national other than those specifically set out in the regulations or directives.
The applicant, a citizen of India born 1 June 1981, married on 7 March 1975 a citizen of the Federal Republic of Germany, the marriage taking place in that country. Their temporary leave to enter the United Kingdom on 4 April 1975 was later extended for five years until 10 October 1980. After a son was born to them on 24 March 1976 the wife returned to Germany with the child and the applicant acknowledged that the parting appeared to be permanent. His application for revocation of conditions and unrestricted leave to remain was refused. His appeal to an adjudicator against that decision was dismissed. However, a subsequent application for judicial review by the Divisional Court was granted, an order quashing the adjudicator's and Home Office's decisions being issued. The present appeal arises therefrom.
Held: (i) Any right conferred by EEC Law upon a non-EEC national was to be found specifically in the regulations or directives.
(ii) There was no entitlement to find a wider protection for such person by looking at the preambles to the regulations or directives.
(iii) The case of Grewal v Secretary of State for the Home Department [1979–80] Imm. AR 119 had been correctly decided.
Eveleigh LJ: In March 1975 the husband, as I will call the respondent in this case, married, in Germany, a national of the German Federal Republic. On 4 April 1975 the wife, being an EEC national, was granted leave to enter the United Kingdom for six months. At that time clearly the regulations in force were not those in force today, but for the purpose of this case there is no material difference in the wording of the relevant immigration regulations or rules, and where it is necessary to quote from them I shall quote from those that were current at the time of the decision complained of in this case, even though they may not have been current at the time leave to enter, to which I shall refer, was given, namely, HC 394. That permission would have been granted under the equivalent of Rule 60 of HC 394. The case of The Queen v Pieck (1981) 3 AER 46 had not then been decided.
In October 1975 the wife was granted a resident's permit for five years until 10 October 1980, and the husband was given similar leave for that same period. The wife's permit would, at that time, have been granted by virtue of the equivalent to Rule 127. The husband was also granted a five-year leave, as I have said, terminating at the same date, and that is by virtue of the provision of Rule 131, which reads:
‘Members of the family of a person to whom paragraphs 127–13C apply, should be granted extensions of stay or issued with residence permits in the same terms as those relating to that person at the time in question. The family should be regarded as consisting of the person's spouse, their children under 21, their other children’ and so on.
In March 1976 a son was born. Some time thereafter, but before 1980, the wife went back to Germany, taking the son with her. We are told that there has been, since, a divorce. That was last year, in 1982. But that is not relevant for the purpose of the present appeal.
Some time in 1980 the husband went out of the United Kingdom and, on his return, was given leave to enter until 10 October 1980. He required leave because of the provisions of section 3, subsection 4, of the Immigration Act 1971. In September 1980 the husband applied for the limit upon his newly acquired leave to be removed, and on 3 November 1980 his application was refused. He was notified in the usual way on Form APP 101A, and was informed:
‘You have applied for indefinite leave to remain in the United Kingdom on the grounds of your marriage to...
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R v The Secretary of state for the home department ex parte Jacqueline Therese Botta
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