Secretary of State for the Home Department v Jefferey Aibangbee
| Jurisdiction | England & Wales |
| Judge | Sir Stephen Richards,Lord Justice Baker,Lady Justice Sharp |
| Judgment Date | 07 March 2019 |
| Neutral Citation | [2019] EWCA Civ 339 |
| Docket Number | Case No: C5/2017/2205 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 March 2019 |
[2019] EWCA Civ 339
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Deputy Upper Tribunal Judge Juss
1A/27029/2015
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Sharp
Lord Justice Baker
and
Sir Stephen Richards
Case No: C5/2017/2205
William Irwin (instructed by the Government Legal Service) for the Appellant
Ramby de Mello (instructed by JM Wilson Solicitors) for the Respondent
Hearing date: 20 February 2019
Approved Judgment
The respondent, a citizen of Liberia, applied in February 2015 for a permanent residence card under the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”) as the family member of an EEA national. Regulation 15(1)(b) provided that the right to reside in the United Kingdom permanently was acquired by “a family member of an EEA national who is not himself an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years”. The respondent was the unmarried partner of a Czech national with whom, as was subsequently found, he had been residing in the United Kingdom in a durable relationship since 2008. It was only in May 2013, however, that he had been issued with a residence card. His application for a permanent residence card was refused by the Secretary of State on the ground that time began to run only from May 2013 when the residence card was issued, since that was the time from which he was to be treated as a family member in accordance with the Regulations. On that basis the earliest date when the five year requirement could be met would be May 2018.
The respondent appealed successfully to the First-tier Tribunal (“the FTT”), which rejected the Secretary of State's argument that time began to run only from the date of issue of the residence card. The FTT judge held by reference to article 25(1) of Directive 2004/38/EC of the European Parliament and of the Council on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (“the Directive”) that a residence card confirms status rather than granting it. The judge held further that “although the State may in the exercise of its discretion impose particular requirements, those requirements must not deprive the original provision of its effectiveness ( SSHD v Islam & Anor [2012] EUECJ C-83/11) and to conclude that [the respondent] would only qualify for permanent residence in 2018 would in my view do so”. The case referred to by the judge is reported as Secretary of State for the Home Department v Rahman (Case C-83/11) [2013] QB 249 (“ Rahman”).
An appeal by the Secretary of State to the Upper Tribunal (“the UT”) was dismissed by Deputy Upper Tribunal Judge Juss, who found no material error of law in the FTT's determination.
The Secretary of State now appeals to this court against the UT's determination, with permission granted by Upper Tribunal Judge Gill. The issues in the appeal relate to the construction of the Directive and the 2006 Regulations. The issues have been enlarged by a respondent's notice which argues that the respondent was eligible to be considered for permanent residence pursuant to article 16 of the Directive, as well as enjoying procedural rights under article 25.
Whilst the 2006 Regulations govern this case, they have since been replaced by the Immigration (European Economic Area) Regulations 2016. It is said that those later regulations largely reproduce the 2006 Regulations as amended, but it has not been necessary for us to consider them.
We were informed during the hearing of the appeal that the respondent had in fact been issued with a permanent residence card in July 2018, following his completion of the five-year period required on the Secretary of State's approach to the law. As between the parties, therefore, the present appeal has become moot. But in view of the importance of the issues and the stage that proceedings had reached, we decided that it would be appropriate to continue to hear and determine it.
The Directive
As its title indicates, the Directive confers rights of free movement and residence on Union citizens and their family members.
Article 2(1) defines “Union citizen” as “any person having the nationality of a Member State”. Article 2(2) defines “family member” as follows:
“‘Family member’ means:
(a) the spouse;
(b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State;
(c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partners as defined in point (b);
(d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b).”
Article 3, headed “Beneficiaries”, draws a distinction between, on the one hand, family members as defined in article 2(2) and, on the other hand, other family members and partners:
“3(1) This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of article 2 who accompany or join them.
(2) Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation facilitate entry and residence for the following persons:
(a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;
(b) the partner with whom the Union citizen has a durable relationship, duly attested.
The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.”
Chapter III of the Directive concerns the right of residence. In summary, article 6 confers on Union citizens and their family members an initial right of residence on the territory of another Member State for up to three months; article 7 confers a right of residence for longer than three months if specified conditions are met; article 8 provides that the host Member State may require Union citizens (including family members who are themselves Union citizens) to register and to be issued with a registration certificate; and articles 9 and 10 provide for the issue of a residence card to family members of a Union citizen who are not nationals of a Member State, and prescribe the documents to be presented for the residence card to be issued.
Chapter IV concerns the right of permanent residence. Article 16, headed “General rule for Union citizens and their families”, provides:
“16(1) Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there. This right shall not be subject to the conditions provided for in Chapter III.
(2) Paragraph 1 shall apply also to family members who are not nationals of a Member State and have legally resided with the Union citizen in the host Member State for a continuous period of five years ….”
Chapter V contains provisions common to the right of residence and the right of permanent residence. It includes the following, in article 25:
“25(1) Possession of a registration certificate as referred to in article 8, of a document certifying permanent residence, of a certificate attesting submission of an application for a family member residence card, of a residence card or of a permanent residence card, may under no circumstances be made a precondition for the exercise of a right or the completion of an administrative formality, as entitlement to rights may be attested by any other means of proof ….”
Those are the most important provisions of the Directive for the purposes of this case, though it will be necessary to refer to certain others when considering the parties' submissions.
The 2006 Regulations implemented the Directive.
Regulation 7(1) provided:
“Subject to paragraph (2) [which is immaterial], for the purposes of these Regulations the following persons shall be treated as the family members of another person:
“(a) his spouse or his civil partner;
(b direct descendants of his, his spouse or his civil partner who are (i) under 21; or (ii) dependants of his, his spouse or civil partner;
(c) dependent direct relatives in his ascending line or that of his spouse or his civil partner;
(d) a person who is to be treated as the family member of that other person under paragraph (3).
…
(3) Subject to paragraph (4) [which is immaterial], a person who is an extended family member and has been issued with an EEA family permit, a registration certificate or a residence card shall be treated as the family member of the relevant EEA national for as long as he continues to satisfy the conditions in regulation 8(2), (3), ( 4) or (5) in relation to that EEA national and the permit, certificate or card has not ceased to be valid or been revoked.”
It will be seen that regulation 7(1)(a)-(c) reflected the definition of “family member” in article 2(2) of the Directive. Regulation...
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Upper Tribunal (Immigration and asylum chamber), 2023-02-13, EA/16462/2021
...of the discussion in relation to “facilitation” in Rahman is in the context of making an application. This is confirmed in Aibangbee [2019] EWCA Civ 339 which at [36] quotes with approval [15] to [20] of Macastena v SSHD [2018] EWCA Civ 1558 where it is said at “Likewise in the present case......
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