SGC and Others (EEA – Date of Decision – 1999 Act)
| Jurisdiction | England & Wales |
| Judge | PROFESSOR A GRUBB,SENIOR IMMIGRATION JUDGE |
| Judgment Date | 23 December 2005 |
| Neutral Citation | [2005] UKAIT 179 |
| Court | Asylum and Immigration Tribunal |
| Date | 23 December 2005 |
[2005] UKAIT 179
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Mr C M G Ockelton (Deputy President)
Mr P R Lane (Senior Immigration Judge)
Professor A Grubb (Senior Immigration Judge)
For the Appellant: Mr M Gill QC instructed by Christine Lee & Co, Solicitors
For the Respondent: Mr P Deller, Home Office Presenting Officer
SGC and others (EEA — Date of Decision — 1999 Act) Ireland
In an appeal under the Immigration and Asylum Act 1999 against an EEA decision made under the EEA Regulations 2000, section 77(4) of the 1999 Act applies and an adjudicator or immigration judge is required to allow or dismiss the appeal on the basis of the facts as at the date of the Secretary of State's decision and not at the date of the hearing.
The four appellants in these appeals are a family of Chinese ethnicity who live in the United Kingdom. The first appellant was born on 15 July 2002 in Dublin and is, therefore, a citizen of the Republic of Ireland. The second appellant is his sister who was born in the UK on 2 July 2001 but is a citizen of the People's Republic of China. The third and fourth appellants are respectively the father and mother of the first and second appellants. They are both citizens of the People's Republic of China.
The third appellant, [] came to the United Kingdom in 1997 and unsuccessfully claimed asylum. At some point, the fourth appellant, [] came to the UK and also unsuccessfully claimed asylum. They married in November 1999. Despite their status, or lack of it, neither appellant was restricted from engaging employment and between them, they own and operate two food takeaway businesses in Calne, Wiltshire where the family lives in accommodation which they lease.
On 24 October 2002, following the birth of the first appellant, representatives acting on behalf of the four appellants applied to the Secretary of State for a residence permit for the first appellant and residence documents for the other three appellants. It was said on their behalf that the first appellant, an EU national because he was an Irish citizen, was exercising his EU free movement rights in the UK and, as a result, both he and his family were entitled to remain in the UK. On 10 December 2002, the Secretary of State refused their applications. He did not accept that the first appellant was exercising an EU right in the UK and was, therefore, a “qualified person” within the Immigration (European Economic Area) Regulations 2000, SI 2000/2326 (hereafter “the EEA Regulations 2000”) and thus also that the other appellants were “family members” of a “qualified person”.
In a determination promulgated on 3 December 2004 an adjudicator, Mr R R Hopkins dismissed the four appellants' appeals. The appellants sought and were granted permission to appeal to the Immigration Appeal Tribunal in March 2005; that grant now takes effect as an order for reconsideration before the Asylum and Immigration Tribunal under the transitional provisions and is restricted, by virtue of rule 62(7) of the Procedure Rules, to the ground upon which leave was granted.
It is not necessary for us to set out in detail the terms of the EEA Regulations 2000 which apply to these appeals. In summary, regulation 15(1) entitles, on proof of certain matters, the first appellant to a residence permit as an EEA national if he is a “qualified person”. If he is so entitled, regulation 15(2) (read with the ECJ's decision in Chen and Zhu (Case C-200/02) [2004] Imm AR 754) entitles the other appellants as his “family members” to residence documents on the same basis. There is no doubt that the first appellant is an EEA national. The only question is whether he is a “qualified person” within the EEA Regulations.
The adjudicator rejected the appellants’ case that the first appellant was exercising an EU right (and thus a “qualified person”) as he was not in receipt of services or was a student. We say no more about this because Mr Manjit Gill QC, who appeared on behalf of the appellants, no longer placed any reliance on this aspect of the case as original put to the adjudicator. However, the adjudicator held that the first appellant could, in principle, rely on his EU right of free movement under Article 18, EC Treaty and Council Directive 90/364/EEC if he was a ‘self-sufficient’ person.
The EEA Regulations 2000 give effect to these EU provisions, regulation 5(1) of which defines a “qualified person” to include:
“(e) a self-sufficient person; …”.
Regulation 3(e) states that a “self-sufficient person means a person who
“(i) has sufficient resources to avoid his becoming a burden on the social assistance system in the United Kingdom; and
(ii) is covered by sickness insurance in respect of all risks in the United Kingdom; …”.
The adjudicator accepted that the family's resources and financial situation were such that the first appellant (and indeed the whole family) would not require them to resort to support from public funds (para [29]). However, he concluded that at the date of the Secretary of State's decision the first appellant and his family were not covered by sickness, i.e medical, insurance. Their BUPA membership was dated 27 October 2004: which post-dated the Secretary of State's decision. Thus, the first appellant was not a “qualified person” within the EEA Regulations 2000 exercising treaty rights as a ‘self-sufficient’ person at the date of the Secretary of State's decision although he was by the date of the hearing. In paragraphs [23] to [26] of his determination, the adjudicator concluded that he was required to assess the facts at the date of decision and so he dismissed the appeals.
It is this final matter which is the sole basis for the reconsideration. The facts are not disputed. It is now accepted that if the adjudicator erred in law because he should have assessed the facts as at the date of the hearing, the appellants are entitled to succeed; otherwise the adjudicator's decision is unassailable. We turn, therefore, to consider that issue in the context of the statutory appeal framework
The Secretary of State's decisions in this case were taken on 10 December 2002 and hence the appeal framework is to be found in the Immigration and Asylum Act 1999 and the EEA Regulations 2000 as in force at that time.
Part VII of the EEA Regulations 2000 governs appeals against EEA decisions. Regulation 29(1) provides for the appeal and regulation 29(3), for these purposes, states that the appeal is to an adjudicator. The appeal provisions are made pursuant to the power in section 80 of the Immigration and Asylum Act 1999. In paragraph [24] of his determination, the adjudicator concluded that neither the EEA Regulations 2000 nor section 80 assisted him in deciding whether he should assess the facts at the date of the Secretary of State's decisions or at the date of hearing. Mr Gill appeared to be of much the same view when he addressed the Tribunal. Both are mistaken.
We deal first with the EEA Regulations 2000. Regulation 29(4) states that:
“Schedule 4 to the 1999 Act (appeals), to the extent (and with the modifications) set out in Schedule 2 to these Regulations, has effect in relation to appeals to the adjudicator under these Regulations.”
When one turns to Schedule 2 to the Regulations, we see that parts of Schedule 4 to the 1999 Act are to apply to EEA appeals, in...
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