SGC and Others (EEA – Date of decision – 1999 act) Ireland
| Jurisdiction | England & Wales |
| Judgment Date | 23 December 2005 |
| Date | 23 December 2005 |
| Court | Asylum and Immigration Tribunal |
Asylum and Immigration Tribunal
Mr C M G Ockelton, Deputy President, Mr P R Lane, Senior Immigration Judge and Professor A Grubb, Senior Immigration Judge
Representation:
Mr Manjit Gill QC instructed by Christine Lee & Co, for the Claimant;
Mr Peter Deller, Home Office Presenting Officer, for the Respondent.
Cases referred to:
Chen and Zhu v Secretary of State for the Home Department Case C200/02, ECJ; [2004] Imm AR 754; [2005] INLR 1
LS (Post-decision evidencedirectionsappealability) Gambia [2005] UKIAT 00085; [2005] Imm AR 310; [2006] INLR 61
Marks & Spencer v Customs and Excise Commissioners Case C62/00, ECJ;
R v Immigration Appeal Tribunal ex parte KotechaWLR [1983] 1 WLR 487 [1982]; Imm AR 88
R v Secretary of State for the Home Department ex parte Ravichandran; R v Immigration Appeal Tribunal ex parte Rajendrakumar; R v Secretary of State for the Home Department ex parte Sandralingham [1996] Imm AR 97
SK (ReturnEthnic Serb) Croatia CG* [2002] UKIAT 05613
Legislation judicially considered:
Immigration and Asylum Act 1999, ss 77, 80 and 85, and Schedule 4, paragraph 21;
Immigration (European Economic Area) Regulations 2000, SI 2000/2326, Regulations 5(1), 29, and Schedule 2, paragraph 4;
Nationality, Immigration and Asylum Act 2002, s 85
Appeals immigration appeal under the Immigration and Asylum Act 1999 evidence date for consideration EU law right of family EEA decision made under the EEA Regulations 2000
The Claimants, a Chinese couple and their two children, applied for a residence permit and documents on the ground that the first Claimant, who was a citizen of the Republic of Ireland, was an EU national exercising treaty rights in the United Kingdom and was a qualified person within the Immigration (European Economic Area) Regulations 2000 (the EEA Regulations). The Secretary of State for the Home Department refused the application in December 2002. On appeal under the Immigration and Asylum Act 1999 (the 1999 Act), an Adjudicator held that the first Claimant was not a qualified person at the date of the Secretary of State's decision because he had not been covered by medical insurance at that time. It was accepted that the first Claimant had medical insurance and so did meet the criteria for a qualified person from October 2004, but the Adjudicator concluded that he was required to assess the facts as at the date of the initial decision. He dismissed the appeal. The Claimants were granted permission to appeal, which took effect as an order for reconsideration by the Asylum and Immigration Tribunal.
Held, affirming the original determination dismissing the Claimants' appeal against the decision by the Secretary of State:
(1) in an appeal governed by the 1999 Act against a decision made under the EEA Regulations, s 77 of the 1999 Act required immigration judges, where the appeal was not based on asylum or human rights grounds, to look to the facts as at the date of decision (paras 1619 and 23);
(2) this rule did not lead to a lack of equivalence between EEA cases and other in-country cases, as it applied equally to EEA nationals as to others; neither was the principle of effectiveness of EU rights transgressed by the application of this rule in the Claimants' case, as they could have effectively realised their EU rights by making a fresh application to the Secretary of State after October 2004 (paras 2122 and 24);
(3) the position was different in appeals under the Nationality, Immigration and Asylum Act 2002 in respect of decisions made on or after 1 April 2003; by virtue of s 85(4), in any in-country appeal the Tribunal might consider evidence arising after the date of decision (LS (Post-decision evidence; direction; appealability) Gambia [2005] UKAIT 00085 applied) (para 25).
Determination and Reasons
Professor A Grubb, Senior Immigration Judge
[1] 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.
[2] 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 in employment and between them, they own and operate two food takeaway businesses in Calne, Wiltshire where the family lives in accommodation which they lease.
[3] 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...
To continue reading
Request your trial
-
Boodhoo and Another (EEA Regs: Relevant Evidence) [Asylum and Immigration Tribunal]
...[1981] 2 WLR 960; [1981] 3 All ER 46; [1980] 3 CMLR 220 SGC and others (EEA — Date of Decision — 1999 Act) Ireland [2005] UKAIT 179; 2006 Imm AR 244 Legislation and international instruments judicially considered: Directive 2004/38/EC (‘the Citizens Directive’), Articles 7 & 11 Immigration ......