Upper Tribunal (Immigration and asylum chamber), 2014-10-17, IA/40868/2013

Appeal Number: IA/40868/2013

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: IA/40868/2013

THE IMMIGRATION ACTS

Heard at Field House	Determination Promulgated
On 3 July 2014	On 17 October 2014

Before

THE HONOURABLE MR JUSTICE HADDON-CAVE

UPPER TRIBUNAL JUDGE KOPIECZEK

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

KAMILA SANTOS CAMPELO CAIN

Respondent

Representation:

For the Appellant: Mr J. Doerfel and Mr J. Chipperfield, Counsel

For the Respondent: Mr C. Avery, Home Office Presenting Officer

DETERMINATION AND REASONS

Introduction

1. The appellant in these proceedings is the Secretary of State. It is convenient however, to refer to the parties as they were before the First-tier Tribunal.

2. At the heart of this appeal lies the issue of whether an unmarried partner is entitled to the benefit of the decision in Surinder Singh [1992] EUECJ C-370/90 which concerns British citizens returning to the UK after having exercised Treaty rights in another EEA State, and the extent to which a third country national family member of such a British citizen is entitled to reside in the UK under European Community law.

3. The appellant is a citizen of Brazil, born on 23 August 1978. On 6 June 2013 she made an application for a residence card as the family member of an EEA national, who in this case is a British citizen. That application was refused in a decision dated 18 September 2013.

4. Her appeal against that decision was allowed by First-tier Tribunal Judge Powell after a hearing on 23 April 2014. He concluded that regulation 9(2) of the Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations"), in limiting its application to married persons or civil partners, is contrary to Directive 2003/38 (“the Directive”).

5. Permission to appeal against his decision having been granted, the appeal came before us.

Submissions

6. We summarise the submissions of the parties before us. On behalf of the respondent Mr Avery submitted that even if the judge was correct to find that the decision in Surinder Singh benefited the appellant, he ought to have gone on to consider how this would affect the application of other aspects of the EEA Regulations.

7. It was further submitted that the Directive, in Article 3(2), refers to ‘facilitating’ entry and residence. In addition, relationships other than that of spouses are not comparable and do not benefit from the same level of ‘protection’ as spouses.

8. In terms of the European Casework Instructions (“ECI’s”) to which the judge referred at [19] of his determination, it was suggested that they are rather loosely worded and do not in fact represent an intention on the part of the Secretary of State to extend the Surinder Singh principle beyond what is within regulation 9 of the EEA Regulations. We were referred to other aspects of the ECI’s which were relied on as making good that proposition.

9. Mr Doerfel for the Appellant relied on his skeleton argument. He submitted that the First-tier judge did not allow the appeal under the EEA Regulations, having found at [17] that the EEA Regulations did not apply to the appellant. Surinder Singh does not deal with which family members benefit. However, the ratio of the decision is that, if one is a British national exercising Treaty rights, then on return to the UK you would be treated exactly the same as any other European national exercising Treaty rights.

10. In this appeal, the judge had applied the Directive directly. He found that the appellant's partner was exercising Treaty rights in Portugal and Spain. It is clear from [6] of the determination that none of the facts were contested, and at [15] and [20] he found that the appellant and her partner were in a durable relationship. He concluded that the EEA Regulations denied them rights under EC law.

11. Mr Doerful submitted that the EEA Regulations discriminated between other EU nationals and British nationals, in terms of those who are able to bring to the UK those with whom they are in a durable relationship. Regulation 9 operated as a complete bar to someone in the appellant's situation.

12. Mr Chipperfield on behalf of the appellant referred to other aspects of the skeleton argument and the authorities cited in it, in terms of applying the Directive.

Our analysis

13. After hearing submissions from the parties, we referred them to the decision of the Upper Tribunal in Ihemedu (OFMs – meaning) Nigeria [2011] UKUT 00340(IAC), in relation to the discretion within regulation 17(4) to issue a residence card to an extended family member. Because neither party was in a position to make submissions in relation to that issue with reference to that decision, we allowed a period of 7 days for further submissions to be made. It was made clear that the further submissions were to be confined to this issue.

14. The appellant's further written submissions provided after the hearing plainly misunderstand the basis upon which we allowed further written submissions to be made. In so far as those submissions go further than the limited basis upon which we consented to the making of further submissions, we do not take them into account. Purely in relation to the issue of the exercise of the Secretary of State’s discretion, we consider below the further written submissions that were put before us after the hearing.

15. At the outset, we are able to dispose of the contention in the respondent’s grounds that the First-tier judge allowed the appeal with reference to the EEA Regulations. In our view, he manifestly did not, as is evident from [17] of the determination. There he stated that regulation 9(2) does not apply to an unmarried partner and that the Secretary of State was therefore correct to conclude that the appellant does not meet the requirements of regulation 9(2).

16. The uncontested facts are as follows:

    • The appellant and her partner, Adrian Hamling, are in a durable relationship.

    • They have been living together since 30 June 2008.

    • They have three children; a son born on 1 March 2009, a daughter born on 23 November 2010 and another son born on 13 May 2012.

    • The appellant's partner has exercised Treaty rights in Spain from January 2010 until September 2011 and for four months in Portugal until January 2012.

    • The appellant and her partner lived together in Spain and Portugal.

    • In January 2012, the appellant, her partner and their children returned to the UK.

17. We set out below the relevant provisions of the EEA Regulations, starting with regulation 9 which is that which most directly concerns this appeal. The appellant's skeleton argument quotes a version of regulation 9 prior to its amendment in December 2012, but the difference is immaterial. With effect from January 2014, there was further amendment to regulation 9. Again, however, the amendment is immaterial for the purposes of this appeal. As applicable at the date of the decision, regulation 9 provided as follows:

“Family members of British citizens

9.—(1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who is the family member of a British citizen as if the United Kingdom national were an EEA national.

(2) The conditions are that—

(a) the British citizen is residing in an EEA State as a worker or self-employed person or was so residing before returning to the United Kingdom; and

(b) if the family member of the United Kingdom national is his spouse or civil partner, the parties are living together in the EEA State or had entered into the marriage or civil partnership and were living together in that State before the United Kingdom national returned to the United Kingdom.

(3) Where these Regulations apply to the family member of a British citizen the British citizen shall be treated as holding a valid passport issued by an EEA State for the purpose of the application of regulation 13 to that family member.”

18. Regulation 2 states that “EEA national” means a national of an EEA State who is not also a British national. Thus, regulation 9 makes provision for a British national to be treated as an EEA national for the purposes of the EEA Regulations in the circumstances described in regulation 9.

19. Regulation 8 provides as follows:

“Extended family member”

8.—(1) In these Regulations “extended family member” means a person who is not a family member of an EEA national under regulation 7(1)(a), (b) or (c) and who satisfies the conditions in paragraph (2), (3), (4) or (5).

(2) A person satisfies the condition in this paragraph if the person is a relative of an EEA national, his spouse or his civil partner and—

(a) the person is residing in an a country other than the United Kingdom and is dependent...