Upper Tribunal (Immigration and asylum chamber), 2007-09-04, [2007] UKAIT 78 (ST and others (Article 3:2: Scope of regulations))
| Jurisdiction | UK Non-devolved |
| Judge | Mr C M G Ockelton, Deputy President, Designated Immigration Judge McCarthy, Immigration Judge Hanson |
| Status | Reported |
| Date | 04 September 2007 |
| Published date | 13 September 2007 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | Article 3:2: Scope of regulations |
| Hearing Date | 13 July 2007 |
| Appeal Number | [2007] UKAIT 78 |
ST and others (Article 3.2: Scope of regulations) India [2007] UKAIT 00078
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Heard at: Birmingham Date of Hearing: 13 July 2007
Before:
Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
Designated Immigration Judge McCarthy
Immigration Judge Hanson
Between
Appellants
and
THE ENTRY CLEARANCE OFFICER, MUMBAI
Respondent
Representation
For the Appellants: Mr N Ahmed, instructed by Bhavsar Patel Solicitors
For the Respondent: Miss E Mepstead, Home Office Presenting Officer
Article 3.2 of the Citizens Directive 2004/38/EC does not limit the scope or the terms of any national legislation that gives substantive rights to individuals covered by that provision.
DETERMINATION AND REASONS
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We heard these three appeals together, because Mr Ahmed, on behalf of the appellants, wished to raise similar submissions in all of them. In each, the appellants are citizens of India who applied for EEA family permits in order to allow them to join family members (to whom in each case we shall refer as “the sponsor”) who are in the United Kingdom exercising Treaty rights here. In each case the applications were refused; there were unsuccessful appeals to Immigration Judges, followed by orders for reconsideration at the instance of the appellant. Thus the appeals come before us.
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In the first appeal, the first appellant is the sponsor’s sister-in-law; the second appellant is her child and is therefore the sponsor’s niece. In the second appeal the appellants are the sponsor’s adult sons. In the third appeal the appellants are again the sponsor’s adult sons.
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Both before us and before the Immigration Judge, Mr Ahmed based his submissions on the basis of the Citizens Directive, 2004/38/EC, and argued that certain provisions in the Directive had the effect of (i) giving the appellants what they seek; or (ii) rendering the UK’s implementing legislation, the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) ineffective; or (iii) requiring those regulations to be read in a particular way.
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In the Directive, Article 2.2 defines “family member”. For the present purposes we say only that the definition includes descendents over 21 if they are dependent, but excludes descendents over 21 if they are not dependent, and excludes sisters-in-law, nephews and nieces. Article 3 is as follows:
“Beneficiaries
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.”
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Regulation 7 of the 2006 Regulations defines “family member” in such a manner as, for present purposes, may be regarded as congruent with the definition in the Directive. Regulation 8 defines “extended family member”. It is as follows:
“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 EEA State in which the EEA national also resides and is dependent upon the EEA national or is a member of his household;
(b) the person satisfied the condition in paragraph (a) and is accompanying the EEA national to the United Kingdom or wishes to join him there; or
(c) the person satisfied the condition in paragraph (a), has joined the EEA national in the United Kingdom and continues to be dependent upon him or to be a member of his household.
(3) A person satisfies the condition in this paragraph if the person is a relative of an EEA national or his spouse or his civil partner and, on serious health grounds, strictly requires the personal care of the EEA national his spouse or his civil partner.
(4) A person satisfies the condition in this paragraph if the person is a relative of an EEA national and would meet the requirements in the immigration rules (other than those relating to entry clearance) for indefinite leave to enter or remain in the United Kingdom as a dependent relative of the EEA national were the EEA national a person present and settled in the United Kingdom.
(5) A person satisfies the condition in this paragraph if the person is the partner of an EEA national (other than a civil partner) and can prove to the decision maker that he is in a durable relationship with the EEA national.
(6) In these Regulations "relevant EEA national" means, in relation to an extended family member, the EEA national who is or whose spouse or civil partner is the relative of the extended family member for the purpose of paragraph (2), (3) or (4) or the EEA national who is the partner of the extended family member for the purpose of paragraph (5).”
Regulation 12 is headed “Issue of EEA family permit”:
“12.—(1) An entry clearance officer must issue an EEA family permit to a person who applies for one if the person is a family member of an EEA national and—
(a) the EEA national—
(i) is residing in the UK in accordance with these Regulations; or
(ii) will be travelling to the United Kingdom within six months of the date of the application and will be an EEA national residing in the United Kingdom in accordance with these Regulations on arrival in the United Kingdom; and
(b) the family member will be accompanying the EEA national to the United Kingdom or joining him there and—
(i) is lawfully resident in an EEA State; or
(ii) would meet the requirements in the immigration rules (other than those relating to entry clearance) for leave to enter the United Kingdom as the family member of the EEA national or, in the case of direct descendants or dependent direct relatives in the ascending line of his spouse or his civil partner, as the family member of his spouse or his civil partner, were the EEA national or the spouse or civil partner a person present and settled in the United Kingdom.
(2) An entry clearance officer may issue an EEA family permit to an extended family member of an EEA national who applies for one if—
(a) the relevant EEA national satisfies the condition in paragraph (1)(a);
(b) the extended family member wishes to accompany the relevant EEA national to the United Kingdom or to join him there; and
(c) in all the circumstances, it appears to the entry clearance officer appropriate to issue the EEA family permit.
(3) Where an entry clearance officer receives an application under paragraph (2) he shall undertake an extensive examination of the personal circumstances of the applicant and if he refuses the application shall give reasons justifying the refusal unless this is contrary to the interests of national security.
(4) An EEA family permit issued under this regulation shall be issued free of charge and as soon as possible.
(5) But an EEA family permit shall not be issued under this regulation if the applicant or the EEA national concerned falls to be excluded from the United Kingdom on grounds of public policy, public security or public health in accordance with regulation 21.”
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It had been argued in a number of appeals, these included, that Article 3.2 of the Directive gave to those encompassed by that Article some right of admission to or residence in EU countries. That right would have had to be somewhat inchoate because, although the Directive goes on to define the rights of those family members encompassed by Article 2.2 with some precision, it says nothing more at all about other family members. The argument was rejected by this Tribunal in AP & FP [2007] UKAIT 00048. Mr Ahmed told us that he did not seek directly to challenge the conclusions reached there. Those conclusions were that family members other than those falling within the definition of Article 2.2 of the Directive have no substantive right under EU law to admission to or residence in a Member State. Any substantive rights they have are regulated by the national law of the Member State in question. National law may be more generous than is required by the Directive: see Article 37. The provisions in UK law for relatives falling within Article 3.2 are found in reg 8 and reg 12(2). A person who falls outside the...
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