Upper Tribunal (Immigration and asylum chamber), 2016-08-19, IA/00386/2014 & Ors.
| Jurisdiction | UK Non-devolved |
| Date | 19 August 2016 |
| Published date | 02 March 2018 |
| Hearing Date | 18 March 2016 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | IA/00386/2014 & Ors. |
Appeal Number: IA/00386/2014
IA/51098/2014
IA/51107/2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/00386/2014
IA/51098/2014
IA/51107/2014
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision & Reasons Promulgated |
|
on 18 March 2016 |
on 19 August 2016 |
Before
UPPER TRIBUNAL JUDGE HANSON
Between
KOLAWOLE [O]
TEMITOPE [O]
[N O]
(Anonymity direction not made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
and
THE AIRE CENTRE
Intervener
Representation:
For the Appellant: Ms B. Asanovic, Counsel, instructed by Wilson Solicitors LLP
For the Respondent: Ms J. Smyth instructed by the Government Legal Department on behalf of the respondent.
For the Intervener: Leave to intervene granted limited to the making of written submissions only.
DECISION AND REASONS
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This is an appeal against a decision of the First-tier Tribunal promulgated on the 30 December 2014 in which First-tier Tribunal Judge S Rodgers allowed the appellants’ appeals against the decision of the Secretary of State refusing their applications for derived residence cards but dismissed the appeals against the refusal of their applications for permanent residence.
Background
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The appellants’ form part of a family unit. The first appellant (A1) entered the United Kingdom on 7 November 2012 on a 6 month visit visa. The second appellant (A2), his wife, gave birth to their first child [M] in Ireland on [ ] 2003 and entered the United Kingdom thereafter with the child on 4 December 2003. [M] is an Irish national and therefore an EU citizen. The first and second appellants’ are citizens of Nigeria.
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The third appellant (A3) was born on [ ] 2005 but does not pursue her appeal to the Upper Tribunal having acquired British citizenship in the interim.
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On 2 August 2010 the Upper Tribunal allowed [M]’s appeal against the refusal of her application for a registration certificate, on the grounds that she was exercising a right to reside as a self-sufficient person in the UK. The first and second appellants’ were granted residence cards not permitting them to work.
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On 9 November 2012 the appellants applied for residence cards permitting them to work. Those applications were refused by the Secretary of State dated 12 December 2013.
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Permission to appeal the decision of Judge Rodgers was refused by another judge of the First-tier Tribunal but granted on a renewed application by the Upper Tribunal in the following terms:
“It is arguable for the reasons set out in detail in the renewed grounds seeking permission to appeal that this matter raises an important point of law relating to the issue of a right of permanent residence for a Chen parent. The submissions filed by Wilson Solicitors are supplemented by a letter from the Aire Centre which makes reference to the CJEU judgment of O & B [2014] ECR I-nyr (12 March 2014).”
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Directions given on the grant of permission included that providing The Aire Centre with leave to intervene by way of written submissions only. The matter was also directed be listed before the President of the Upper Tribunal, Mr Justice McCloskey, and Upper Tribunal Judge Hanson although as a result of urgent presidential business on the day the President was unable to sit in panel and the matter proceeded before Upper Tribunal Judge Hanson sitting alone. Accordingly the President has had no input into the making of this decision.
Preliminary issue
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At the commencement of the hearing Ms Asanovic raises the issue of an adjournment pending the decision of the Court of Justice of the European Union (CJEU) in the case of Secretary of State for the Home Officer v NA, on the basis there was no direct authority from the CJEU on the point in issue. Reference was also made to a statement of Ana Gonzalez, a partner in Wilsons Solicitors LLP, who has conduct of this matter of behalf of the appellants’.
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The statement refers to the author’s personal knowledge of the case of NA (Pakistan) which was heard on the 18 February 2016 by the First Chamber of the Court of Justice of the European Union (CJEU). The Advocate Generals Opinion was to be handed down on 14 April 2016 and full judgment delivered later in 2016. It was concluded by the author to be a matter of potential relevance, although it is also noted by Ana Gonzalez at paragraph 8 of the statement that “Notwithstanding this situation, I would respectfully suggest that there is no reason for any hesitation with proceeding with this hearing listed for 18 March 2016 – because the prospect of the CJEU ruling on this particular issue is extremely small and in any event the specific issue of self-sufficiency does not arise on the facts of NA”.
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On 10 May 2016, post hearing, the Upper Tribunal received a further letter from Wilsons Solicitors having attaching to it a copy of the Opinion of Advocate General Wathelet in case C-115/15 Secretary of State for the Home Department v NA, dated 14 April 2016.
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The application for an adjournment was refused as there was no arguable basis for granting the same when considering the issue of fairness. An opinion of an Advocate General is not binding and it was acknowledged in the appellants’ own material that there would be further delay and that the core issue in this case may not even be considered by the CJEU in NA. The Opinion is referred to further below.
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Ms Asanovic also raised the issue of a reference to the CJEU in her skeleton argument at [55-61] on the basis the legal position is acte clair, (the idea in EU law being that there is no need to refer a point of law which is reasonably clear and free from doubt to the European Court of Justice), which is disputed by Ms Smyth who asserts the matter is acte eclaire.
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Whether a question needs to be referred to the CJEU is a matter to be considered at the conclusion of a hearing when it can be established if the law as it stands is reasonably clear and free from doubt. This issue shall be referred to further below.
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The vote to leave the European Union, more commonly referred to as BREXIT, occurred between the hearing of this matter and the publication of this decision. It has not been considered necessary for the parties to be invited to make further submissions as the impact of the vote and timetable for leaving the European Union and impact upon the application of European law to decisions of the United Kingdom’s courts and Tribunals is not yet clear. In particular it has not been suggested that the case law or legislative provisions relied upon by the parties in their submissions should be viewed in any different light at this time. If in the future the status of the United Kingdom changes, the impact upon this and many other decisions reliant upon European Union law may have to be reconsidered. The decision reflects the writer’s opinion of the state of the law at the date of the publication of the judgment.
Grounds and submissions
The appellants’ argument
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The appellants’ case is set out in the skeleton argument of Ms Asanovic and oral submissions made to the Tribunal.
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The core submission is that a teleological interpretation of Article 16 of Directive 2004/38EC warrants a grant of residence so as to give effect to the intentions of the drafters of the Directive to establish a permanent right of residence so as to promote social cohesion. The term teleological being taken by this Tribunal to be a reference to ‘relating to design or purpose’ rather than being a submission based upon the strict wording of the Directive.
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Ms Asanovic submitted that the definition of what it means to be ‘legally resident’ for the purposes of Article 16(2) of directive 2004/38/EC must include persons who have been self-sufficient in the sense of Article 7(1)(b) having derived the EU right of residence from the principles in C-200/02 Zhu and Chen v SSHD [2005] OQ 325 [A-C-125-152] – i.e. the Directive 2004/38/EC and Articles 21 TFEU if interpreted in the context of the preamble and the subsequent case law. It is submitted, in the alternative, that this not acte clair and a reference should be made as noted above.
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In paragraph 16 of the skeleton argument the issue is put in the following way:
‘16. In the present case, [M] had moved from Ireland to the UK where she had sufficient resources so as not to become a burden on the social assistance of the member state and she also had private health insurance, thus falling squarely within Article 7(b) of the Directive. The family members also fulfil the same criteria required by Article 7(b), but for not being her family members as defined by Article 2(2) in that they are not her descendants (Art 2(2)(c)) or her dependants (Art 2(2)(d)). The issue therefore is whether wording, context and purpose of...
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