WW (EEA Regs. – civil partnership)
| Jurisdiction | England & Wales |
| Judge | P R Lane,Gill |
| Judgment Date | 09 February 2009 |
| Neutral Citation | [2009] UKAIT 14 |
| Court | Asylum and Immigration Tribunal |
| Date | 09 February 2009 |
[2009] UKAIT 14
Asylum and Immigration Tribunal
THE IMMIGRATION ACTS
SENIOR IMMIGRATION JUDGE P R Lane
SENIOR IMMIGRATION JUDGE Gill
For the Appellant: Mr P. Ward, Solicitor, James & Co Solicitors
For the Respondent: Ms S. Ong, Senior Home Office Presenting Officer
WW (EEA Regs. — civil partnership) Thailand
In regulation 10 of the Immigration (European Economic Area) Regulations 2006, “termination” of a civil partnership means formal, not de facto, termination. The length of a civil partnership for the purposes of regulation 10 is determined by reference to the period during which that partnership has formally existed and thus excludes any period during which the parties were in a relationship prior to the formation of the civil partnership under the 2004 Act.
What follows is the determination of the Tribunal. The appellant, a citizen of Thailand born on 19 February 1977, was most recently admitted to the United Kingdom on 26 April 2007 as an EEA family member on a family permit valid until 25 October 2007. On 12 June 2007 he applied to the respondent for a residence card as confirmation of a right of residence under European Community law as the civil partner of an EEA national exercising Treaty rights in the United Kingdom. It is common ground that the appellant's civil partner is, in fact, a citizen of Switzerland who, by reason of the EC-Switzerland Agreement on Free Movement of Persons, falls to be treated as an EEA national.
On 3 September 2008 the respondent refused the appellant's application. In the accompanying letter setting out the reasons for refusal, the respondent stated that she was not satisfied that the EEA national was currently exercising Treaty rights in the United Kingdom. The respondent's enquiries had disclosed that the EEA national was no longer employed by the company referred to in the application. The appellant appealed against that decision, on the grounds that he was a member of the family of an EEA national and had retained rights of residence in the United Kingdom; and that the appellant's removal would violate article 8 of the ECHR.
On 17 November 2008 the appellant's appeal was heard at Taylor House by an Immigration Judge, who dismissed it in a determination promulgated on 24 November. On 11 December 2008 reconsideration of the Immigration Judge's decision was ordered under section 103A of the Nationality, Immigration and Asylum Act 2002, on the application of the appellant.
The following facts were found by the Immigration Judge and are not contentious. The appellant and his Swiss national partner commenced their relationship in Thailand shortly after 5 December 1998. The couple cohabited in Thailand and a number of other countries, including Switzerland. In 2001 the appellant's partner sponsored him for studies in the United Kingdom and for around twelve months from February 2002 they lived together at an address in Hove, East Sussex. From February 2003 until August 2007 they lived together in Brighton and, thereafter, Worthing. They separated in April 2008, when the appellant's partner left the United Kingdom for Thailand. According to the appellant's statement of 13 October 2008, he understands that his partner is working in China, Indonesia and other countries in that area.
The couple had, however, entered into a formal civil partnership in Brighton on 3 February 2006 under the Civil Partnership Act 2004. In the light of the events just described, however, the appellant instituted proceedings for the dissolution of the civil partnership. At the date of the Immigration Judge hearing the appellant was awaiting an acknowledgement of service from his partner, then said to be in Thailand.
It is common ground that, if he is to succeed in his appeal, the appellant must bring himself within the scope of regulation 10 or regulation 15 of the Immigration (European Economic Area) Regulations 2006. Although the grounds of appeal to the Tribunal raised article 8 of the ECHR, the Immigration Judge found against the appellant on that ground. The appellant sought to challenge the Immigration Judge's findings on article 8 but the Senior Immigration Judge who ordered reconsideration found that this ground of appeal was not arguable and Mr Ward did not seek to pursue it at the reconsideration hearing. In any event, we find that the Immigration Judge's analysis and reasoning at paragraphs 38 and 39 of the determination disclose no material error of law. The appellant's article 8 case was based on his private life in the United Kingdom, which consisted of having friends, a home, hobbies and interests, as well as the fact that he is a practising homosexual. The Immigration Judge found that there was no evidence to demonstrate that the appellant's private life could not continue to be carried on in Thailand, from where he could remain in touch with his United Kingdom friends “by modern means of communication”. The appellant and his partner had been able to carry on a homosexual relationship in Thailand. The Immigration Judge also noted that the former partner “has now formed a relationship with someone else in Thailand, this being of a same sex nature”.
The Immigration Judge noted at paragraph 21 of the determination that Mr Ward sought to rely on a letter of 10 July 2002 from the Home Office to Messrs Clifford Chance, in which it was stated that an unmarried partner of an EEA national could rely on the immigration rules relating to the admission etc. of unmarried partners (now paragraph 295A et seq.). The Immigration Judge rejected that submission, on the basis that the appellant could not bring himself within the terms of the rules. The appellant did not seek to challenge this finding in the application for reconsideration and, although Mr Ward referred us to the Clifford Chance letter, he did not seek to rely upon it. In any event, both at the date of the decision appealed in this case and subsequently, the parties were not living together and the partner was not present in the United Kingdom.
The relevant provisions of regulation 10 of the 2006 Regulations are as follows:–
“10.-(1) In these Regulations, ‘family member who has retained the right of residence’ means …a person who satisfies the conditions in paragraph …(5).
…
(5) A person satisfies the conditions in this paragraph if –
(a) he ceased to be a family member of a qualified person on the termination of the marriage or civil partnership of the qualified person;
(b) he was residing in the United Kingdom in accordance with these Regulations at the date of the termination;
(c) he satisfies the condition in paragraph (6); and
(d) either –
(i) prior to the initiation of the proceedings for the termination of the marriage or the...
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