Yb (Eea R 17(4))
| Jurisdiction | England & Wales |
| Judge | Senior Immigration Judge Storey |
| Judgment Date | 24 April 2008 |
| Neutral Citation | [2008] UKAIT 62 |
| Court | Asylum and Immigration Tribunal |
| Date | 24 April 2008 |
[2008] UKAIT 62
THE IMMIGRATION ACTS
Senior Immigration Judge Storey
Senior Immigration Judge McKee
For the Appellant: Miss D Qureshi of Counsel instructed by C K Solicitors
For the Respondent: Mr J Wells, Home Office Presenting Officer
YB (EEA reg 17(4) — proper approach) Ivory Coast
1. Neither the Citizens Directive (2004/38/EC) nor regulation 17(4) of the Immigration (European Economic Area) Regulations 2006 confers on an “other family member” or “extended family member” of an EEA national exercising Treaty rights a right to a residence card; consistent with the Directive, reg 17(4) makes it discretionary.
2. In deciding whether to issue a residence card to an extended family member of an EEA national under reg 17(4) the decision-maker should adopt a three-stage approach so as to:
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(a) first determine whether the person concerned qualifies as an extended family member under reg 8 (in this case, to determine whether the appellant was “in a durable relationship”).
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(b) next have regard, as rules of thumb only, to the criteria set out in comparable provisions of the Immigration Rules. To do so ensures the like treatment of extended family members of EEA and British nationals and so ensures compliance with the general principle of Community law prohibiting discrimination on the grounds of nationality. The foregoing means that for reg 17(4) purposes the comparable immigration rules cannot be used to define who are extended family members, but only to furnish rules of thumb as to what requirements they should normally be expected to meet. The fact that a person meets or does not meet the requirements of the relevant immigration rules cannot be treated as determinative of the question of whether a residence card should or should not be issued.
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(c) ensure there has been an extensive examination of the personal circumstances of the applicant/appellant. It may be that in many cases such an examination will have been made in the course of assessing the applicant's position vis a vis the immigration rules. But in principle the third stage is distinct, since the duty imposed by the Directive to undertake “an extensive examination of the personal circumstances…” necessitates a balancing of the relevant factors counting for and against the issuing of such a card. It would be contrary to Community law principles to base refusal solely on the fact that a person is an overstayer who falls foul, for example of para 295D(i): see by analogy Case C-459/99 61999CJ0459">MRAX v Belgian State [2002] ECR I-6591).
3. Assessment of a person's individual circumstances done by reference to Article 8 of the ECHR, can form part (even a large part) of the requisite “extensive examination”, since: what matters is that there is a balanced consideration in the round. But it must be related to the exercise of reg 17(4) discretion: see MO (reg 17(4) EEA Regs) Iraq [2008] UKAIT 00061..
4. Regulation 17 is subject to the “public policy” proviso in reg 20(1): see reg 17(8). If (but only if) the respondent invokes reg 20(1) can that constitute a proper basis for refusing to issue a residence card, irrespective of the position under reg 17(4).
The appellant, born on 10 May 1986, is a national of Ivory Coast. She claimed to have entered the UK as a minor on 5 September 2000 using a false French passport. An asylum application made on her behalf in 2001 was refused on 2 February 2002 but on the same date she was granted ELR until 8 May 2004. An application for further leave to remain was refused on 22 July 2004 and her appeal against that refusal was unsuccessful.
On 29 December 2005, by which time she had become an overstayer, she applied for a residence document on the basis that she was, in terms of the Immigration (European Economic Area) Regulations 2000 (“the 2000 Regulations”) the dependant an EEA national, a Mr D who was a French national. They submitted that they had been in a relationship since September 2003. By the time the respondent made a decision on her application, on 9 October 2007, the 2000 Regulations had been replaced by the Immigration (European Economic Area) Regulations 2006 (SI/2006/2003) (“the 2006 Regulations”), which had retrospective effect such that her application stood to be considered under reg 8(5) of the 2006 Regulations as that by an unmarried partner seeking a residence card on the basis that she was “in a durable relationship” with an EEA national exercising Treaty rights in the United Kingdom. Whilst accepting that the couple had been in a durable relationship, the respondent noted that the appellant did not have valid leave to remain at the time of her application. “In the circumstances,” it was stated, “it is not considered appropriate to issue you with a Residence Card”. It was further stated that “[t]his consideration has taken into account the United Kingdom's obligations under the ECHR … with specific regard to Article 8 …”. There were said to be no insurmountable obstacles to the appellant's partner accompanying her to the Ivory Coast and so the refusal of a residence card did not amount to an interference with her right to family life. Even if her partner was unable or unwilling to accompany her, that would not constitute an unlawful interference with her family life. It was also considered he could “remain in the United Kingdom and support any application she made from abroad to return with a view to settlement as the unmarried partner of an EEA national exercising a treaty right in the United Kingdom”.
In a determination notified on 19 December 2007, Immigration Judge Traynor dismissed the appellant's appeal. He considered the appellant was caught by the provisions of reg 20(1) of the 2006 Regulations concerning public policy, public security or public health. The appellant was successful in obtaining an order for reconsideration and so the matter comes before us. The grounds for reconsideration contended first of all that the Immigration Judge had erred in dismissing the appeal on the basis that the appellant was caught by the provisions of reg 20(1). Reg 20(1) had not been invoked by the respondent expressly and the Immigration Judge was wrong, it was said, to reason that the respondent had relied “implicitly” on it.
The Immigration Judge was also said to have applied too restrictive an interpretation of the “public policy” proviso under reg 20(1), in that he failed to have regard to reg 21(5)(a)-(d) which provide that decisions taken under the public policy proviso should be based on the personal conduct of the individual concerned which must “represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society” and should not be made for the purpose of general prevention or of deterrence of others.
The second ground for reconsideration alleged a failure on the part of the Immigration Judge to consider the appellant's particular circumstances before assessing whether it would be disproportionate to remove the appellant to Ivory Coast. The third ground alleged a failure to follow the European Court of Justice (ECJ) case of MRAX (Case C-459/99 Mouvement contre le racisme, l'antisemitisme et la xenophobie ASBL (MRAX) v Belgian State [2002] ECR 1-6591).
The relevant provisions of the 2006 Regulations are as follows:
“Regulation 6 (Qualified person)
(1) In these Regulations, “qualified person” means a person who is an EEA national and in the United Kingdom as-
(a) a jobseeker;
(b) a worker;
(c) a self-employed person;
(d) a self-sufficient person; or
(e) a student.
…
Regulation 8 (Extended family member)
(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).
…
(5) A person satisfies the condition in this paragraph if the person is the partner of an EEA national (other than the civil partner) and can prove to the decision maker that he is in a durable relationship with the EEA national.
…
Regulation 17 (Issue of residence card)
…
(4) The Secretary of State may issue a residence card to an extended family member not falling within regulation 7(3) who is not an EEA national on application if-
(a) the relevant EEA national in relation to the extended family member is a qualified person or an EEA national with a permanent right of residence under regulation 15; and
(b) in all the circumstances it appears to the Secretary of State appropriate to issue the residence card.
(5) Where the Secretary of State receives an application under paragraph (4) 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.
…
(8) But this regulation is subject to regulation 20(1).
…
Regulation 20 (Refusal to issue or renew and revocation of residence documentation)
(1) The Secretary of State may refuse to issue, revoke or refuse to renew a registration certificate, a residence card, a document certifying permanent residence or a permanent residence card if the refusal or revocation is justified on grounds of public policy, public security or public health.
…
Regulation 21 (Decisions taken on public policy, public security and public health grounds)
…
(5) Where a relevant decision is taken on grounds of public policy or public security it shall, in addition to complying with the preceding paragraphs of this regulation, be taken in accordance with the following principles-
(a) the decision must comply with the principle of proportionality;
(b) the decision must be...
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