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 I-6591 ).
The relevant provisions of the 2006 Regulations are as follows:
So far as provisions of the Citizen's Directive (EC/38/2004) are concerned, the following have possible relevance:
Plainly the appellant is an "extended family member" under the 2006 Regulations (the term used within the Citizens Directive is "other family member": see Article 3(2)(a)). We are in no doubt that the Immigration Judge materially erred in law in treating reg 20(1) as relevant to his case. The respondent's decision to refuse him a residence card was based exclusively on reg 17. The refusal letter stated on page 2:
The respondent went on to consider whether this refusal was compatible with Article 8 of the ECHR, but there was no attempt to invoke (via reg 17(8)) reg 20(1). Despite noting at para 28 that the respondent relied on reg 17, the Immigration Judge proceeded to assume that the respondent had also relied on reg 20(1): see paras 36, 37.
Furthermore, insofar as the Immigration Judge sought to ground his own decision on reg 20(1), he failed to recognise that this provision does not make refusal to issue residence documentation mandatory if the refusal or revocation is justified on the grounds of public policy, public security or public health; it is discretionary ("the Secretary of State may refuse…") .
It is particularly important to bear in mind that Community law regards "public policy" grounds as requiring a restrictive approach and due regard to procedural safeguards: that is confirmed by recitals 22-23 (so far as family members are concerned) and to some degree by recital 27 (so far as both family members and "other family members" are concerned) of the Citizens Directive. The Secretary of State not having sought to justify the refusal on reg 20(1) grounds, it was not open to the Immigration Judge to attempt to supply that justification himself.
In fairness to the Immigration Judge, reg 20(1) was drawn to his attention by the appellant's representatives who sought to argue that the schema of the 2006 Regulations only allowed for a refusal to issue a residence card under reg 17(4) on public policy grounds for refusing to issue a residence card under reg 20(1): see paras 16 and 30. However, there is no proper basis for reading these two regs as mutually exclusive in this way. If it had been the intention of the drafters to provide in respect of extended family members that refusal to issue a residence card could only be based on public policy, health and security grounds, they would have said so. In another section of the Regulations (within the same Part 4) there is, for example, reg 19(5) which stipulates that a person who has a right to remain in the United Kingdom by virtue of leave granted under the 1971 Act "must not be removed … " unless his removal is justified on the grounds of public policy, public security or public health in accordance with Regulation 21." Further, reg 17(8) states that reg 17 "is subject to regulation 20(1)". That clearly conveys that even if an applicant benefits from an exercise of reg 17(4) discretion, he can still be refused under reg 20(1).
It was the appellant's position that to construe regs 17 and 20 as conferring two freestanding discretions would be contrary to case law of the European Court of Justice (ECJ) on free movement of qualified persons. However, this overlooks that all the cases on which the appellant relies relate to persons who are family members of EEA nationals/Union citizens. They do not relate to "other family members"/extended family members as such. The distinction is crucial because, as the respondent pointed out in the refusal letter, it is only the former who have an automatic right under the Citizen's Directive to join or accompany an EEA national who is exercising a free movement rights: see Articles 2(2) and 3(1). The position of "other family members"/extended family members, including unmarried partners of EEA nationals, is governed by Article 3(2). Article 3(2) imposes a duty on Member States going no further than a duty to "facilitate" the entry and residence of such persons "in accordance with their own domestic legislation". That is reinforced by recital 6 which states that the situation of other family members "should be examined by the host Member State on the basis of its own national legislation …": see further KG (Sri Lanka ) [2008] EWCA Civ 14 ; AP and FP (Citizens Directive Article 3(2); discretion; dependence) India [2007] UKAIT 00048 .
That is not to say that the duty to facilitate is unconstrained by general principles of Community law, including the need to act consistently with the guarantees afforded by the ECHR (we discuss the latter later). Recital 6 makes clear that this duty is also subject to the prohibition of discrimination on grounds of nationality and that national examination must take into consideration such person's "relationship with the Union citizen or any other circumstances such as their financial or physical dependence on the Union citizen". A number of ECJ cases dealing with family members contain valuable guidance (including as we shall see, MRAX ) on the application of these general principles. But the Citizens Directive does not otherwise fetter the right of Member States to apply rules of national law under domestic immigration legislation. We shall return to the relevance of these general principles later.
As already noted, the Immigration Judge concluded that the decision to refuse the appellant a residence card was not contrary to her Article 8 rights. The grounds for reconsideration contended that this conclusion manifested a further legal error on the judge's part. We accept that the Immigration Judge's treatment of Article 8 was also legally flawed albeit not quite for the reason stated. The judge's error was twofold. First, he erred in his approach to the issue of whether the decision amounted to an interference with the appellant's right to respect for family life. Despite citing AG (Eritrea ) [2007] EWCA Civ 801 , he appears to have ignored its warning against erecting a high threshold at the stage of assessing interference. Second, when he turned to consider, in the alternative, whether even assuming he had found the decision amounted to an interference, it was proportionate or not, he treated the issue as one in which he was concerned only with the legality of the respondent's decision. At paragraph 45 the Immigration Judge stated:
It may be that this was only mere carelessness in drafting on the part of the Immigration Judge and it might be said that in earlier paragraphs (paras 39-44) he had clearly conducted a merits assessment of the relevant factors arising under Article 8 (albeit he dealt with them solely in relation to the issue of interference). But in our judgment, it was incumbent on him, particularly in the light of the guidance given by the House of Lords in Huang [2007] UKHL 11 (which he cited later in paragraph 45) to show that he applied that guidance rather than the "review" approach suggested by his wording of matters in the opening sentence of paragraph 45.
There was no Rule 32(2) notice served in this case and since there is no challenge to any of the Immigration Judge's findings of fact, we proceed to consider what decision to substitute for that of the Immigration Judge.
Dealing first with legality, in our judgement the decision of the respondent to refuse to issue the appellant a residence card was in accordance with the law, including Community law. To understand our reasons some background explanation is in order.
Reg 17(4) only applies if it is first of all established that a person is an extended family member as defined in reg 8; if that is not established, the decision-maker goes no further. Assuming that a person has established he or she is an extended family member, two features of reg 17 are vital. First, reg 17(4) confers a discretion on the respondent to issue a residence card if "[i]n all the circumstances it appears to the Secretary of State appropriate to issue the Residence Card" (reg 17(4)(b)). As already noted, the present Citizens Directive at Article 3(2) permits Member States to facilitate the entry and residence of "other family members"/extended family members "in accordance with [their] national legislation". Second, reg 17(5) (mirroring Article 3(2) of the Directive) imposes a duty on the Secretary of State to "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". In our view these twin features assist us in understanding the proper approach to how the reg 17(4) discretion should be exercised. Assuming a person has shown he or she is an extended family member, the decision maker must first examine the person's position under comparable national law provisions; (we shall call this the "renvoi to national law" requirement) and he or she must further ensure that the examination has taken into account all the relevant personal circumstances of the applicant. Let us now look at each of these in turn.
The wording of Article 3(2) of the Directive clearly permits Member States to decide the cases of "other family members"/extended family members of Union citizens/EEA nationals in accordance with national law and there is nothing in Community law which prevents the United Kingdom from providing in reg 17(4)(b) that issue of a residence card for such persons is a matter for discretion. Whilst reg 17(4)(b) does not say so, we have no difficulty in accepting that the respondent is entitled when exercising this discretion to have regard to comparable provisions in the Statement of Changes in the Immigration Rules HC395 as amended (hereafter "the immigration rules"). To do so ensures, at least in some respects, like treatment of extended family members of EEA nationals with that accorded by these rules to extended family members of British nationals. The prohibition on discrimination on the grounds of nationality is a general principle of Community law and is also a principle expressly identified in recital 6 of the Citizens Directive (which deals specifically with other/extended family members).
However, there are important caveats which must attach to any renvoi to national law for reg 17(4) purposes. One is implicit in what we stated earlier: clearly such renvoi must focus on whether extended family members can meet certain substantive requirements; it must not seek to define terms which are Community law terms (such as "durable relationship"). Second, whilst the principle of non-discrimination justifies renvoi to the immigration rules, it must be borne in mind that such rules do not provide a precise comparison. The rules which are most similar, those dealing with dependent relatives and unmarried partners, refer to persons applying for settlement, whereas a residence card is issued only for five years or "the envisaged period of residence in the United Kingdom of the qualified person" (reg 8(6)). Thirdly renvoi must be to national law provisions that relate to in-country applications. In this case, for example, one should look at para 295D, not para 295A. The reason for this is because provision is only made for the issue of a residence card in-country. A fourth caveat is implicit in what we have already stated in the preceding paragraph: renvoi must be done in conformity with general principles of Community law. A further and interrelated caveat is this. We cannot see that such reference can be assimilated to an examination of whether the comparable national law criteria are met. To seek to reduce it solely to such criteria would run contrary to a general principle of Community law, namely that of proportionality. It would also overlook that the power given by the Directive to decide such cases "in accordance with national legislation" is paired with another Directive principle or requirement that there be "an extensive examination of the personal circumstances". Neither principle is necessarily met simply by a mechanical checking of the comparable national law criteria. It may be in many cases that the assessment of an applicant's position under the relevant immigration rules covers much of the ground required to achieve an "extensive examination". But that will not necessarily be the case, if for example, the decision-maker has decided that the applicant fails under just one of the requirements of the relevant immigration rules and goes no further. The comparable immigration rules can only provide guidance, therefore, on what requirements an applicant under reg 17(4) should normally be expected to meet.
We are fortified in our understanding of how the recourse to national law should be carried out by two further considerations. One is that the Immigration Rules include, of course, para 5 (headed "Application") which states:
Yet (save for para 290A whose scope is limited to the "present and settled" requirement) there is no express indication that any provisions within Part 8 of the immigration rules apply to those falling within the 2006 Regulations. (And within the 2006 Regulations themselves, at reg 8(4), the immigration rules are only said to apply to dependent relatives; there is no express indication of such rules applying in relation to persons in a durable relationship).
The other consideration concerns what is said by the respondent in her internal policy instructions relating to EEA nationals and their family members.
Para 2.4 of the European Casework Instructions (updated 8 April 2008), at Chapter 2 states inter alia, that:
The IDIs (Immigration Directorate Instructions) chapter 7 Section 3 EEA nationals and Family at 5.5.2 (July 2006 is still the latest version, although we are given to understand another is due soon) state:
From the above it is clear that the policy instructions themselves recognise (at least in places) that meeting the requirements of the comparable immigration rules is not necessarily determinative: para 2 of the European Casework Instructions emphasises that "[e]ach case must be assessed on an individual basis but an example of where it might be appropriate to issue a residence card would be if the family member was very elderly or incapacitated…". In the light of our foregoing analysis, it is also clear from the above that the IDIs, at least, appear to go too far in 5.5.2, which stipulates that officers "should satisfy themselves fully that the person meets the leave to enter requirements of an unmarried partner as set out in part 8 of the Immigration Rules (other than those relating to entry clearance). " For one thing, since the subparagraph seeks to cover both pre-entry and in-country decisions ("EEA family permit or a registration certificate or residence card"), it is incorrect to specify only the rule dealing with "leave to enter". For another, one of the requirements of the unmarried partners rule (at 295D (also at 295A)) is for the couple to have been "living together in a relationship akin to marriage which has subsisted for two years or more", but there is no definition given by the Directive or the Regulations of the term "durable relationship". So the policy instructions are helpful in indicating the general approach but should not be taken as necessarily correct in every particular.
Turning to the second aspect of the exercise of reg 17(4) discretion, it seems to us that the underlying purpose of reg 17(5) (which echoes Article 3(2) of the Directive) is to ensure that the decision maker takes account of the applicant's personal circumstances in the round, looking at factors for and against exercising the discretion in his favour. The need is, to use the language of the ECJ in Case C-540/03, [2006] ECR I-5769 , Parliament v Council and Commission [2004] OJ C47/21 (which concerned a challenge to the 2003/86/EC Directive on the right to family reunification [2003] OJ L 251/12 and its compatibility with human rights standards) is for a weighing-up of the competing interests in each factual situation. It follows from this that it would not amount to an extensive examination if the decision maker were simply to decide a person should be refused a residence card because he was an overstayer: that would be to render the requisite balancing of factors for and against otiose and would thus violate the Community law principle of proportionality (as further illustrated by the ECJ case of MRAX , to which we shall turn in a moment). It would be wrong to say in this case, for example, that the appellant could not be issued a residence card solely because he failed to meet the requirements of para 295D(i). At the same time, there is no requirement as to precisely how the extensive examination is to be done; at most, via recital 6 of the Directive (and ECJ case law to similar effect), one can say it should take into account the family relationship with the EEA national/Union citizen and ensure that the circumstances considered include (if applicable) "their financial or physical dependence on the Union citizen". And in our view it would be wrong to make this more exacting a requirement than it is. Such an examination, then, must accord with general Community law principles, including that of proportionality. But the essential need is a simple one necessitating an examination in the round of the individual's personal circumstances.
For this reason, we do not think it matters, for example, whether much of the examination takes the form of the human rights examination (essentially concerned with Article 8 of the ECHR) undertaken for the purposes of the Human Rights Act, although it will of course be necessary for the decision-maker to show that circumstances taken into account in relation to Article 8 are taken into account in relation to whether a residence card is issued: that is imperative. However, a human rights examination cannot on its own amount to an "extensive examination" because its focus is on the consequence of removal following from the decision (in this case to refuse to issue a residence card), not on the refusal itself: see MS (Ivory Coast) [2007] EWCA Civ 133 , para 75. Sight must not be lost, that is to say, of the fact that the only essential need is for an examination in the round. It may also be, as we shall go on to explain, that in one respect any human rights examination may need to take a different hue than that it has in non-EEA cases, by virtue of the great importance EU law attaches to the principle of freedom of movement for persons exercising Treaty rights.
In the light of the above, let us look at how the respondent approached the exercise of discretion in the appellant's case under reg 17(4) both in terms of renvoi to national law and examination of personal circumstances.
Perusal of the refusal letter in this case shows that it was very much undertaken with national law criteria in mind (as formulated in the policy instructions we identified earlier), so that consideration was given, inter alia, to the context of the immigration rules dealing with unmarried partners. The letter pointed out that the United Kingdom had a longstanding policy of enabling an unmarried partner of a person present and settled in the United Kingdom to enter the United Kingdom in order to live with the person if their relationship met specific criteria and it specifically identified the correct in-country rule governing that policy as para 295D of HC 395.
The letter also pointed out that the criterion within para 295D relating to living together in a relationship akin to marriage subsisting for two years or more was:
In two respects this part of the letter goes too far. One is that it appears (seemingly echoing policy instructions) to treat para 295D as affording the correct definition of the term "durable relationship" so as to require two years living together. But neither the Directive itself nor the 2006 Regulations stipulate any such definition. So as a definition (as distinct from an indication of likely relevant evidence), that may well be incorrect. But we do consider the refusal letter exemplifies the legitimate importance of seeking to align the treatment of unmarried partners of EEA nationals with that of unmarried partners of UK nationals, so as to prevent discrimination on the ground of nationality. Having identified reg 8(5) as bearing a "similar immigration purpose", it was consistent with general principles of Community law (that of non-discrimination on the grounds of nationality in particular) for the respondent to treat the appellant's overstaying as an important relevant factor in deciding that it was "not .. appropriate to issue you with a Residence Card": under para 295D there is a commensurate requirement that an applicant be someone who has a valid leave to enter or remain in the United Kingdom. The second respect in which this part of the letter goes too far is that it views the immigration rules as identifying mandatory requirements. For reasons already set out, that cannot be right: they can at most afford rules of thumb only.
It was contended by Miss Qureshi that even on the assumption that the respondent was entitled to treat overstaying as a relevant factor in exercising her discretion under reg 17(4), she was not entitled to treat it as the only relevant factor or to rely simply on the mere fact of overstay, irrespective of surrounding circumstances. We would agree that a refusal decision justified solely on the basis of overstay would be contrary to Community law principles. As already noted, it would be contrary to the general Community law principle of proportionality. Applying this principle, the ECJ in MRAX at para 3 of its ruling stated that "a Member State may neither refuse to issue a residence permit nor issue an order expelling on the sole basis that his visa had expired before he applied for a residence permit"; in our view this reflects a principle that holds good for both family members and extended family members (indeed recital 6 of the proposed directive on common standards and procedures for returning illegally staying third-country nationals (COM (2005) 0391-C6-0266/2005 – 2005/0167 (COD)) states that: "[a]ccording the general principles of EU law, decisions taken under this Directive should be adopted on a case-by-case basis, based on objective criteria implying that consideration should go beyond the mere fact of illegal residence").
But we do not think that the respondent fell foul of this principle in the appellant's case. Whilst it is true that the specific statement of reasons accompanying the notice to a person liable to (s.10) removal stated:
this statement went on to say "[p]lease refer to the attached reasons for refusal for further details"; and the attached refusal letter plainly does consider the individual's specific circumstances (see para 2). Just as the letter credited the appellant with having shown she was in a durable relationship, so it counted against her that at the date of application (29 December 2005) she did not have valid leave to remain and in this regard it was plainly in the mind of the respondent that by that date the appellant had been an overstayer for over six months (since 13 April 2005), the couple had only been living together since their religious marriage ceremony in December 2004 (para 13): at the date of application, therefore, they had only been in a relationship for some 12 months. Even if the respondent wrongly considered that the criterion contained in the Immigration Rules at para 295D(vi) of two years' living together afforded a definition of the proper meaning of "durable relationship" and wrongly treated that as a mandatory requirement, the fact that the couple's relationship was at this point only 12 months old plainly did not suffice on its own to show it was durable. Further, on the evidence before the respondent the couple clearly had foreknowledge of the appellant's immigration difficulties: by the time they had lived together for two years (December 2006) the appellant's last grant of limited leave had expired over two and half years ago.
It must also be borne in mind that in considering the exercise of her regulation 17(4) discretion the respondent had considered whether it was compatible with her Article 8 obligations. We are aware that decision letters in some 17(4) cases have not always sought to link consideration of Article 8 with the exercise of discretion under this regulation. However in this case the refusal letter noted that: "This consideration [of her exercise of reg 17(4) discretion] has taken into account the United Kingdom's obligations under the [ECHR] with specific regard to Article 8". That consideration went on, in considerable detail, to consider the appellant's individual circumstances. Whilst, of course, the respondent was separately obliged under the Human Rights Act 1998 to consider whether the decision was compatible with the appellant's human rights, the terms in which the letter was set out indicate that the respondent's decision-making on both the EEA and human rights aspects of the appellant's case was informed by the same concern to conduct a wide-ranging balancing exercise, taking into account relevant factors counting for and against the appellant. That the respondent should seek to exercise her reg 17(4) discretion in this way is hardly surprising, and is indeed the approach she was obliged to take, since general principles of Community law include the principle of proportionality and ECHR norms (as an integral part of Community law). At the same time, the respondent's letter did not confine its examination to ECHR considerations (for reason given earlier, any such confinement would not have achieved an extensive examination).
We accept that the respondent did not refer expressly to all of the considerations relevant to the exercise of her reg 17(4) discretion, but we are satisfied, read as a whole, that save in one possible respect she properly identified valid reasons for refusing to issue a residence card. Our one point of doubt concerns the reference in the refusal letter to there being "no insurmountable obstacles to the appellant's partner accompanying her to the Ivory Coast…" (see para 2 above). Reliance on this factor is difficult to square with the instruction given at para 2.4 of the European Casework Instructions that when deciding whether it is appropriate in all the circumstances to issue a residence card "we must assess whether refusing the family member would deter the EEA national from exercising his/her Treaty rights or would create an effective obstacle to exercise of Treaty rights". It is also difficult to see how expecting an EEA national to accompany a partner abroad is consistent with the Community objective of free movement of Union citizens within the Community. It might be contended, in response, that to modify the approach here would violate the principle of non-discrimination between an EEA national and a British national. If it can (sometimes) be right to expect a British citizen to accompany a third-country national spouse/partner abroad, then why should it be any different for a comparable EEA national? Against that it may be doubted that the two are in the same position, at least in respect of the possibility of movement onwards to another country for family life purposes. One has come to another country to exercise Treaty rights; the other is simply in his or her own country. But since we cannot see that this consideration formed part of the respondent's essential reasons for refusing to exercise reg 17(4) discretion in the appellant's favour, we do not need to resolve this issue here.
However, we are not merely required to be satisfied that the respondent's decision was in accordance with the law, but also to decide for ourselves whether the reg 17(4) discretion should have been exercised differently. The burden rests on the appellant to show that the discretion should be exercised differently by us: see FD (EEA discretion: basis of appeal) [2007] UKAIT 00049 ( Since hearing this appeal it has come to our notice that on 10 March 2008 the Court of Appeal ordered that FD's appeal be treated as withdrawn (C5/2007/1767) in the light of the respondent withdrawing its decision in view of her acceptance that she had not considered all of FD's personal circumstances. But the Court's order in no way impugned the guidance for which FD was reported).
In our judgement the discretion conferred by reg 17(4) should not be exercised differently. Whilst we accept that the appellant began her relationship with her EEA partner at a time when she was still in the UK lawfully and that their relationship became a durable one (certainly by the time it had lasted two years), we consider that other factors, considered cumulatively, carry more weight: that at the time the appellant first met Mr D she was a person who only had limited leave to remain (until her 18 th birthday); that by the time she began living with him (in December 2004) her limited leave (until 8 May 2004) had already expired; that at the date of application she had only been living together with him for a year; that by that time she had been an overstayer for over six months; and that there was no evidence to indicate that there were any difficulties (relating for example to age, health or children) in the way of the appellant going abroad to make an application to an Entry Clearance Officer for an EEA family permit as the unmarried partner of an EEA national (see Regulation 12(2) of the 2006 Regulations) or to arrive at a UK border and seek admission as the unmarried partner of an EEA national (see reg 11(2)). In our judgment, examining whether the discretion afforded by reg 17(4) should have been exercised differently, we find that it should not: the particular facts of the appellant's case made it (and continue to make it) inappropriate in all the circumstances to grant the appellant a residence card.
For the above reasons we conclude:
Signed Date
Senior Immigration Judge Storey