FD (Algeria) v Secretary of State for the Home Department

This is an application for permission to appeal a determination of the Asylum and Immigration Tribunal in respect of Mr FD. The application raises some points of European Union Law, upon which it seemed to Brooke LJ (who granted permission to consider the matter on paper), and it seems to me, that it is desirable for this full court to have an opportunity to express an opinion.

The facts need only be stated in very limited compass. The appellant is a citizen of the Republic of Algeria. It is not known when he came to this country. He was issued with a European Union resident document in August 2001, valid for seven years, on the basis that he was then the spouse of a national of the Republic of Portugal. That marriage, unfortunately, broke down. He then reapplied for a further residence card, on the basis of a relationship with a lady who is a national of the Republic of France, with whom he had been living since July 2004. That application was refused by the Secretary of State. The appellant appealed that refusal to the AIT.

The background to these proceedings are the regulations made by this country transpose into English law the requirements of Directive 2004/38 of the European Community, which addresses the rights of citizens of the Union and their family members to move and reside freely in the territory of Member States.

I shall direct myself to the Directive in considering this case. Our attention was drawn to recital 6 of the Directive, addressing what is described as the unity of the family in a broad sense: that is to say, persons who are not family members, but who are members of the wider family so defined. That matter is addressed in more detail at Articles 2 and 3 of the Directive. Article 2, in effect, provides that there is a right of entry to this country for family members of a citizen of the Union, as Mr FD’s partner is, and defines who are to be considered as family members. That definition does not extend to this applicant, because he is neither the spouse of his partner nor may register partnership with her under the Civil Partnership Act.

The Directive then goes on to deal in Article 3 with what are described as “other family members”. Article 3(2)(a) deals with certain persons who are dependants of the household of the Union citizen, without being a member of the family; and Article 3(2)(b) addresses what is the present case:

“…the partner with whom the Union citizen has a durable relationship, duly attested.”

Then, in accordance with recital 6, already referred to, the article goes on to say this:

“The host Member State shall undertake an extensive examination of the personal circumstances and shall justify denial of entry or residence to these people.”

In this case, in contradistinction to a number of cases pending in this court (but, equally, that concern themselves with this Directive), it is accepted that the applicant is an “other family member” of the Union citizen. That is because the immigration judge who first heard this matter accepted that he indeed had a “durable relationship” -- those were the terms used -- with the lady who is the citizen of the Republic of France. He therefore qualifies, if that is the right word, under Article 3(2)(b) of the Directive. The Asylum and Immigration Tribunal had then to consider whether he had a right of entry to this country. It pointed out, in paragraph 4 of its determination, that he was not entitled to residence in this country, because the terms of Article 3(2)(b), already set out, confirm a discretion of the Secretary of State, reflected in the regulations, as to whether or not (in time) to allow the person to enter.

That discretion was exercised by the Secretary of State adversely to the applicant. The two grounds upon which the Secretary of State relied and which the Asylum and Immigration Tribunal upheld as being open to him, were: first, that the applicant was an over-stayer, which is undoubtedly the case; and secondly, that the Secretary of State has a policy of treating unmarried partners of EEA nationals in a manner which is, in substance, no different from the treatment of unmarried partners of British citizens. Had this gentleman been in a partnership with a British citizen, as opposed to a citizen of another European Union country, he would not have qualified under the Secretary of State’s current policy, because he would not have been in the relationship for the required period of time.

Complaint is made about that determination, originally on two grounds. The first ground appeared on first sight, and appeared to Sir Henry Brooke (who considered this matter on paper), to be an attempt to challenge the conclusion of the Asylum and Immigration Tribunal in paragraph 4 of its determination, already set out; that is to say, it appeared to be an assertion that, on the basis of Article 3(2) of the Directive, the applicant had a substantive right, effectively in the same terms as that of a full family member, to enter this country without there being any discretion on the part of the Secretary of State to exclude him.

Now, that argument, I have to say, if it was the argument intended, is plainly not right. The construction of Articles 2 and 3 of the Directive makes it absolutely clear that the person who is an other family member, or a partner with whom the Union citizen has a durable relationship, is in a different position from a family member, because it is specifically envisaged that the Secretary of State will conduct an examination of his position before allowing him entry -- something he could not do if he had a substantive right to enter as a partner of a citizen of the Union.

After some helpful discussion this morning with Mr De Mello, who appears for the applicant, Mr De Mello agreed -- and I am afraid that if he did not agree, it is my view -- that if and to the extent that the first ground asserted that there was a substantive right to enter without more, then it is unfounded, and I would not give permission for it in those terms. However, Mr De Mello effectively said that he did not stand on that ground, insofar that he had ever been on that ground, but the first ground to appeal should be regarded as preliminary or introductory to the second ground of appeal.

I am content, for my part, to treat the matter in that way: that is to say, to concentrate on the second ground of appeal. It is that ground that raises the issues in respect of the law of European Union for which I would grant permission to appeal. I do not wish to say more about this than is necessary to give an indication as to why these issues arise. Anything I say, of course, will not bind any subsequent constitution of this court.

The substance of Ground 2 is that it complains of the way in which the examination of the personal circumstances required by Article 3(2)(b) was conducted in this case. As we have seen, the Secretary of State had two reasons for objecting to the applicant’s presence. One was that he was illegally in this country; and, secondly, that he had not been here or had not been in the partnership for long enough to qualify, had he been the partner of a British citizen.

I take those matters in turn. The objection to the weight placed upon the unlawfulness of the applicant’s presence seems to me to have two aspects to it. The first, which seems to be the substance of the argument, is that it was not open to the Secretary of State to take that consideration into account at all. Secondly, however, if it was open to him to take that consideration into account, he had not given any adequate reason as to why, in this case, it was a relevant consideration.

I would grant permission for both of those points to be argued. It is only right to say that I have serious doubts about the validity of the first point. The principal community authorities that are cited in support of it are Carpenter and Ackrich. I would need persuading, that either of them carry this point. Carpenter is a difficult case, because it appears that before the European Court of Justice those representing Her Majesty’s Government did not take the point that Mr Carpenter’s spouse was unlawfully in the country, and therefore the marriage could not be relied on under Article 8 under well known jurisprudence, set out in the jurisprudence of this country in the case of Mahmood and recognised in the European Court of Justice. It is at least a potential and legitimate consideration, under Article 8(2), to pay attention to the enforcement of immigration law when determining Article 8 cases.

So far as Ackrich is concerned, it seems to me that what the court said there was no more than that regard must be had to respect for family life under Article 8: something that, if applied, would bring with it such aspects of Article 8 as are legitimately related to the enforcement of immigration control.

However, the second aspect of this complaint seems to me to have a good deal more force. If the Secretary of State is going to seek to rely upon the unlawful presence of an applicant, it is certainly arguable that he needs, in accordance with his obligation to examine the whole of the circumstances, to provide more reasoning and more circumstantial explanation of his position than he provided in this case.

The second aspect of the complaint relates to the use of the test applied to the partners of British citizens in addressing a position of a person like the applicant. The Secretary of State said, and all the tribunals so far have held him to be justified in saying, that he wished to apply the same rules to British subjects as he does to European Union citizens. That might appear to be an obvious point of common sense, but such is not necessarily a safe guide when one is dealing with the requirements of the law of the European Union. In domestic law it is open within certain limits to the national authorities to apply what tests they like with regard to who may enter the country and who may not; but their liberty to do that is limited when they are dealing with citizens of the Union, such as the applicant’s partner is.

Mr De Mello, I think, wants to argue in that connection that the concept of being a partner with whom the Union citizen has a durable relationship is an autonomous community concept. The immigration judge has found that such a durable relationship exists, and therefore, the argument goes, that is the end of the matter. Once a durable relationship is found, the Secretary of State cannot exclude the citizen, even though it is somebody who he would not allow in, in respect of a relationship with a British subject.

I am again sceptical about that argument, though I would not prevent its being adduced, because if it is correct it is difficult to see how that category of person (a partner with whom the Union citizen has a durable relationship) can ever be subject to the requirements of Article 3(2): that is to say, that the host Member State shall undertake an extensive examination of personal circumstances. The second aspect of this argument, however, again, is more forceful: that is to say, that in the extensive examination of the position of the partner and the applicant that Article 3(2) requires, it is either not open to the Secretary of State to rely upon domestic requirements for residence here; or, if it was open to him, he should have explained very much more fully why, in this particular case, the details of the applicant’s relationship was a reason for not granting him entry under the rules of the European Union.

I would therefore, for my part, grant permission effectively to argue the second of the grounds set out in Mr De Mello’s submissions. I think it would be helpful to the court that has to hear this case if Mr De Mello, having reflected upon this judgment, were to consider whether it might assist to redraw his submissions, to concentrate on the points effectively for which permission has been granted. Subject to any view that my Lord has, I would grant him 28 days in which to perform that task.

Since there are some not entirely easy points involved in this case, I would think it appropriate to order a hearing before a court of three Lords Justices, and I would think that a day would be the appropriate time, again subject to any better view that my Lord may have. In those terms, I would grant permission.

I agree, including as to the directions for the full hearing which my Lord has given.