H, R (on the application of) v H

This is an application for judicial review of a decision by the Secretary of State who issued directions for the removal of the applicant’s mother to Turkey. By a judgment delivered after hearing argument on notice on 23 April 2007, Sullivan J refused judicial review permission. Permission was however granted by Sir Henry Brooke on 23 July 2007. Sir Henry directed that the judicial review application be retained in the Court of Appeal.

The applicant’s mother is a Turkish national born in 1978. On 22 August 2002 she applied in Turkey for an entry clearance to come to the United Kingdom as the fiancée of the man who was to become the appellant’s father. However in November 2002 before a decision was reached on her application, she entered this country illegally and married the applicant’s father on 13 December 2002. On 17 September 2003 the earlier entry clearance application was refused. In June 2004 the applicant’s mother applied for leave to remain in the United Kingdom as the spouse of a person settled here. That was refused. On 15 December 2004 she made a further like application. In the course of an immigration officer’s visit she was detained. She applied for asylum on 1 May 2005. However that application was withdrawn and she was released.

The applicant was born in the United Kingdom on 6 September 2005. On 11 November 2005 the mother’s application for leave to remain as the spouse of a settled person was refused. In the decision letter the Secretary of State also considered Article 8 of the European Convention on Human Rights, dealing of course with the right to respect for family and private life; but for reasons given he held that the mother’s removal would not be disproportionate to the legitimate aim of immigration control. The letter was accompanied by a decision to issue removal directions to Turkey. The mother appealed that latter decision, as was her right, to the Asylum and Immigration Tribunal (the AIT).

By a determination promulgated on 24 February 2006 the AIT dismissed the appeal. The immigration judge found that neither the father nor the mother was a credible witness. The applicant, who of course was then only some five months old, could travel with his mother to Turkey and her removal would involve no violation of Article 8. She applied for reconsideration of this decision but that was refused on 8 March 2006.

The applicant’s father was granted indefinite leave to remain in the United Kingdom on 24 September 1999 and in consequence the applicant himself, as the legitimate child of a father settled here, was born a British citizen. The father has a bad criminal record. In consequence on 8 June 2006 the Secretary of State directed that he be deported from the United Kingdom on the ground that his deportation would be conducive to the public good. His appeal against that decision was dismissed by the AIT on 29 December 2006 but on 19 January 2007 a reconsideration of that determination was ordered and Mr Beard has told us this afternoon that the AIT’s earlier determination has now been upheld by a decision dated 31 December 2007.

This judicial review application was lodged in the Administrative Court on 22 June 2006. The applicant, not his mother, was the claimant -- that is presumably a recognition that she has no relevant free standing rights of her own. Permission to appeal was refused on the papers by Lloyd Jones J on 27 October 2006 but the application was renewed and, as I have said, came before Sullivan J on 23 April 2007.

The challenge is in substance directed to the decision to issue removal directions of 11 November 2005, which of course had already been the subject of a wholly unsuccessful appeal. The essence of the claim arises from the fact that an EU citizen moving to an EU Member State of which he is not a national is not only entitled to reside in the host state but also, subject to certain conditions, to have family members, including parents who might of course be non-EU nationals, reside there with him (see Directive 2004/38/EC), whereas an EU citizen residing in his own Member State has no such rights under the Directive: the conditions of his residence and the residence of those depending upon him are wholly governed by municipal law which, on the facts of this case as I have described them, does not allow the applicant’s mother to reside in the United Kingdom with him. In consequence Mr Bedford for the applicant submits that if his client were a national of any other Member State and came to reside here, then -- by force of Directive 2004/38 -- his mother would be allowed to reside with him here; and if, being a British national, he were to move to another Member State his mother would be allowed to reside with him there.

On the face of it there is an anomalous difference between these two situations. The question is whether that generates any rights upon which the applicant may rely. The primary submission is that this state of affairs constitutes discrimination against the applicant, contrary to Article 14 of the European Convention on Human Rights taken with Article 8; moreover, says Mr Bedford, this is so even if on the facts there is no violation as such of Article 8. The enjoyment of a substantive Convention right may be affected in a manner amounting to discrimination under Article 14 even if the right is not actually breached: see for example per Sedley LJ in Westminster City Council v Morris (CA) [2005] EWCA Civ 1184; and, with respect, there is much other authority to the same effect.

There was also a submission pursued before Sullivan J without “any great enthusiasm,” as the judge noted (paragraph 3), that the mother’s removal to Turkey would in fact violate the applicant’s Article 8 rights without any reference to Article 14. Sullivan J thought nothing of that argument and nor do I. The applicant is now two years and four months old. He was nineteen months old at the time of Sullivan J’s decision. As the judge stated, he could simply accompany his mother to Turkey; even if his Article 8 rights might in some way be touched by his mother’s removal, there would be nothing remotely like so substantive an intrusion into those rights as to amount to a prima facie violation.

In those circumstances no question of proportionality under paragraph 2 of Article 8 arises. If it did, I would without hesitation hold that, given the history and again the applicant’s age, the mother’s removal would plainly be proportionate to the legitimate aim of immigration control. In fairness Mr Bedford effectively accepted this morning in the course of argument that the mother’s removal would not amount to a violation as such of the applicant’s Article 8 rights.

I may turn then to the substantive argument on Article 14. It arises as I have said from a perceived disparity between the rights of an EU citizen living in another Member State and the right’s of an EU citizen living in his own Member State.

I should say first that I have, during the course of the argument, entertained some doubt whether the applicant’s Article 8 right to respect for his family life would be touched or, as it has sometimes been put, engaged at all by his mother’s removal to Turkey. The Secretary of State’s decision would merely mean that this two year old would live with his mother in Turkey rather than here. However the authority of Abdulaziz, Canales & Balkandali v UK [1985] 7 EHRR 471 may be thought to offer some assistance to Mr Bedford. That decision of the European Court of Human Rights was concerned with the impact of ECHR rights on a purely domestic regime, namely the United Kingdom Immigration Rules dealing with a person’s claim to enter this country as the spouse of another settled here. The case in particular was directed to a disparity between the rules that applied when it was the husband making the application and those which applied when it was the wife. Paragraphs 59-65 of the judgment, which I will not cite, explain why the European Court of Human Rights concluded that Article 8 applied to the case. In light of that reasoning, which suggests at least that no more need be shown than that the decision sought to be impugned arises in the field or is in some sense within the ambit of the substantive right in question, it may be said that on the facts here we are in the field or within the ambit of Article 8, so as to open the door to a possible argument based upon Article 14. However, as Mr Beard has been at pains to point out, there are possible difficulties with this reasoning. I propose to assume without deciding that the impugned decision in this case does arise within the ambit of Article 8 in order to consider Mr Bedford’s Article 14 argument. I should note that if this issue as to the ambit of Article 8 were critical to the case it would, I apprehend, have to be the subject of fuller argument than we have heard and a more considered final determination.

In any event, however, in my view the Article 14 argument must fail. First it would appear that if the applicant were a non-British EU national who came here, his mother, in the events which have happened, might not be entitled to a derived right of residence under the Directive for the reason that she has at no point lawfully entered the European Union. Mr Beard refers to SSHD v Akrich Case C-109/01 [2004] QB 756 at paragraph 50, where this is said:

“In order to benefit in a situation such as that at issue in the main proceedings from the rights provided for in article 10 of Regulation No 1612/68, the national of a non-member state, who is the spouse of a citizen of the Union, must be lawfully resident in a member state when he moves to another member state to which the citizen of the Union is migrating or has migrated.”

However the position is not straightforward. Mr Bedford has referred to learning of the European Court of Justice to show that the statement there made in Akrich does not constitute a general rule so as to undermine the proposition that his client’s mother would, or at least might, be entitled to stay with him here if he were exercising EU rights -- see Case C-1/05 Yunying Jia v Migrationsverket (ECJ) [2007] QB 545 paragraphs 25-33.

Critically however it is to be had in mind that discrimination arises where like cases are treated differently, and unless it is a case where like cases are treated differently there is no discrimination. The instance of an EU citizen living in another Member State and that of the EU citizen living in his home Member State are not to my mind like cases. The former but not the latter is exercising his right of free movement under EU law to which the right to have his family with him is, or at least may be, an adjunct. It is trite law that the freedom of movement provisions of the EU treaty and subordinate legislation do not affect purely internal situations -- see Uecker and Jacquet v Land Nordrhein-Westfalen C64/96 and C65/96 [1997] ECR 1-3 171 and other authority there cited. It is also clear that EU law recognises that immigration control is a matter for Member States -- see Ackrich, already referred to, paragraphs 49 and 61.

EU law does not affect or circumvent the provisions and operation of national immigration law as it applies to persons who are not exercising any EU rights. The free movement provisions, including those of Directive 2004/38, constitute a body of law whose scope is bounded by its very purpose, namely the removal of obstacles to movement within the EU. Thus it is no coincidence that those provisions have no application to persons not exercising or seeking to exercise such rights of free movement. They would have no business doing so. This position moreover is in my judgment perfectly consistent with the decision of the European Court of Justice in Zhu and Chen v SSHD, Case C-100/02 [2005] QB 325. That case concerned the unusual situation whereby a child born in one Member of State, in fact in Northern Ireland, had the nationality of another, the Republic of Ireland. The free movement rights given by the treaty were in play although there was not actually any movement from one State to another. It throws no light on what is frequently called in the jurisprudence a purely internal situation. It is true that it suggests that in the view of the Court of Justice a child enjoying community free movement rights should have the right to have his or her carer live with him; but I repeat that it was not dealing with a purely internal situation.

Mr Bedford for his part submits that the two cases -- that of the EU citizen living in another Member State and that of the EU citizen living in his home Member State -- are like cases so far as rights to have a parent resident with the person in question and there is discrimination based on nationality. In my judgment this mis-characterises the situation. What we are confronting in this case as I see it is the operation of two distinct legal regimes having distinct legal purposes which by definition do not touch each other. Accordingly the case of the EU citizen living in another Member State and that of an EU citizen living in his home State, far from being alike, are critically different. The difference of impact between EU law in the first case and municipal law in the second does not therefore amount to discrimination. Nationality is of course part of the backdrop or context; but the driving force of the circumstances in the applicant’s case is the mother’s immigration status, whereas the driving force of the other case, the EU citizen in another Member State, is the exercise of free movement rights.

The applicant’s argument leads to this conclusion. In any area where a substantive ECHR right is “engaged” or involved, the applicable domestic law must be no less generous than provisions of EU law operating in a like field or context. Mr Bedford accepted this morning without cavil this consequence of his argument. In my judgment, however, neither Article 14 nor any other legal norm or rule of which I am aware suggests or vouchsafes so large a conclusion.

All this is as I see it perfectly consistent with Mr Bedford’s submission that ECHR rights are fundamental to, or an inspiration of, community law. ECHR rights colour EU law in areas falling within the scope of EU law. But they do not enlarge that scope. In this context I may say with respect that I do not find Mr Bedford’s references to Re M (inaudible) or Marshall v UK App No 41571/98 [2001] to be at all helpful.

For all these reasons it seems to me that Sullivan J was right to hold that there was no discrimination within the meaning of Article 14 in this case and I would dismiss the appeal. In the circumstances, if my Lords agree, it is unnecessary to consider, as Sullivan J briefly did (judgment: paragraph 15), whether as a matter of discretion judicial review relief should in any event be refused on the basis that these proceedings are nothing but a colourable attempt by the mother to avoid the effect of the United Kingdom’s immigration laws, an attempt in which her son, the applicant, is an unknowing tool. We have not gone into that.

I agree that the appeal should be dismissed for the reasons given by my Lord, Laws LJ. There is nothing I wish to add.

I also agree that this appeal should be dismissed for the reasons given by Laws LJ. I would only add this. The expressions “ambit”, “field”, “penumbra” or other inexact expressions which seek to avoid the sometimes ambiguous use of the word “engage”-- with reference to Article 8 of the European Convention on Human Rights, for the purpose of determining whether an Article 14 case of discrimination itself arises for determination -- are not easy to apply. It is reasonably clear, I think, that entirely freestanding difference of treatment, with no tangible relation to possible convention rights, does not come within Article 14. In this case there would, I think, be no vestige of invasion of the two-year-old child claimant’s Article 8 rights, if he were taken by his mother to Turkey.

This being so, I was at one stage in the argument inclined to think that this case does not enter the ambit, field, penumbra or other inexact expression, which would characterise the means whereby an Article 14 case arose for consideration. I have however on reflection come to the same point as has been expressed by Laws LJ -- that that is to say that we should not so decide, nor indeed decide the contrary -- that is to say that Article 14 does arise because we are in this inexact penumbra. I entirely agree with what my Lord has said on the subject of discrimination and, as I say, I too would dismiss this appeal.