McCarthy v Secretary of State for the Home Department

This is an application for permission to appeal, with appeal to follow if permission is granted, from a decision of the Asylum and Immigration Tribunal (“the Tribunal”), Mr CMG Ockelton, Deputy President presiding, promulgated on 16 August 2007. Permission is granted. The Tribunal dismissed the appeal of Mrs Shirley McCarthy (“the appellant”) against a decision of the Secretary of State for the Home Department (“the Secretary of State”) on 6 December 2004 to refuse to issue the appellant with a residence permit.

The refusal was on the basis that the appellant had failed to provide evidence that she was a “qualified person” within the meaning of Regulation 5(1) of the Immigration (European Economic Area) Regulations 2000, which were then operative. Moreover, the appellant was not “exercising Treaty rights”. The notice of decision made clear that the refusal did not involve a requirement to leave the United Kingdom.

The appellant is a citizen of the Republic of Ireland and of the United Kingdom. As a British citizen, she has the right to reside in the United Kingdom. Her husband, Mr George McCarthy, is a Jamaican citizen who lacks leave to enter or remain in the United Kingdom. The object of the application for a residence permit under the regulations is to enable her husband to obtain, as her husband, a residence permit under the regulations on the basis that his spouse, the appellant, has one. He also was refused a residence permit or residence card on 6 December 2004. In his case, the refusal was accompanied by a notice that he had no further basis of stay in the United Kingdom. Mr McCarthy is not a party to the present appeal but, if it were to succeed, he would be likely to be granted the relevant permit.

There had been an earlier unsuccessful appeal by the appellant to the Tribunal. Black J had ordered a reconsideration. The Tribunal, in the decision now under consideration, found that the earlier decision had involved an error of law but substituted its own determination dismissing the appeal on all grounds.

The appellant is 49 years old and was born a citizen of the United Kingdom by reason of birth. She has lived here all her life. She was also born a national of the Republic of Ireland by reason of the then applicable Irish nationality law because her mother was an Irish national by birth.

Mr McCarthy was granted leave to enter the United Kingdom as a visitor for six months in 2002. He met the appellant. They married in November 2002 and have since lived together in the United Kingdom. Mr McCarthy applied for a residence card having been refused indefinite leave to remain under the Immigration Rules.

It has been assumed that, as an Irish citizen, the appellant has a right of residence in the United Kingdom under United Kingdom nationality laws, which give special status to Irish citizens, but that is not suggested to be relevant to the present issue. The reconsideration was ordered because, on the first occasion, the Tribunal had not considered the consequences of the appellant’s dual nationality. If the appellant succeeds by reason of dual nationality, a second issue arises, on which the Tribunal’s decision was also adverse to her, that she is not entitled to a permit because she has not “moved” to the United Kingdom but has always resided here.

The appellant’s appeal to the Tribunal was pending on 30 April 2006 when the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”) came into force. By virtue of paragraph 5(1) of schedule 4 to the 2006 Regulations, the correctness of the decision under appeal is to be determined by reference to those regulations. It is conceded that the appellant is not a “qualified person” within the meaning of the 2006 Regulations. She does not come within any of the categories under regulation 6 which would qualify her. She has 3 children and is the full-time carer of her disabled son. The submission is that the appellant is entitled to a residence permit under the regulations because she is an EEA national who has resided in the United Kingdom in accordance with the regulations for a continuous period of five years (regulation 15 of the 2006 Regulations). It is common ground that her Irish nationality confers on her the status of an EEA national within the meaning of the 2006 Regulations (regulation 2).

The regulations implement EC Directive 2004/38 (“the Directive”) made under article 18 of the EC Treaty. There is no challenge to the length of residence. Equally, it is conceded on behalf of the appellant that, if her nationality was British alone, she would not be entitled to a permit under the regulations.

Article 18(1) of the EC Treaty provides:

“Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.”

There had been earlier Directives and the explanatory statement which accompanied the final legislative act stated that the purpose of the Directive was “to simplify and enhance the Union citizens’ rights of movement and residence”.

Chapter IV of the Directive is headed “Right of permanent residence” and article 16 provides, in so far as is material:

“1.

Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there. This right shall not be subject to the conditions provided for in Chapter III.

2.

Paragraph 1 shall apply also to family members who are not nationals of a Member State and have legally resided with the Union citizen in the host Member State for a continuous period of five years.”

“Host Member State” is defined in article 2(3) of the Directive as “the Member State to which a Union citizen moves in order to exercise his/her right of free movement and residence.” The expression “host member state” appears frequently in the Directive.

As put by Mr Cox on behalf of the appellant, the issue is whether the phrase in article 16(1), “resided legally”, means what it says or means only “resided in exercise of a right conferred by community law”. Submissions have rightly concentrated on the expression “resided legally” which may be more favourable to the appellant’s case than the equivalent expression in the 2006 Regulations (regulation 15).

Preamble 1 to the Directive provides:

“Citizenship of the Union confers on every citizen of the Union a primary and individual right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaty and to the measures adopted to give it effect.”

Both parties seek to rely on preambular paragraphs 17 and 18 of the Directive:

“17.

Enjoyment of permanent residence by Union citizens who have chosen to settle long term in the host Member State would strengthen the feeling of Union citizenship and is a key element in promoting social cohesion, which is one of the fundamental objectives of the Union. A right of permanent residence should therefore be laid down for all Union citizens and their family members who have resided in the host Member State in compliance with the conditions laid down in this Directive during a continuous period of five years without becoming subject to an expulsion measure.

18.

In order to be a genuine vehicle for integration into the society of the host Member State in which the Union citizen resides, the right of permanent residence, once obtained, should not be subject to any conditions.”

The last sentence of recital 17 was included by amendment shortly before the Directive was adopted. While not a part of the Directive, an explanatory memorandum issued with the Directive in April 2004 states that it lays down:

“A right of permanent residence is [sic] be laid down for all Union citizens and their family members who have resided in the host Member State in compliance with the conditions laid down in this Directive during a continuous period of 5 years without becoming subject to an expulsion measure. The right of permanent residence, once obtained, may not be subject to any conditions. ”

Following article 2 of the Directive, Regulation 2 provides that “EEA national” means a national of an EEA State. EEA State means “a Member State, other than the United Kingdom”. The Irish Republic is of course a Member State and her Irish nationality makes the appellant an EEA national under the 2006 Regulations. As her spouse, Mr McCarthy, is a family member of the appellant for the purposes of the regulations (Regulation 7(1)).

Regulation 14 provides, in so far as is material:

“Extended right of residence

(1)

. . .

(2)

A family member of . . . an EEA national with a permanent right of residence under regulation 15 is entitled to reside in the United Kingdom for so long as he remains the family member of the . . . EEA national.

(3)

. . .”

Regulation 15(1) provides:

“Permanent right of residence

15.

(1) The following persons shall acquire the right to reside in the United Kingdom permanently—

(a)

an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years;

. . . ”

Mr Cox submits that the expression “residing legally”, in article 16(1), should be given its natural and precise meaning. It encompasses all forms of legal residence. The appellant has the right to reside in the United Kingdom and is here lawfully. Legality under either national or EC law constitutes legal residence within the meaning of article 16 which, it is submitted, speaks very loudly. By contrast, in article 24, dealing with equal treatment, a narrower expression is used:

“All Union citizens residing on the basis of this Directive in the territory of a host Member State.”

The use of the expressions “chosen to settle long term in the host Member State” and “promoting social cohesion”, in preamble 17, and the word “integration”, in preamble 18, demonstrate the broad intentions of the Directive, it is submitted. Had a narrower meaning been intended, the right conferred by article 16(1) would have been confined to “residence in exercise of a right conferred by EC law” or “residence on the basis of this Directive”.

Mr Cox also relies on decisions of the European Court of Justice (“ECJ”) dealing in other contexts with the concept of lawful residence. In Sala v Freistaat Bayern (case C-85/96), a question arose as to the status and rights of a Spanish national living in Germany, including whether she was entitled to receive a child-raising allowance. It was held that the allowance fell within the scope ratione materiae of Community law. The claimant had been authorised to reside in Germany and was a national of a Member State “lawfully residing” in the territory of another Member State (paragraph 61 of judgment of the ECJ).

It was held that the claimant was subject to unequal treatment in that she was required to produce a document constitutive of the right to the benefit when its own nationals were not required to produce any such document (paragraph 54). The court concluded that the claimant could rely on the right, provided in article 6 of the Treaty, not to suffer discrimination on grounds of nationality within the scope of application ratione materiae of the Treaty (paragraph 62).

In Trojani v Centre public d'aide sociale de Bruxelles (Case C-456/02), the French claimant was lawfully resident in Belgium and had been issued with a residence permit. It was held that he could rely on article 12 EC under which “within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on the grounds of nationality shall be prohibited”.

It has also been held in this court in Abdirahman v Secretary of State for Work and Pensions [2007] EWCA Civ 657 that “the scope of application of the Treaty, for the purposes of article 12 [discrimination on grounds of nationality], includes both cases where a right of residence arises [for an EEA national] directly under the Treaty and those where it arises separately under the law of the Member State” (Lloyd LJ at paragraph 44).

For the respondent, Miss Chan submits that the expression “resided legally” in article 16 must be considered in the context of the Directive as a whole. Under the heading “Right of Residence”, chapter III provides, in article 6, a right of residence for up to three months with a minimum of formality and, in article 7, a right of residence for more than three months provided detailed conditions are met. These conditions include the Union citizens being workers, self-employed or students and having, and I paraphrase, sufficient resources not to become an economic burden on the social assistance system of the host Member State during their period of residence, and comprehensive sickness insurance cover in the host Member State (article 7).

Articles 10 and 11 provide for the issue and validity of residence cards and articles 12 and 13 for the retention of the right of residence by family members in specified circumstances. Chapter IV, which includes article 16, is headed “Right of permanent residence”. Chapter VI permits Member States to impose restrictions on the right of entry and the right of residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. In that context, article 28 provides safeguards against expulsion, specifying the circumstances in which it may be effected. Article 35 empowers Member States to adopt the necessary measures to refuse, terminate or withdraw any right conferred by the Directive in the case of abuse of rights or fraud.

The entire Directive is geared, it is submitted, to creating and regulating rights conferred by community law, as distinct from national law. The concept of legal residence in article 16 must be read in the light of preamble 1 and the reference in preamble 17 “to the right of permanent residence . . . for all Union citizens and their family members, who have resided in the host Member State in compliance with the conditions laid down in this Directive” (emphasis added). Moreover, article 3(1), already cited, provides rights for “Union citizens who move to or reside in a Member State other than that of which they are a national.”

The appellant has a right of residence as a United Kingdom national and the provisions of the Directive are not relevant to her while exercising her right of residence in the United Kingdom as a United Kingdom national, it is submitted. Article 16 refers to a continuous period of five years “in the host Member State” that expression being defined in article 2(3) as the Member State “to which a Union citizen moves in order to exercise [rights] . . .”. The Directive, it is submitted, creates and regulates rights for Union citizens in States other than the state of their nationality.

The Tribunal referred to the appellant having Irish as well as UK citizenship, and stated, at paragraph 24 of the determination:

“We are, however, satisfied that neither EU law nor the Regulations affords the appellant any such additional rights or benefits.”

The Tribunal held at paragraph 25:

“Our reason for this conclusion is that the appellant has not been residing in the United Kingdom during any of the 48 years of her life in the exercise of rights as an EEA national and has not, therefore, resided in the United Kingdom “in accordance with [the 2006] Regulations” or in accordance with the rights and benefits provided to EEA nationals by them. Rather, she has resided in the United Kingdom as a citizen of it and has derived such benefits as she may have received by reason of her United Kingdom nationality and not under Community law. The words of Regulation 15 are unequivocal and we are bound by them.”

Paragraph 28 of the determination provides:

“. . . In our judgment, however, the reference to the appellant residing in the country legally is a reference to the appellant residing in accordance with Community law; that is, in accordance with the Directive which gives Union citizens a right “to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaty and to the measures adopted to give it effect” – see Recital (1) of the Directive.”

The Tribunal added, at paragraph 33:

“We are satisfied that the appellant in the instant case has a right to remain in the United Kingdom because she was and remains a United Kingdom national. In that sense, she was residing lawfully in the United Kingdom but that fact alone does not determine whether she is entitled to a right of permanent residence under the Directive or Regulations made pursuant to it.”

The Tribunal reached the same conclusion in GN (EEA Regulations: Five years' residence) Hungary [2007] UKAIT 00073, Mr Ockelton, Deputy President, again presiding. In claiming five years residence, the claimant needed to rely in part on residence lawful under domestic law because the state of which he was a national, Hungary, was not a member of the Union for the whole period of five years. Having referred to indicators already considered in the present case, the Tribunal stated, at paragraph 10:

“That, it seems to us, is sufficient to show that the provisions of the Directive are properly reflected in the regulations, which indicate that the period of five years in question is a period during which the applicant was exercising Treaty rights or was a spouse or family member of someone doing so. In the appellant's case he was not exercising any direct Treaty rights before Hungary, the country of which he was a national, became a member of the European Union.”

I agree with the conclusions of the Tribunal. The Directive creates and regulates rights of movement and residence for Union citizens. The lawful residence contemplated in article 16 is residence which complies with community law requirements specified in the Directive and does not cover residence lawful under domestic law by reason of United Kingdom nationality. Article 3 provides in terms that the Directive applies to Union citizens who reside in a Member State “other than that of which they are a national”. The expression “resided legally” in article 16 should, in my view, be read consistently with, and in the sense, of preamble 17 of the Directive, that is residence “in compliance with the conditions laid down in this Directive”. The repeated use in the Directive of the expression “host Member State” supports that conclusion. It indicates rights to be enjoyed in Member States other than that of nationality; the word “host” suggests that the Union citizen is a “guest”, an inappropriate expression for persons in the state of their own nationality.

I do not consider that the approach to lawful residence adopted in other contexts, and for other purposes, assists with the construction of the expression “resided legally” in the Directive. The identification of those entitled to protection against discrimination under the Treaty, as Union citizens, does not throw light on the construction of “resided legally” for present purposes. The appellant is not entitled to bypass the requirements in the Directive by relying on a residence lawful under United Kingdom law. Thus I conclude that a United Kingdom citizen resident in the United Kingdom cannot, by virtue of also having Irish nationality, claim a permit which may be granted by virtue of the Directive.

Had the appellants succeeded on the first point, I would not have found against her on the basis that she has not “moved” to the United Kingdom but has always resided here. If the first obstacle, which I regard as insurmountable, could be overcome, the appellant could take advantage of the Directive as a Union citizen who “resides” in the United Kingdom (article 3). If the United Kingdom can, in the circumstances, be regarded as a “host Member State”, article 2(3), which refers to ‘move’ but not to ‘reside’, should be read with article 3(1), which refers to both, as does preamble 1. The definition covers a Union citizen who has always resided here. (See also Chen v Secretary of State for the Home Department [2004] EUECJ C-200/02, [2005] QB 325, though Chen does not question the requirement to meet conditions under the Directive if its benefits are to be obtained). On the second issue, I disagree with the Tribunal’s finding, at paragraph 29, (though it may have been no more than an additional reason for the finding on the first issue) that the Directive invariably imposes a requirement that there is movement from one country to another and that “the movement required excludes the appellant”.

However, for the reasons given, I would dismiss this appeal. I would not refer to the ECJ.

I agree with judgment of Lord Justice Pill for the reasons he gives. At [15] above, Lord Justice Pill refers to an explanatory memorandum issued with the Commission’s proposal for the directive in April 2004. This clearly forms part of the travaux préparatoires. Legislative history can and should be used as an aid to interpretation of a directive; the restrictions which apply on the use of legislative history as an aid to the interpretation of domestic legislation (Pepper v Hart [1993] AC 593 ) do not apply to Community legislation.

At the end of the hearing, we asked counsel to check whether there was any other relevant material in the travaux préparatoires (including, but not limited to the opinions of the European Economic and Social Committee and the opinion of the Committee of the Regions, which are referred to in the recitals to the directive). Counsel for the appellant checked that there was nothing relevant in those opinions. The solicitors for the Secretary of State inspected the procedure file held by the European Parliament. The Secretary of State produced a summary of the directive on this file but this appears to be a purely internal administrative summary prepared by the European Parliament, and I for my part would accept the submission of the appellant that no weight can be given to this. The Secretary of State found no further useful information on the file apart from the explanatory memorandum and proposal for a directive referred to above. I am grateful to both parties for their researches.

I agree with both judgments.