OQ (India) v Entry Clearance Officer

This is a renewed application for permission to appeal. I refused permission on the papers on 15 April 2009. Mr Ahmed has attended on behalf of the applicant and has added to the submissions in his skeleton and in the statement made in accordance with paragraph 4.14(A)(2) of the Practice Directions. His submission is that, notwithstanding the decision of this court in Bigia & Ors v Entry Clearance Officer [2009] EWCA Civ 79, he still has arguable grounds of appeal. He now reduces the proposed grounds to two headings. First, he submits that he has grounds related to the applicants as family members under article 2.2(c) of the directive. Secondly, he says in the alternative that they have a case as “other family members” by reference to article 3.2(a) of the directive. I deal with the two headings separately.

The case under article 2.2(c) is dependent upon the applicant’s establishing dependency upon their father, the sponsor. I accept Mr Ahmed’s submission that the original determination of Immigration Judge Knowles did not address that issue but approached the matter purely by reference to the immigration rules.

I initially refused permission by reference to this proposed ground of appeal, because it seemed to me that the AIT, in the reconsideration determination, in fact considered the matter by reference to article 2.2(c) and applied the correct test of dependency. In paragraphs 3 and 4 of that determination the AIT set out the test in the case of Jia (Free Movement of Persons) [2007] EUECJ C-1/05, which was held in Bigia to be the appropriate test, and concluded that it had not been satisfied. That is why, on the face of it, it first seemed to me that there was no error of law in the approach. Mr Ahmed submits that, whilst the correct test was purportedly applied, it did not result in a permissible conclusion. In other words, he is submitting in relation to this proposed ground of appeal that the reconsideration decision was perverse. That is, of course, a difficult submission to sustain. However, he points to the evidence that was before the original immigration judge -- and which appears to have been accepted -- about the circumstances in which the applicants live in India and the extent on which they rely upon accommodation and money from the sponsor. He has taken me to the decision of the original immigration judge and the statement of the sponsor, which is in section B of the supplementary bundle.

It seems to me that it is arguable that the evidence before the immigration judge, and apparently accepted by him, might be sufficient to establish dependency and might be such as to sustain a perversity challenge as regards to the reconsideration judgment. I do not underestimate the difficulty of the task facing Mr Ahmed in this regard, but it seems to me that he ought to be permitted to advance the arguments.

The alternative case under article 3.2(a) of the directive requires consideration of whether the applicants were members of the sponsor’s household at the material time. That issue was not considered by the immigration judge at the original hearing, at which the sponsor appeared in person. Mr Ahmed assures me that it was part of his case at the reconsideration hearing, although it did not get off the ground because the law applied by the AIT preceded its later development by the ECJ in Metock(Minister of Justice Equality & Law Reform Case [2008] EUECJC-127/08) and this court in Bigia. In Bigia this court had to consider cases in which reliance was sought to be placed on article 3.2(a). The relevant passages are paragraphs 42-44. Essentially, the approach was that previously expanded by Buxton LJ in KG(Sri Lanka)&AK(Sri Lanka)vSSHD [2008] EWCA Civ 13, which this court considered to be largely unaffected by Metock in article 3.2(a) cases. The evidence is that, prior to his arrival in this country in December 2006 as an EC national a Portuguese citizen wishing to exercise Treaty rights in this country, the sponsor lived in India with his wife and family, including the applicants. To that extent they were in his household when he left India and came to this country. I am told, although it is difficult to pinpoint it in the evidence, that the applicant came directly to this country from India and not via any third European country. It may be that the crucial issue will be the passage of time between the sponsor’s departure and the making of the application to the entry clearance officer on behalf of these applicants. In Bigia we adopted Buxton LJ’s requirement that the membership of the household in the country from which the Union citizen has come must be “very recent”. It may also be that, if the applicants can bring themselves within the article 3.2(a), they will also be seen as having received all that that provision entitles them to, because, unlike article 2.2(a), its entitlements are procedural rather than substantive. Be that as it may, I do not feel able to say that the applicants have no prospect of success. I think they have a real, as opposed a merely fanciful, prospect; and, in those circumstances, contrary to the view that I originally expressed on paper, I now propose to grant permission to appeal by reference to these two headings. The time estimate will be half a day and the court will comprise three members, one of whom may be a High Court judge.