Weiss, R (on the application of) v Secretary of State for the Home Department

Mr Weiss is a citizen of Namibia. He met the lady who was to become his wife while they were both working in Holland for a Dutch company. That lady is a citizen of the United Kingdom. They began their relationship in Holland in 1995, but they later took up residence in England. They were married in the United Kingdom on 20 February 1997. Spouses of EEA nationals are entitled to apply for a permanent residence entitlement in the United Kingdom if they are family members of United Kingdom nationals, but they only qualify as such pursuance to regulation 9 of the Immigration (European Economic Area) Regulations 2006 (“the EEA Regulations”) if, relevantly, (1) the United Kingdom national was residing in an EEA state as a worker, or was so residing before returning to the United Kingdom; and (2) if the family member of the United Kingdom is a spouse or civil partner, the parties had entered into the marriage or civil partnership in an EEA state before the UK national returned to the United Kingdom.

Unfortunately for Mr Weiss, he had not entered into his marriage in Holland but rather in England. He made an application for permanent residence pursuant to the EEA Regulations on 14 February 2007, but the Secretary of State refused that application on 19 November. Mr Weiss could at that time have applied to the Secretary of State for indefinite leave to remain, on the basis that he had resided in the United Kingdom continuously for ten years, pursuant to the current version of Rule 276B of the Immigration Rules; but he did not do that. The decision letter said that it was open to Mr Weiss to make such an application, but also said, wrongly, that there was no right of appeal against the decision that had been made, so the Secretary of State decided that Mr Weiss had to leave the United Kingdom within 28 days.

On 5 December 2007, Mr Weiss appealed the decision of the Secretary of State, and added by way of additional reasons that the decision constituted a disproportionate interference with his wife’s rights under Article 8 of the European Convention of Human Rights, because the decision would require him to return to Namibia and make any application for indefinite leave to remain from Namibia. He also said that he had established facts pursuant to which the Secretary of State would normally grant leave pursuant to what he called the “10 or 14 years’ continuous residence concession.”

The actual appeal hearing took place before Immigration Judge Mylne QC and ranged somewhat more widely than his grounds of appeal. But in his determination promulgated on 18 June 2008, that Immigration Judge dismissed Mr Weiss’s appeal under the EEA Regulations but allowed it under Article 8, saying that it was undisputed:

“... that the appellant has already resided lawfully and continuously in the United Kingdom for more than 10 years, and would therefore be likely to succeed under immigration rule 276B.”

Rule 276B was in the following terms at the date of Immigration Judge Mylne’s decision:

“The requirements to be met by an applicant for indefinite leave to remain on the ground of long residency in the United Kingdom are that (i) he has had at least 10 years continuous lawful residence in the United Kingdom.

(ii)

having regard to the public interest, there are no reasons why it would be undesirable for him to be given indefinite leave to remain on the ground of long residence, taking into account ...”

Then there are set out various factors that I need not incorporate into this judgment. Then:

“(iii)

The applicant has sufficient knowledge of the English language, and sufficient knowledge about life in the United Kingdom, unless he is under the age of 18 or aged 65 or over at the time he makes his application.”

On 5 November 2008, the Secretary of State said that permanent residence could not be granted in the light of Immigration Judge Mylne’s decision, but the Article 8 decision would be implemented. On 6 November, the Appeal Implementation Unit returned Mr Weiss’s passport to him endorsed with discretionary leave to remain for three years. Mr Weiss maintained that he was entitled to permanent residence on the basis of Immigration Judge Mylne’s determination, but on 25 November, the Secretary of State replied that the question of the long residency rule had not been raised at the appeal, but would be considered if Mr Weiss submitted a fresh application.

Mr Weiss treated that as a refusal of permanent residence, and on 20 February 2009 issued judicial review proceedings in respect of that refusal, asking for an order that the Secretary of State grant him indefinite leave to remain in the United Kingdom. Dobbs J refused permission for judicial review on the papers, but Mr Weiss renewed his application orally. Wyn Williams J heard that application on 2 September 2009, but dismissed it on the grounds, first, that no formal application under 276B had ever been made, and secondly that the factors which needed to be determined under the rule had not, in any event, been conclusively determined.

Sullivan J has given permission to appeal to this court after an oral hearing. Mr Hawkin for Mr Weiss now submits, firstly, that Immigration Judge Mylne was seised of all the issues which would require determination under Rule 276B, namely (a) the length of lawful residence, (b) the absence of any reason why the grant of indefinite leave to Mr Weiss would be undesirable, and (c) Mr Weiss’s knowledge of the English language and English life. Secondly, he says all those matters were decided, or at any rate ought to have been decided, in his favour by Immigration Judge Mylne. And thirdly, he says that there is no point in Mr Weiss being required to make a fresh application and pay the appropriate fee of, we discover, in the region of £1,000, because the result of any such application would be a foregone conclusion.

In my judgment, there are two fatal difficulties in the way of Mr Hawkin’s argument. The first difficulty is that no application for indefinite leave to remain on the grounds of continuous residence has ever been made. There is a prescribed form for such applications, and the Regulations which I have set out in that prescribed form have been made under section 31A of the Immigration Act 1971, which provides:

“1.

If a form is prescribed for a particular kind of application under this Act, any application of that kind must be made in the prescribed form.

2.

If procedural or other steps are prescribed in relation to a particular kind of application under this Act, those steps must be taken in respect of any application of that kind.

3.

‘Prescribed’ means prescribed in regulations made by the Secretary of State.”

All that has happened by way of decision by the Secretary of State is that on 25 November, he required an application to be made. For my part, I cannot see anything unlawful in that requirement of the Secretary of State, and unless there is something unlawful in it, this court cannot interfere.

The second difficulty in the way of Mr Hawkin’s argument is that on a true analysis of the matter, Immigration Judge Mylne did not actually make a decision on the question of continuous lawful residence entitling Mr Weiss to indefinite leave to remain pursuant to 276B. He only said that, if made, any such application would be likely to succeed. It is fair to say that Immigration Judge Mylne did say in terms in paragraph 9.2 of his determination that he had regard to undisputed facts, including:

“(a)

the appellant has already resided lawfully and continuously in the United Kingdom for more than ten years, and would therefore be likely to succeed under Immigration Rule 276B; and

(b)

the appellant has an unblemished record in the United Kingdom, and it has never been suggested that either his entry into the United Kingdom or his residence here is anything than entirely lawful…”

There is, however, no reference to the third requirement, that any applicant has to show knowledge of English language and English life, and it is clear to my mind that Immigration Judge Mylne did not purport to say that Mr Weiss was entitled to indefinite leave to remain pursuant to 276B. He said no more than that he would be likely to succeed under Immigration Rule 276B.

Mr Hawkin relies on the judgment of this court in AS (Afghanistan) v SSHD [2009] EWCA Civ 1076 and in particular on a passage in the judgment of Sullivan LJ that appears at paragraph 106, where Sullivan LJ says this:

“106.

Moreover, there is in practice often a degree of overlap between additional grounds based on compliance with the Rules and asylum and human rights grounds. By way of example, an unrepresented Appellant who mistakenly applied for leave to remain on the wrong basis and failed to mention their marriage to a UK citizen, or who married after making their application, and who raised the issue in response to a section 120 "One-stop" notice would be able on appeal to the AIT to rely on the marriage as an "other" reasons for being allowed to stay in the UK insofar as it was the basis of additional grounds relying on Article 8 of the European Convention on Human Rights, but would not, on the narrower interpretation, be able to rely on the marriage for the purpose of demonstrating compliance with the Rules, unless, presumably, the Appellant's compliance with the Rules was a "Robinson obvious" point which the AIT should take of its own motion in any event. Long residence is another example where the evidence of long residence may well be relevant for the purposes of both the Rules and Article 8. An Appellant who erroneously failed to rely on 10 years residence in the UK in his rejected application could rely in his additional grounds of appeal on his length of residence for the purposes of Article 8, but not as demonstrating compliance with the Rules. A coherent "One-stop" appellate system would enable the AIT to consider all, and not merely some, of an Appellant's potentially overlapping grounds.”

I would say two things about that passage. First of all, there was in this case, as far as one can judge, no one-stop notice requiring the appellant to bring all his arguments together at the same time, but secondly and more importantly, what Sullivan LJ there had in mind was that if other matters were brought together under the umbrella of an appeal to the AIT, the Immigration Judge could decide such other matters, and perhaps even should be encouraged to do so as part of a one stop procedure. But the fact is that Immigration Judge Mylne did not make such a decision in this case, and in my judgment he could not have made any such decision in any event in the absence of any application being made on the prescribed form.

Mr Williams has appeared for the Secretary of State and has assisted the court. He accepts that it is likely that if an application is made in the proper form, that it will be granted, especially in the light of what the Immigration Judge has said. But, he says, there is no reason for Mr Weiss to be an exception to the rules that apply to everybody else, namely that an application has to be made in proper form.

It can be said that this is a bureaucratic approach, but it is impossible in my judgment to say that it is an unlawful approach, and I would dismiss this appeal.

So would I.

I agree. So the appeal is dismissed.