AS (Ghana) v Secretary of State for the Home Department

This is the appeal of Mr Ahmed Sulieman, a Ghanaian citizen born on 17 August 1978 who entered this country with leave as a working holidaymaker on 10 March 2005 aged 26. It is not necessary to direct anonymity in this case.

He was granted a residence permit as a non-EEA spouse of an EEA national with a stated validity between 17 November 2006 and 17 November 2011. The couple divorced on 25 October 2011.

The appeal is against the determination of the Upper Tribunal on 2 August 2014 dismissing Mr Sulieman’s appeal against the determination of a preliminary issue by the First-tier Tribunal. The First-tier Tribunal determined on 24 April 2014 that there was no valid appeal before it. Both tribunals held that there was no valid appeal because appeals under the Immigration Act 1971 were given to a category of immigration decision including the refusal to vary person’s leave to enter or remain, and the appellant’s lawful residence in the UK as a qualifying family member of an EEA citizen does not amount to such leave.

The question before us is whether a person who at one stage was the spouse of an EEA citizen with a right of abode in the United Kingdom but no longer has that status and right is to be treated as having leave either under the Immigration Act 1971 or otherwise after his application for permanent residence as the former spouse of an EEA citizen has been rejected.

It was submitted by Mr Kannangara on behalf of the appellant that it is to be so treated. He argued that this was because regulation 26 of the Immigration (European Economic Area) Regulations 2006 SI 2006/1003 (“the 2006 Regulations”) provides rights of appeal to EEA nationals and qualifying family members and that the provisions of or made under the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) have effect in relation to such an appeal as if it was an appeal against an immigration decision under section 82(1) of the 2002 Act. He in substance argued that the position of a person who is appealing against the refusal of an application for a claim to residence based on a right under any of the Community Treaties should be similar to that which a person applying for a variation of leave is granted by section 3C of the Immigration Act 1971, which extends his leave pending a decision on that application and any appeal against that decision.

The appellant’s skeleton argument raised two matters not addressed in the grounds. The first is that he had completed a period of continuous lawful residence of the years at the relevant date and is entitled to indefinite leave to remain under paragraph 276B of the Immigration Rules. He argues that the Secretary of State erred in not granting him indefinite leave under the provision. He also argued that she erred in not granting him leave outside the Immigration Rules on Article 8 grounds because his relationship with his brother’s family goes beyond normal emotional ties because of his care for and contribution to the welfare of his two young nephews, the younger of whom has a multitude of serious health problems, and because of his private life in the community and contribution to it.

At the hearing it was accepted that these matters are outside the scope of this appeal because it is against the Upper Tribunal’s decision on the preliminary issue of whether the appellant has a right of appeal. If the appellant succeeds in that, those matters will be considered as part of any substantive appeal.

Sections 1 and 3 of the Immigration Act provide that leave to live, work or settle in the United Kingdom must be obtained by those who have no “right of abode in the United Kingdom”. Section 3C of the 1971 Act when read with section 4 empowers the Secretary of State to vary the leave of those with limited leave to enter or remain who apply for variation of the leave before their leave expires. It provides that in such a case the leave is “extended by virtue” of the section during the period pending a decision on the application in which an “in-country” appeal could be brought, the withdrawal of the application, or where the applicant leaves the United Kingdom; see section 3C(2) and (3). Section 3C(4) prohibits a person from making an application for variation of his leave while that leave is extended by “virtue of section” 3C(2). It thus prohibits a further application to vary after section 3C has started to operate.

Section 82(1) of the 2002 Act gives a right of appeal against an immigration decision within the meaning of that term in section 82(2). Section 82(2)(d) provides that a refusal to vary a person’s leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to remain is an immigration decision.

EEA citizens and their family members as defined in the relevant Directives and Regulations have the right to move and reside freely within the European Union. Broadly speaking, they have this right when the EEA national is in the United Kingdom as a jobseeker, a worker, a self-employed person or a student. Their position is dealt with in the Free Movement of Citizens Directive 2004/38/EC. Effect in United Kingdom law is given to rights of free movement under EU law by national legislation, the duty of national courts to interpret such legislation to conform with those rights and the doctrine of direct effect.

The material legislative provisions in the present context are section 7 of the Immigration Act 1988 and the 2006 Regulations. Section 7 of the 1988 Act deals with the relationship between those with a right of residence in the UK under EU law and the regime under the Immigration Act 1971. Section 7(1) expressly states that:

“A person shall not under the principal Act [the Immigration Act 1971] require leave to enter or remain in the United Kingdom in any case in which he is entitled to do so by virtue of an enforceable Community right or of any provision made under section 2(2) of the European Communities Act 1972.”

Paragraph 1 of schedule 2 to the 2006 Regulations is headed “Leave under the 1971 Act”. Subparagraph 1 provides that in accordance with section 7 of the Immigration Act 1988 a person who acquires a right to reside in the United Kingdom under the Regulations “shall not require leave to remain in the United Kingdom under the 1971 Act during any period in which he has a right to reside under these Regulations but such a person shall require leave to remain under the 1971 Act during any period in which he does not have such a right”. Regulation 15(1)(f) of the 2006 Regulations provides that a person who has resided in the United Kingdom in accordance with the Regulations for a continuous period of five years and was at the end of that period a family member who had retained the right of residence has a right to reside in the United Kingdom permanently. A person who has ceased to be married to a qualified person but satisfies the criteria set out in regulation 10(5) will qualify under regulation 10(1) as a “family member who has retained the right of residence”. Regulation 26 to which I have referred grants a right of appeal to qualified persons from EEA decisions as defined in paragraph 2, which includes decisions concerning a person’s entitlement to permanent residence. Paragraph 1 of schedule 1 to the 2006 Regulations provides that the provisions in schedule 1 “have effect in relation to an appeal under the Regulations to the First-tier Tribunal as if it were an appeal against an immigration decision under section 82(1) of the 2002 Act”.

I referred to the appellant’s marriage to an EEA national and the grant of a residence permit during the currency of his leave as a working holidaymaker. His leave as a working holiday maker ended on 10 March 2007. By then he had married but his marriage to Ms Marie Mbow, a French national, broke down and the couple divorced, as I have stated, on 25 October 2011. On 16 November 2011, shortly after the divorce and on the last day of the currency of his residence permit, the appellant applied for permanent residence in the UK as a person who retained rights of residence after his divorce from the EEA national. This application was refused on 2 February 2012. It appears that the grounds for refusal included that no evidence had been furnished that the appellant’s ex-wife was exercising Treaty rights in the United Kingdom at the material time.

An appeal to the First-tier Tribunal was dismissed on 11 April 2012 by First-tier Tribunal Judge MacDonald. It is important to note that the appellant had withdrawn his appeal under the 2006 Regulations, apparently because he was unable to show that at the material time his ex-wife was exercising her Treaty rights as required by the Regulations. Although the appeal proceeded only on the basis of his Article 8 rights, the First-tier Tribunal stated that it dismissed the appeal under the Regulations as well as on the human rights grounds. An application for permission to appeal to the Upper Tribunal was refuse by the Upper Tribunal. It follows that that application must have been only on the human rights grounds.

Following that decision the appellant did not apply to the High Court or to the Court of Appeal, respectively for permission to apply for judicial review and for permission to appeal. The next step taken by or on behalf of him was that on 25 July 2013 an application for leave was made under form FLR(O), i.e. the Article 8 “private life” route under the Immigration Rules. That application was refused in a decision dated 16 August 2013. It is that decision that directly gives rise to this appeal.

The decision is in a document headed “Notice of decision - refusal to grant leave to remain”. It gave reasons for concluding that the appellant did not meet the requirements of the two categories on which he had relied, long continuous residence and, in relation to his family life, the existence of exceptional circumstances. The document also states that at the time of his application on 25 July 2013 he did not have leave to remain, and that there was no right of appeal against the refusal.

The appellant did not accept that he had no right of appeal against this decision. On 11 September 2013 he lodged an appeal at the First-tier Tribunal. He contended that he had been “in the appeal process” since 11 April 2012 when the First-tier Tribunal dismissed his earlier appeal. His argument was that although he had abandoned his appeal under the Regulations, when he applied under the Article 8 “private life” route on 25 July 2013 he had “leave” to remain as his remedies in respect of the earlier application were not exhausted. He maintained that as at the time of the earlier refusal he had the option of instituting judicial review proceedings after the refusal of permission by the Upper Tribunal in July 2013 and that he made his application under the private life route within 16 days of that decision when it was still open to him to apply for permission to move for judicial review or for permission to appeal to the Court of Appeal, he was “within the 3C leave period”. His grounds also raised his Article 8 grounds, both under and outside the Immigration Rules.

The validity of the appellant’s notice of appeal was referred to a tribunal judge on 4 October 2013 and then to a hearing judge as a preliminary issue. The matter was heard on 23 April 2014 by First-tier Tribunal Judge Kamara who rejected the appellant’s arguments. The Tribunal judge gave her reasons for concluding that there was no valid appeal in a short determination dated 24 April 2014. She stated that the appellant had no leave to enter or remain on 15 July 2013. The appellant had entered with leave as a working holidaymaker which was valid until 10 March 2007. That leave was never varied or extended because before it expired the applicant married Ms Mbow and was issued with an EEA residence card. The judge stated that the appellant’s appeal rights in respect of the refusal of his application for permanent residence were exhausted on 12 July 2013 when his application for permission to appeal to the Upper Tribunal was refused. I interpose that it appears that that application for permission would have only related to the human rights grounds. FtT Judge Kamara did not accept that the appellant has had leave to enter or remain in the United Kingdom during the period of the residence card. The issuance of such a card “did not confer leave to remain under the Immigration Act, it merely provided evidence of the appellant’s pre-existing rights as the family member of an EEA national exercising Treaty rights in the United Kingdom.”

On 28 May 2014 First-tier Tribunal Judge Shimmin gave the appellant permission to appeal to the Upper Tribunal. Following a hearing on 21 July 2014 before Deputy Upper Tribunal Judge Mailer in a decision promulgated on 7 August (which is the subject of this appeal) the Upper Tribunal dismissed the appeal. As well as the points argued below it was submitted that because the applicant had travelled and returned to the UK during the period he held the residence permit as a non-EEA spouse of an EEA national, he had valid leave to enter the United Kingdom and so remained here legally. The Deputy Upper Tribunal judge’s reasons for dismissing the appeal were that, although the appellant had a right to reside in the United Kingdom under the 2006 Regulations as a non-EEA spouse of an EEA citizen, that did not constitute leave to remain pursuant to the Immigration Act or the Immigration Rules. The appellant was not required to obtain leave to remain under the 1971 Act or the Rules. The Deputy Upper Tribunal judge also stated that the fact that regulation 26 of the EEA Regulations gave the appellant a right of appeal to the FtT did not mean that he was thus provided with leave to remain in the United Kingdom.

It is clear, and it was accepted by Mr Kannangara, that a person who has a right under EU law to be in the United Kingdom does not require leave under the 1971 Act. This must include rights under the 2004 Directive and the 2006 Regulations. It is also clear from the decision of the Third Chamber of the CJEU in case C-325/09, Secretary of State for Work and Pensions v Dias (21 July 2011) [2011] 3 CMLR 40, that the grant of a residence permit to a national of a Member State is to be regarded not as a measure giving rise to rights but as a measure by a Member State serving to prove the individual position of a national of another Member State with regard to European Union law. The CJEU made it clear that residence permits have a declaratory as opposed to a constitutive character. The effect of residence permits on the position of family members of EU and EEA citizens who qualify under the Directive and the 2006 Regulations cannot differ from that of EU and EEA citizens. The family members’ rights stem from EU law and not from a decision of the Secretary of State. See also McDonald’s Immigration Law & Practice 9^th Edition at 6.156 where it is stated that “It is trite law that a residence card is the evidence of a right and not the source of it”, although, as was observed in Sanneh & Ors v The Secretary of State for Work and Pensions [2015] EWCA Civ 49, [2015] 1 WLR 1867 at [68], “Matters of entry and stay for non-EU citizens are matters outside the exclusive competence of the EU but the CJEU has laid down the principle that decisions which member states take on these matters must not be such as to make the rights of EU citizenship ineffective”. It was also observed in that case (at [170]) that “The right to reside conferred by EU law takes effect automatically in domestic law”.

It is common ground that there are two regimes potentially in play for those in this country who are not UK citizens. The first is that under the 1971 Act which requires a grant of leave by the Secretary of State. The second is that under the Free Movement of Citizens Directive 2004 and the 2006 Regulations. As is perhaps clear from the discussion above, the question to be asked in each category is different. Under the 1971 Act a person requires leave and if he or she does not have it, that person has no status in this country. Those who have status pursuant to a grant of leave may have that leave extended if an application to vary the leave is refused and there is an appeal against the immigration decision that is refusing the application.

The position of those claiming to have EEA rights differs. Their rights result from their position and, in the case of their dependants, the position of the EEA citizen. They either have those rights or they do not have those rights. The EEA citizen only has those rights so long as he or she remains a qualified person within regulation 6 of the 2006 Regulations. Although there is provision for an appeal against the decision refusing an application under the Regulations, no provision has been made in the Regulations for a right to remain in this country pending the exercise of such an appeal.

I do not accept that the Regulations and in particular paragraph 1 of Schedule 1 and paragraph 1 of Schedule 2 can be construed to mean that there is a different answer. Mr Kannangara’s submission that a person “should” have a status in effect similar to that given by section 3C of the 1971 Act is in effect a submission as to a reform designed to put such a person in a similar position to a person with leave under the 1971 Act. That process, however, is one for the legislature and not for the court. In the particular circumstances of this case where the appeal under the Regulations was abandoned and it appears that the appellant’s right to be in this country as a dependant of an EEA national may have ceased before the divorce in 2011 and thus before his application for permanent residence on 16 November 2011, his argument is, in my judgment, without merit.

It follows from this consideration of the Directive and the UK statutes and regulations that the appellant did not have leave to remain at the time he made his application via the “private life” route. It follows from this that the decision of the Secretary of State dated 16 August 2013 refusing that application could not have been an immigration decision.

As well as the provisions to which I have referred, paragraph 4(2) of schedule 2 to the 2006 Regulations expressly provides that a person who has been issued with a residence card shall have no right of appeal under section 82(1) of the 2002 Act, and regulation 19(5) recognises the distinction between the right to reside under EU law and the right to remain under the 1971 Act. It provides that a person must not be removed as a person who does not have or ceases to have a right under the 2006 Regulations it he has a right to remain by virtue of leave granted under the 1971 Act.

For these reasons, if my Lady and my Lord agree, this appeal will be dismissed.

I agree.

I also agree.