McCarthy & Ors, R (On the Application of) v Secretary of State for the Home Department

This case raises important issues regarding the power of the UK Government to control, and prevent abuse of, its own borders and the scope of the powers granted to it by the Frontiers Protocol and Article 35 of the Citizens Directive.

The Claimants are a family resident in Spain. The First Claimant is a dual British/ Irish national. The Second Claimant is a Colombian national and married to the First Claimant. The Third Claimant is their daughter.

The Claimants seek a declaration that Article 5(2) of the Citizens Directive 2004/38/EC On the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (“the Directive”) has not been correctly implemented in the United Kingdom, and a declaration that the Defendant (“the Secretary of State”) has acted unlawfully in issuing guidance that is incompatible with that Article.

Article 5(2) of the Directive directs Member States to exempt non-EEA family members from visa requirements otherwise applicable under national law if they hold an EU valid “residence card” issued in accordance with Article 10 of the Directive. The UK has refused to do so because of concerns as to abuse of rights and fraud and the lack of uniform or minimum standards for “residence cards” issued by other Member States.

Under current UK law, all non-EEA family members, including those with “residence cards” issued in other Member States, are required to obtain an EEA “family permit” from the UK Border Agency prior to entering the UK. The “family permit”, which is granted for a period of six months, confirms entry clearance to the UK for the purposes of exercising the rights granted by the Directive. Non-EEA family members may also be admitted if they can otherwise establish their entitlement to enter the UK, to accompany or join their EU citizen family member.

The Claimants contend that the Second Claimant, as a holder of a valid Spanish “Residence card of a family member of a Union citizen” issued under Article 10 of the Directive, has a right to travel with her husband to the UK and the UK is not entitled to require her to obtain any visa or to otherwise unlawfully obstruct her entry or to stamp her passport (see Articles 5(2) and 5(3) of the Directive). The Claimants contend these provisions of the Directive have, however, been incorrectly transposed in the UK by UK legislation which limits the definition of “residence card” to a card issued by the UK Government. The Claimants also contends that the Secretary of State, who is responsible for implementation of the Directive, has issued guidance which is incompatible with the Claimants’ rights under the Directive. As a result, the Second Claimant faces difficulties and obstacles in exercising her right of entry to the UK, in particular the onerous requirement of obtaining a “family permit” prior to entry.

The Secretary of State contends that the approach adopted by the UK is lawful on two bases:

The Claimants contend that the matter is acte clair in their favour and the Court should make the declarations sought. The Secretary of State contends that the matter is acte clair in her favour (at least on the basis of the Frontiers Protocol) and the Court should dismiss the application.

The Secretary of State also contends, in the alternative, that this case raises novel and important points of EU law of potentially wide application, which relate to some extent to the actions of other Member States, and which are the subject of parallel infringement proceedings being pursued by the European Commission. In these circumstances, and to avoid a divergence of approach across the EU, the Court should refer to the Court of Justice of the European Union (“CJEU”) the question of whether the UK’s approach to non-EEA family members holding “residence cards” issued by other Member States is lawful, having regard to the matters set out in the Secretary of State’s evidence and the terms of the Frontiers Protocol and Article 35 of the Directive.

Permission for judicial review was agreed.

The Preamble to the Directive provides that:

“Preamble

(5)

The right of all Union citizens to move and reside freely within the territory of the Member States should, if it is to be exercised under objective conditions of freedom and dignity, be also granted to their family members, irrespective of nationality. For the purposes of this Directive, the definition of ‘family member' should also include the registered partner if the legislation of the host Member State treats registered partnership as equivalent to marriage.

...

(8)

With a view to facilitating the free movement of family members who are not nationals of a Member State, those who have already obtained a residence card should be exempted from the requirement to obtain an entry visa within the meaning of Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement (1) or, where appropriate, of the applicable national legislation.”

Article 5 of the Directive provides for the “right of entry” to Member States of EU citizens and family members as follows (emphasis added):

“Article 5

1.

Without prejudice to the provisions on travel documents applicable to national border controls, Member States shall grant Union citizens leave to enter their territory with a valid identity card or passport and shall grant family members who are not nationals of a Member State leave to enter their territory with a valid passport.

No entry visa or equivalent formality may be imposed on Union citizens.

2.

Family members who are not nationals of a Member State shall only be required to have an entry visa in accordance with Regulation (EC) No 539/2001 or, where appropriate, with national law. For the purposes of this Directive, possession of the valid residence card referred to in Article 10 shall exempt such family members from the visa requirement.

Member States shall grant such persons every facility to obtain the necessary visas. Such visas shall be issued free of charge as soon as possible and on the basis of an accelerated procedure.

3.

The host Member State shall not place an entry or exit stamp in the passport of family members who are not nationals of a Member State provided that they present the residence card provided for in Article 10.

4.

Where a Union citizen, or a family member who is not a national of a Member State, does not have the necessary travel documents or, if required, the necessary visas, the Member State concerned shall, before turning them back, give such persons every reasonable opportunity to obtain the necessary documents or have them brought to them within a reasonable period of time or to corroborate or prove by other means that they are covered by the right of free movement and residence.”

Articles 9 and 10 provide:

“Article 9

Administrative formalities for family members who are not nationals of a Member State

1.

Member States shall issue a residence card to family members of a Union citizen who are not nationals of a Member State, where the planned period of residence is for more than three months.

...

Article 10

Issue of residence cards

1.

The right of residence of family members of a Union citizen who are not nationals of a Member State shall be evidenced by the issuing of a document called ‘Residence card of a family member of a Union citizen' no later than six months from the date on which they submit the application...”

2.

For the residence card to be issued, Member States shall require presentation of the following documents:

(a)

a valid passport;

(b)

a document attesting to the existence of a family relationship or of a registered partnership;

(c)

the registration certificate or, in the absence of a registration system, any other proof of residence in the host Member State of the Union citizen whom they are accompanying or joining;

(d)

in cases falling under points (c) and (d) of Article 2(2), documentary evidence that the conditions laid down therein are met;

(e)

in cases falling under Article 3(2)(a), a document issued by the relevant authority in the country of origin or country from which they are arriving certifying that they are dependants or members of the household of the Union citizen, or proof of the existence of serious health grounds which strictly require the personal care of the family member by the Union citizen;

(f)

in cases falling under Article 3(2)(b), proof of the existence of a durable relationship with the Union citizen.”

The rights conferred by the Directive are subject to certain exceptions, in particular, Article 35, which is set out later in this judgment.

The relevant UK legislation implementing, or purporting to implement, the Directive is the Immigration (European Economic Area) Regulations 2006 (the “EEA Regulations”).

Regulation 11 provides for the "Right of admission to the United Kingdom" of the family members of EU citizens as follows (emphasis added):

“Regulation 11

(2)

A person who is not an EEA national must be admitted to the United Kingdom if he is a family member of an EEA national, a family member who has retained the right of residence or a person with a permanent right of residence under regulation 15 and produces on arrival—

(a)

a valid passport; and

(b)

an EEA family permit, a residence card or a permanent residence card.

(3)

An immigration officer may not place a stamp in the passport of a person admitted to the United Kingdom under this regulation who is not an EEA national if the person produces a residence card or permanent residence card.

(4)

Before an immigration officer refuses admission to the United Kingdom to a person under this regulation because the person does not produce on arrival a document mentioned in paragraph (1) or (2), the immigration officer must give the person every reasonable opportunity to obtain the document or have it brought to him within a reasonable period of time or to prove by other means that he is—

(a)

an EEA national;

(b)

a family member of an EEA national with a right to accompany that national or join him in the United Kingdom; or

(c)

a family member who has retained the right of residence or a person with a permanent right of residence”

Regulation 12 provides for the “Issue of EEA family permit” as follows:

“Regulation 12

(1)

An entry clearance officer must issue an EEA family permit to a person who applies for one if the person is a family member of an EEA national and—

(a)

the EEA national—

(i)

is residing in the UK in accordance with these Regulations; or

(ii)

will be travelling to the United Kingdom within six months of the date of the application and will be an EEA national residing in the United Kingdom in accordance with these Regulations on arrival in the United Kingdom; and

(b)

the family member will be accompanying the EEA national to the United Kingdom or joining the EEA national there.

...

(4)

An EEA family permit issued under this regulation shall be issued free of charge and as soon as possible.”

Regulation 17 provides for the issuing of “residence cards” by the UK.

Regulation 2 provides under “General interpretation” that:

“Regulation 2

(1)

In these Regulations — ... “residence card” means a card issued to a person who is not an EEA national, in accordance with regulation 17, as proof of the holder's right of residence in the United Kingdom as at the date of issue; …”

The Explanatory Memorandum to the EEA Regulations states that Regulation 11 “sets out ... the right of EEA nationals and their family members to be admitted to the United Kingdom provided they have the relevant documents”.

The Transposition Note to the Explanatory Memorandum identifies the provisions implementing Article 5 of the Directive. It provides that Article 5(2) is implemented by Regulation 11(2).

The Secretary of State’s published guidance on “EEA family permits”, her Border Force Operations Manual, EEA Nationals & their family members, and her Immigration Directorate Instructions, Chapter 7 Section 3, EEA Nationals & their Family Members, reflects the provisions of Regulation 5 and 11 of the EEA Regulations.

The Secretary of State’s Guidance to Carriers also reflects the provisions of Regulation 5 and 11 of the EEA Regulations and imposes carriers’ liability for permitting inadequately documented passengers to travel to the UK, i.e. non-EEA family members who have not obtained an EEA “family permit”.

In summary, the current position under UK legislation is that non-EEA family members, who have no right of residence in the UK, will only be admitted to the UK in accordance with Regulation 11 of the EEA regulations without a visa where, in addition to showing a valid passport:

In practice, a non-EEA national who cannot prove his or her entitlement to enter the UK at the airport/port is likely to be given Temporary Admission, normally for 7 days, and would be expected to demonstrate the right of entry before the end of that 7-day period.

On 10^th December 2008 the Commission issued a report to the European Parliament and the Council on the application of the Directive which criticised a number of Member States for failing to transpose the provisions of Article 5(2) correctly, including the UK, Ireland, Austria, Denmark and Estonia. It stated:

“3.2.

Right of entry

The transposition of Article 5(2) is often incorrect and/or incomplete, and the legislative shortcomings result in frequent violations of the rights of family members, notably those who are third country nationals.

... Five Member States [the footnote lists the UK and Ireland amongst them] do not provide for the visa exemption for family members holding a residence card issued by another Member State.”

The Commission issued a simplified “Guide on how to get the best out of Directive 2004/38/EC” which stated (emphasis in original):

“Residence card = no visa

Possession of the valid residence card issued by any Member State exempts the family members from the visa requirement in all Member States.”

On 2^nd July 2009, the Commission issued a Communication to the European Parliament and the Council with further guidance on the Directive which stated:

“Residence cards issued under Article 10 of the Directive to a family member of an EU citizen residing in the host Member State, including those issued by other Member States, exempt their holders from the visa requirement when they travel together with the EU citizen or join him/her in the host Member State.”

The Claimants lodged a complaint with the Commission regarding Ireland’s failure properly to implement Article 5(2) of the Directive. Ireland’s provision limited the implementation of the rights of entry conferred by the Directive to the holders of “residence cards” issued by Ireland.

On 19^th September 2011, the Commission issued a notification that, following contacts with the Irish authorities on their interpretation of Article 5(2) of the Directive, “the Irish authorities have decided to amend their legislation to comply with that provision of the Directive”.

On 20^th October 2011, the Claimants lodged a similar complaint with the Commission regarding the UK. On 25^th October 2011, the Commission replied stating that under Article 5(2) of the Directive, the Second Claimant should not be obliged to obtain any entry visas “as she holds a valid Spanish residence card issued under Article 10 of the Directive” and stated that having studied the UK laws, the Commission had concluded that Regulation 11(2) of the UK EEA Regulations constituted “an incorrect transposition” of Article 5(2) of the Directive.

On 22^nd June 2011 the Commission issue a formal notice to the UK under Article 258 of the Treaty on the Functioning of the European Union (“TFEU”). On 22^nd September 2011 the UK responded with its observations on the Commision’s formal notice of 22^nd June 2011. In a letter to the Claimant’s dated 25^th October 2011, the Commission indicated that it was still analysing the UK’s reply to decide on the next steps. On 26^th April 2012 the Commission issued its reasoned opinion. The UK’s reply to the reasoned opinion was sent to the Commission on 24^th July 2012.

On 21^st October 2011, the Claimants sent a letter before claim to the Secretary of State. The Secretary of State responded on 8^th November 2011. The Claimants’ Judicial Review Claim was filed on 3^rd January 2012. The Secretary of State’s Detailed Grounds of Defence were filed on 7^th August 2012.

The Claimants revived an application for disclosure by the Secretary of State of the Commission’s Reasoned Opinion and the UK Government’s observations in reply (see above). The Claimants’ application for disclosure has most recently been rejected on paper by Kenneth Parker J on 29^th October 2012, who ruled that it was for the Court to determine the legal issues on the basis of the arguments advanced and it was likely that the Court would be able to do so in this case without the need to see the Commission’s reasoned opinion and the UK’s observations on it. These documents have also been the subject of a (failed) Freedom of Information application by the Claimants.

Mr Henderson put the application on the basis of compliance with the ‘duty of candour’ and suggested that the Secretary of State had adopted inconsistent positions in April 2012 in first seeking an adjournment in order to consider the Commission’s Reasoned Opinion and then submitting it was irrelevant to this action. Mr Facenna resisted the application on the basis that disclosure was inappropriate and unnecessary and, in any event, the Secretary of State had conscientiously complied with her ‘duty of candour’.

At the hearing, I declined to accede to the Claimants’ application for disclosure. It seemed to me that there were a number of grounds for refusing, in particular: (i) the Claimants were, in effect, seeking pre-action disclosure from the Secretary of State; (ii) the Commission did not consent to disclosure because to do so would undermine the principles of “genuine cooperation and mutual trust” required in infringement investigations and the need to preserve confidentiality of documents relating to the Commission’s infringement investigations (see the letters from the Director-General dated 29^th May 2012 and 26^th October 2012); (iii) disclosure in judicial review is only required where necessary to determine the issues ‘fairly and justly’, and here I am able to resolve the issues without such resort; (iv) there is nothing to suggest any ‘lack of candour’; or the adoption of inconsistent positions, on the part of the Secretary of State; and (v) in any event, it transpired that the Claimants were under something of a misapprehension as to the contents of the Reasoned Opinion: it contains nothing about the Article 35 point since, as Mr Facenna explained, the Article 35 point was not raised until 24th July 2012 when the UK’s sent its reply to the Commission’s reasoned opinion.

The witness statements of the First and Second Claimants explained how the refusal of the UK Government to recognise the Second Claimant’s Spanish “residence card” as entitling her to enter the UK with the First Claimant pursuant to Article 5(2) of the Directive, has caused her ‘serious and persistent difficulties and obstacles’ in exercising her “right of entry” to the UK and required her to undergo onerous procedures in order to obtain a “family permit” which involved considerable time, trouble and expense. The Claimants are required to travel to Madrid and attend the British Consulate in order to obtain a “family permit” at considerable inconvenience and expense. This process had to be repeated every six months (in contrast to a Spanish “residence card” which is valid for 5 years). The Claimants say that the First Claimant has a medical condition which means that he needs to travel with his family when he comes to the UK to see his cardiologist.

The Second Claimant explained that, unless she obtains a “family permit” before attempting to enter the UK, she faces obstruction from the Defendant’s officials at border control and carriers will not permit her to travel to the UK. She was denied boarding by Easy Jet and other carriers a number of times in 2011 for flights to the UK on the basis of guidance issued to carriers by the Secretary of State.

The Claimants contend that the failure of the Secretary of State to transpose the requirements of Article 5(2) correctly into domestic law, has had a serious adverse impact on the rights of the family as a whole to enter the UK freely.

The Court has had the benefit of detailed witness statements from the Head of EU Migration and Free Movement Division at the Home Office, International Directorate, Mr Richard Bradley, and the Home Office Deputy International Director, Ms Emma Haddad.

In my view, the thrust of Mr Bradley and Ms Haddad’s evidence on behalf of the Secretary of State can be usefully summarised as follows. The Home Office has serious concerns as to: (1) the risk of widespread fraud and abuse in relation to EU “residence cards”; (2) the lack of uniformity amongst EU Member States as to the requirements for such “residence cards”; (3) the failure of most EU Member states to adopt any adequate minimum standards for such “residence cards”; (4) the fact that the UK is a growing target for illegal immigration, particularly operated by criminal gangs; (5) the length of time it is likely to take to get the EU to agree to take effective steps to address the problem of fraud and abuse of free movement of rights; and (6) the serious implications for UK border control if EU “residence cards” are recognised in the meantime. For these reasons, the UK Government currently refuses to recognise EU “residence cards” as a means of non-EEA family members gaining entry to the UK and requires all non-EEA family members to produce a valid EEA “family permit” as a condition for entering the UK (save for those with a UK “residence card”).

The following particular points emerge from the evidence of Mr Bradley and Ms Haddad. First, the UK has experienced targeting of the non-EEA family member right of entry as a means to circumvent stringent domestic immigration controls. Such targeting includes the use of fraudulent, and fraudulently obtained, EU documents, and the use of valid documents that have been obtained through fraudulent means, including sham marriages, false supporting documentation or false claims of dependency.

Second, there is evidence of documents issued by other EU Member States being targeted by forgers to enable third country nationals to evade immigration controls and abuse free movement rights. In 2011 the UK Border Force detected 1,494 non-EU citizens who attempted to gain entry to the UK by falsely presenting themselves as nationals of an EU Member State, with forged Italian and Greek ID cards accounting for more than one-in-five of the false documents identified.

Third, a number of Member States have experienced similar problems. Fraud and abuse of free movement rights by third country nationals has been recognised as a serious problem by the Member States. In an April 2012 strategy document, the European Council, identified “abuse of free movement rights by third country nationals” as a “strategic priority”. One of the goals identified by the Council of Europe within that strategic priority is “to prevent fraudulent acquisition and use of free movement rights by third country nationals” and specifically: “To ensure that travel documents used within the EU, including their issuance and validation, meet minimum security standards, with a particular focus on ID and residence cards.” The Secretary of State and the UK Government have been raising and pursuing these issues at the highest levels (see below).

Fourth, in 2011 the UK Border Agency carried out an analysis of other Member States’ “residence cards” by reference to the minimum security standards agreed by the International Civil Aviation Organisation (“ICAO”) for machine-readable travel documents. That analysis found, in particular, that: (i) the cards issued by 12 Member States did not meet those standards; (ii) 13 EEA states had reported forgery in connection with the use of “residence cards” issued by other Member States; and (iii) cards issued by 19 EEA States had no clear indication as to whether they were issued to the third country national on the grounds that he or she was the family member of an EU citizen, i.e. for the purposes of Article 10 of the Directive, or on some other basis (see further below).

Fifth, for example, whilst the Spanish “residence card” held by the Second Claimant is machine-readable and therefore complies with minimum ICAO standards, it is essentially a basic plastic card with no biometric chip and minimal security features. The optically variable ink is readily available commercially and adds little protection to the document. The image and personal data appear to be printed onto a laminate that covers the card, which would be easy to remove and replace using commercially available techniques and equipment. It contains some ultra-violet safeguards but the design is ineffective and the inks are available commercially.

Sixth, by comparison, the residence document issued by the United Kingdom (known as the “FMOP” Residence Document) takes the form of an adhesive sticker (vignette) affixed to the holder’s passport, authenticated by an embossing stamp, and made of specialist secure paper protected by a suite of security features, including a holographic feature, which makes it difficult to alter or forge.

Seventh, the other problem, which is illustrated by the EU “residence card” held by the Second Claimant, is the absence of any uniform design, and the failure of many Member States to issue cards which carry the clear title “Residence card of a family member of a Union Citizen”, as required by Article 10 of the Directive. As Ms Haddad notes in her evidence, Mrs McCarthy’s card is printed in Spanish only. Although her status as a family member of an EU citizen is described in Spanish under a heading “Aspectos laborales o motivo de concesiòn”, the card does not carry the title “Residence card of a family member of a Union Citizen”, as required by Article 10 of the Directive. It would not be clear to a border official, particularly one who does not speak Spanish, that the card had been issued pursuant to Article 10 of the Directive. Confusingly, the First Claimant’s details also appear on the card. I should add that it was not suggested that the Second Claimant was not perfectly entitled to a Spanish “residence card” in view of her marriage to the First Claimant. Her objection is to having to obtain a “family permit”.

Eighth, for cultural and economic reasons the UK is an attractive destination for many third country nationals: the absence of uniform minimum standards for Article 10 “residence cards”, and the potential for fraud and abuse, is a matter of real concern to the Government.

Ninth, the Secretary of State and the UK Government have been raising and pursuing all these issues at the highest levels in the EU, in particular the UK’s concerns as to systemic abuse and the lack of minimum security standards for EU “residence cards” issued under Article 10 of the Directive.

Mr Bradley explains as follows:

“The so-called “EEA route” is being targeted as a means to circumvent domestic immigration controls. Fraudulent and fraudulently obtained EU documents, including “residence cards”, ID cards and passports, are only one form of abuse. In the UK we are also seeing abuse of the route in the form of: sham marriages between third country nationals and EEA nationals; fraudulent and fraudulently obtained supporting documentation (e.g. marriage certificates); and false claims of dependency.”

Mr Bradley states that in 2011, of the 1,741 reports of suspected sham marriages received by the UKBA, around 42% involved EEA nationals who were not British nationals marrying a third country national. Sham marriage numbers are increasing. Europol has indicated the scale of marriage abuse is difficult to estimate but it is substantial. 8,000 marriages of convenience were reported in 2006 but EUROPOL states the actual number “is most probably significantly higher”.

In 2011 the UK corresponded via diplomatic channels with other Member States regarding the fraudulent use of the EU “residence card”. The result of these discussions was striking and revealed the following responses from EU correspondents:

In its Report Europol’s role in combating criminal networks involved in smuggling of migrants and illegal migration (EEF.10/2/09/Add.1) dated 20^th January 2009, Europol highlighted the role of organised crime groups involved in the facilitation of illegal immigration and their increased use of falsified documents of all types (see paras. 2.1 and 2.2).

In its Report OCTA 2011 EU Organised Crime Threat Assessment, Europol stated: “Legislation aimed at safeguarding certain inalienable individual or social rights is manipulated by organised crime groups with specialist expertise.” The Report concluded (emphasis in original):

“Modus Operandi

Organised crime groups constantly adapt and upgrade their modus operandi in response to increasing difficulties in facilitating undetected access into the EU through green and green borders. The most professional criminal groups now recruit would-be migrants by offering them an apparently legitimate means of entry. Counterfeit forged or fraudulently obtained personal and travel documents, including passports, visas and residence permits, are procured with the assistance of skilled specialists. …”

Ms Haddad summarises the Secretary of State’s and Home Office’s concerns as follows (emphasis added):

“[N]ational identity cards and passports are currently targeted by third country nationals seeking illegal entry to the UK because of the access and rights which they grant to the holder. Were the UK to accept other Member States’ “residence cards” as a form of entry clearance I have no doubt that the fraudulent use of those documents would be viewed as an attractive means to obtain entry to the UK, particularly if (as the Claimants argue) such cards would have to be accepted at the border, irrespective of the language in which they are printed, the lack of security measures used, and the inconsistent approach to issuing such cards across the Member States. This would, in my view, represent a serious weakening of our border controls and prevent the carrying out of proper and consistent checks on third country nationals, some of whom may be attempting to misuse or abuse EU rights to enter the UK.”

The UK Government’s position is that, given the numbers of non-EU citizens being detected attempting to gain entry to the UK by falsely presenting themselves as EU nationals, allowing third country visa nationals to enter the UK on the basis of a “residence card” issued by another EU Member State would create an unacceptable risk to the UK’s border controls and undermine the UK’s longstanding preservation of control over its own borders recognised by the Frontiers Protocol. For these reasons, the UK requires even those non-EEA family members who hold an EU “residence card” to comply with the EEA “family permit” system, which seeks to enable non-EEA family members to travel to the UK in accordance with rights granted under the Directive, while retaining sufficient checks and controls so as:

The Claimants take issue with the particular areas of concern outlined in Mr Bradley’s and Ms Haddad’s witness statements (see below). In my view, however, none of the criticisms regarding, e.g. alleged inconsistencies and shortcomings in Mr Bradley’s evidence (see paragraph 68ff. of the Claimants’ Skeleton) are of any substance. Further, the Claimants’ case is not advanced by reliance on Blake J’s unremarkable observation in Papajorgji (EEA spouse – marriage of convenience) Greece [2012] UKUT 38 regarding the burden of proof being on the party alleging, e.g., a liaison is a ‘marriage of convenience’.

I am entirely satisfied that the Secretary of State’s serious concerns are reasonable and justified. It would appear that EU “residence cards” represent a potentially serious weakness in the current system and are ripe for exploitation by criminal immigration gangs and others seeking to achieve illegal entry to the UK for non-EEA family members. There is a palpable risk that a significant proportion of those currently engaged in the business of sham marriages etc. would switch to the business of fake EU “residence cards” in order to gain illegal access to the UK if such a route was open to them. For these reasons, in my judgment, the current stance of the UK Government, in refusing to allow EU “residence cards” to be used as a waiver to the ‘visa entry’ requirement, is clearly sensible, necessary and objectively justified on the facts.

Mr Mark Henderson and Mr David Lemer, Counsel for the Claimants, helpfully summarised the Claimants’ case as follows:

Mr Gerry Facenna, Counsel for the Secretary of State, helpfully summarised the Secretary of State’s case in the following propositions:

Most EU Member States have no border controls for those entering from other Member States. They subscribe to the Schengen Acquis implementing the Schengen Agreement of 14 June 1985 (referred to in Article 1(2) of Council Decision 1999/435/EC of 20 May 1999 (OJ L 176, 10.7.1999, p. 1.). The UK and Ireland are not participant countries in the borders control elements of Schengen, have retained their border controls and do carry out border checks on all those arriving from mainland Europe.

On 19^th June 1990, the signatories to the Schengen Agreement signed the Schengen Convention dealing with the abolition of border checks at the frontiers between them and the reinforcement of controls at external borders. A Protocol annexed to the Treaty of Amsterdam (and now to the Treaty of Lisbon) integrates the Schengen "acquis" (i.e. the existing legislation) into the framework of the European Union.

The rights of EU citizens and their family members to enter the UK are subject to the provisions contained in the Frontiers Protocol (“TFEU”). The Frontiers Protocol buttresses the UK’s longstanding preservation of its control over its own border and reflects a previous protocol in similar terms appended to the Treaty of Amsterdam in 1997.

It is instructive to set out the Frontiers Protocol in full (emphasis added):

“PROTOCOL (No 20)

ON THE APPLICATION OF CERTAIN ASPECTS OF ARTICLE 26 OF THE TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION TO THE UNITED KINGDOM AND TO IRELAND

THE HIGH CONTRACTING PARTIES,

DESIRING to settle certain questions relating to the United Kingdom and Ireland,

HAVING REGARD to the existence for many years of special travel arrangements between the United Kingdom and Ireland,

HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty on European Union and the Treaty on the Functioning of the European Union:

Article 1

The United Kingdom shall be entitled, notwithstanding Articles 26 and 77 of the Treaty on the Functioning of the European Union, any other provision of that Treaty or of the Treaty on European Union, any measure adopted under those Treaties, or any international agreement concluded by the Union or by the Union and its Member States with one or more third States, to exercise at its frontiers with other Member States such controls on persons seeking to enter the United Kingdom as it may consider necessary for the purpose:

(a)

of verifying the right to enter the United Kingdom of citizens of Member States and of their dependants exercising rights conferred by Union law, as well as citizens of other States on whom such rights have been conferred by an agreement by which the United Kingdom is bound; and

(b)

of determining whether or not to grant other persons permission to enter the United Kingdom.

Nothing in Articles 26 and 77 of the Treaty on the Functioning of the European Union or in any other provision of that Treaty or of the Treaty on European Union or in any measure adopted under them shall prejudice the right of the United Kingdom to adopt or exercise any such controls. References to the United Kingdom in this Article shall include territories for whose external relations the United Kingdom is responsible.

Article 2

The United Kingdom and Ireland may continue to make arrangements between themselves relating to the movement of persons between their territories ("the Common Travel Area"), while fully respecting the rights of persons referred to in Article 1, first paragraph, point (a) of this Protocol. Accordingly, as long as they maintain such arrangements, the provisions of Article 1 of this Protocol shall apply to Ireland under the same terms and conditions as for the United Kingdom. Nothing in Articles 26 and 77 of the Treaty on the Functioning of the European Union, in any other provision of that Treaty or of the Treaty on European Union or in any measure adopted under them, shall affect any such arrangements.

Article 3

The other Member States shall be entitled to exercise at their frontiers or at any point of entry into their territory such controls on persons seeking to enter their territory from the United Kingdom or any territories whose external relations are under its responsibility for the same purposes stated in Article 1 of this Protocol, or from Ireland as long as the provisions of Article 1 of this Protocol apply to Ireland.

Nothing in Articles 26 and 77 of the Treaty on the Functioning of the European Union or in any other provision of that Treaty or of the Treaty on European Union or in any measure adopted under them shall prejudice the right of the other Member States to adopt or exercise any such controls.”

The Frontiers Protocol is a striking and powerful instrument on its face. Article 1 provides in material part (underlined above) that the United Kingdom shall be entitled “….notwithstanding Articles 26 and 77 [or any other TFEU provision or measure] …to exercise at its frontiers with other Member States such controls on persons seeking to enter the United Kingdom as it may consider necessary for the purpose: …of verifying the right to enter the United Kingdom of citizens of Member States and of their dependants exercising rights conferred by Union law.”(Article 26 of the TFEU is the article which sets up the internal EU market and deals specifically with “freedom of movement”). This gravamen is then repeated again for good measure at the end of Article 1.

Article 2 applies Article 1 to Ireland so long as the common travel area arrangement between the UK and Ireland remains in place.

Article 3 is a reciprocal provision allowing other Member States to exercise controls on persons seeking to enter their territory from the UK (or Ireland) under the same conditions.

The parties put forward rival contentions on the construction of the Frontiers Protocol. The choice is essentially between a broad and a narrow construction of the Frontiers Protocol. Counsel’s researches have not unearthed any previous decision touching on the Frontiers Protocol or its precursor.

The Secretary of State puts forward a broad construction of the Frontiers Protocol. Mr Facenna of Counsel’s submissions were essentially three-fold. First, under the Frontiers Protocol, the UK is expressly entitled to exercise such controls at its frontiers on persons seeking to enter the United Kingdom as it considers necessary for the purposes of (a) verifying the rights of EU citizens and their dependents to enter the UK conferred by Union law, or (b) determining whether or not to grant other persons permission to enter the United Kingdom.

Second, for the reasons set out in Mr Bradley’s and Ms Haddad’s evidence, the UK considers it necessary to maintain controls on non-EEA family members to enable the Border Agency: (a) to verify that those seeking to enter the UK pursuant to free movement rights granted to family members under the Directive are entitled to do so; and (b) to carry out appropriate checks to ensure that there is no reason to refuse other persons permission to enter the UK, e.g. on grounds of public security.

Third, the controls in question are those established under Regulation 11 of the EEA Regulations, which require non-EEA family members to produce on arrival at the UK border: (a) a valid passport; and (b) a valid EEA “family permit”, alternatively to prove their entitlement to enter the UK as an EEA family member within a reasonable time by some other means (see above).

The Claimants put forward a narrow construction of the Frontiers Protocol. Mr Henderson submitted that the Secretary of State’s reliance on the Frontiers Protocol was ‘wholly misconceived’ for three reasons. The first was essentially topological: the Frontiers Protocol allows the UK to retain its ability to exercise controls “at its frontiers”, but does not permit the imposition of unilateral entry visa or entry clearance requirements, i.e. in advance of the border. The second was that the Frontiers Protocol permits controls for the limited purpose of “verifying” the right of EU citizens and dependents to enter the UK but does not permit it to remove the right to enter altogether. The third was that the Frontiers Protocol does not authorise unlawful guidance to ‘incentivise’ carriers to prevent “residence card” holders from reaching UK frontiers. In simple terms, the Frontiers Protocol permits border checks, but does not otherwise permit interference with EU freedom of movement rights.

In my judgment, there are strong reasons for preferring the Secretary of State’s construction and for rejecting the Claimants’ construction as too narrow as well as not consistent with the raison d’être of the Frontiers Protocol.

First, the language of the Frontiers Protocol is broad and permissive: the UK is granted the widest possible discretion to impose “such controls…as it may consider necessary”. It effectively sweeps EU law aside as an obstacle to the exercise of the discretion: the UK’s discretion is exercisable notwithstanding anything in EU law, i.e. whether Article 26 or any other TFEU provision.

Second, the Frontiers Protocol entitles the UK “to exercise at its frontiers…controls on persons seeking to enter the United Kingdom”. The phrase “to exercise… controls” is broad: it is not merely confined to carrying out ‘checks’ or ‘examinations’, but includes the power to ‘regulate’ (c.f. the Oxford English Dictionary). Such ‘frontier controls’ may include a whole gamut of documentary and legal requirements which, whilst they take effect at the border in the legal sense of enabling or denying the “right to enter” the UK, will involve the person seeking entry to UK in taking practical steps much earlier to obtain necessary official documents and authorisations at State offices and British Consulates, viz. e.g. obtaining passports, visas etc. The Claimants’ argument that guidance to air carriers to refuse to allow passengers without the necessary “family permit” to board aircraft for the UK is impermissible because it is not a “control” that takes place at the “frontier”, lacks any substance. The relevant measure under scrutiny is Regulation 11 which requires non-EEA family members to produce “on arrival” at the frontier a “family permit” etc. and, therefore, has practical legal effect at the border. The guidance to air carriers is merely derivative of this and is an administratively necessary and sensible way to enforce Regulation 11 and to ensure that people do not cross the border (by air) without first obtaining the necessary papers.

Third, thus the imposition by the UK of ‘entry visa’ or ‘entry clearance’ requirements as a sine qua non for admission to the UK is de facto and de jure the exercise of a “control” by the UK “at its frontiers” because it is at the border that admission is made or refused if the relevant documents are or are not produced (see above). It is worth re-iterating that Regulation 11 expressly provides that a non-EEA national “must be admitted” if he is a family member of an EEA national and if he “produces on arrival” a valid passport and a EEA family permit.

Fourth, it is important to have regard to the true basis of the “right to enter”. The structure of Article 5(2) of the Directive is instructive. The first sentence contains the basic rule: that Member States are entitled to require non-EEA family members to obtain an ‘entry visa’ under national law. The second sentence is an exception to the basic rule: non-EEA family members who possess an Article 10 “residence card” are exempt from any ‘entry visa’ requirement imposed under the first sentence. Thus, the underlying “right to enter” is that derived from the obtaining of an ‘entry visa’ not the obtaining of a “residence card”. The latter merely gives rise to a waiver of the former. A “residence card” does not, in itself, give rise to a “right to enter”. Accordingly, there is no reason, either in principle or of construction, why the UK should not be entitled to ensure “verification of the right to enter the United Kingdom” by imposing a requirement or “control” that the basic ‘entry visa’ must be produced at the border in any event. The “control” does not remove the “right to enter” under EU law. It merely verifies it.

Fifth, full meaning must be given to the proviso in Article 1 of the Frontiers Protocol: “Nothing in Articles 26 and 77 of the Treaty on the Functioning of the European Union or in any event other measure adopted under that Treaty shall prejudice the rights of the United Kingdom to adopt or exercise such controls…”

Sixth, the Claimants’ reliance on the principle of ‘sincere co-operation’ between Members States is misplaced. The principle primarily operates in the context of the strong presumption that Member States will comply with their ECHR obligations and where there are specified minimum standards (c.f. NS v. SSHD [2012] 2 CMLR 9). There are no minimum standards for EU “residence cards”.

Seventh, thus, the UK requirement that all non-EEA nationals are required to produce a valid EEA “family permit” at the UK frontier is a “control” exercised for the purpose of “verifying” that such persons do have a right to enter the UK under EU law.

Eighth, the Secretary of State’s construction is consistent with the underlying purpose of the Frontiers Protocol, which is to ensure that the UK has the power to control, and prevent abuse of, its borders.

For these reasons, in my judgment, the Secretary of State’s construction of, and reliance upon, the Frontiers Protocol is correct.

The Secretary of State has a second string to her bow. She relies, in the alternative, on Article 35 of the Directive. Article 35 provides as follows:

“Article 35

Abuse of rights

Member States may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Directive in the case of abuse of rights or fraud, such as marriages of convenience. Any such measure shall be proportionate and subject to the procedural safeguards provided for in Articles 30 and 31.”

Mr Facenna submitted that the Secretary of State’s current refusal to give effect to the exemption in Article 5(2) of the Directive (and to require non-EEA family members to produce an EEA “family permit” for entry to the UK irrespective of whether they are in possession of another Member State's “residence card”), is justified on the true construction of Article 35 of the Directive since it is a “necessary measure” in order to combat “abuse of rights or fraud”.

Mr Henderson and Mr Lemer’s main argument on behalf of the Claimants on construction was that Article 35 permits Member States to take measures on a case-by-case basis and does not permit Member States to refuse to respect rights conferred by the Directive on a blanket basis, or permit a policy-based denial of such rights. They submitted that such a construction would be inconsistent with the genesis of Article 35 which is found in the case law regarding individual abuse of rights and fraud, and Articles 30 and 31 of the Directive which lay down procedures for individual notification and challenges.

The choice is again between a broad and a narrow construction of Article 35.

In my judgment, there are strong reasons for preferring the Secretary of State’s broad construction of Article 35 and rejecting the Claimants’ construction as too narrow and inconsistent with the raison d’être of Article 35.

First, the wording of Article 35 is in broad and general terms: Members States are entitled to adopt necessary measures “to refuse, terminate or withdraw any right conferred by this Directive in the case of abuse of rights or fraud…”.

Second, the entitlement to adopt “necessary measures” is broad and unlimited: the entitlement is to adopt “necessary measures… to refuse, terminate or withdraw any right conferred by this Directive”. It is subject only to the conditions of proportionality and procedural safeguards and clearly not limited merely to marriages of convenience. The fact that the genesis of Article 35 may be in EU case law regarding individual abuse of rights and fraud, does not mean that it was not intended to grant Member States the power to take “necessary measures” to cover systemic abuse of rights and fraud.

Third, it is important to have regard to Recital (28) of the Directive which articulates the underlying concern of Article 35 and its raison d’être:

“To guard against abuse of rights or fraud, notably marriages of convenience or any other form of relationships contracted for the sole purpose of enjoying the right of free movement and residence, Member States should have the possibility to adopt the necessary measures.”

As Arden LJ confirmed in TC (Kenya) v SSHD [2008] EWCA Civ 54 at [39]:

“The clear purpose of Article 35 is to give effect to recital 28 to the Directive which states that member states should have the possibility of adopting measures to guard against abuse of rights or fraud. That recital is not limited to public security or public health.”

The language of Recital (28) is redolent of prospective measures viz. “[to] guard against abuse of rights or fraud..”. It is not confined to sham marriage.

Fourth, the reference in Article 35 to “the procedural safeguards” in Articles 30 and 31 does not limit the scope of Article 35 to individual cases only. The general language of Article 35 militates against such a narrow construction. The entitlement is not merely “to refuse, terminate or withdraw any right” etc. The entitlement is to take (any) “necessary measures” (plural) “to refuse, terminate or withdraw any right” etc. conferred by the Directive. Furthermore, such a broad construction would not render the references to Article 30 and 31 unnecessary or otiose: individuals whose rights were refused, terminated or withdrawn on a case-by-case basis would naturally be entitled to these procedural safeguards; and general categories of persons affected by general prospective measures would be notified by promulgation of the laws, regulations or measures themselves.

Fifth, the requirement under Article 35 to comply with the procedural safeguards in Articles 30 and 31 will be satisfied in respect of any non-EEA family member who is denied entry to the UK as a result of the decision not to recognise other Member States’ “residence cards”. The procedural safeguards provided for in Articles 30 and 31 apply to those who have been denied leave to enter or reside in another Member State, as is clear from Recital (25):

“(25)

Procedural safeguards should also be specified in detail in order to ensure a high level of protection of the rights of Union citizens and their family members in the event of their being denied leave to enter or reside in another Member State, as well as to uphold the principle that any action taken by the authorities must be properly justified.”

It is therefore not the case, as the Claimants contend, that Articles 30 and 31 of the Directive would require the Secretary of State to notify each and every holder of a “residence card” issued by another Member State of the withdrawal of their rights and provide them, individually, with the means to challenge that measure. The procedural rights under the Directive only arise in cases where a person has actually sought to exercise the right of entry or right of residence granted by the Directive and it has been denied. If a non-EEA national family member with a “residence card” issued by another Member State is refused an EEA “family permit” by the UK Border Agency, or is refused entry at the UK border because they do not have such a permit, they will be notified of the reasons for that decision in writing and the means by which that decision may be appealed (under Part 6 of the EEA Regulations).

Sixth, it is instructive to contrast the terms of Article 35 with the terms of Article 27. Article 27 does contain an express limitation. It provides that measures taken on grounds of public security or public policy must be “based exclusively on the personal conduct of the individual concerned” and that “justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted”. In contrast, there is no such limitation on the “necessary measures” that may be adopted under Article 35. If it had been intended that measures taken under Article 35 could only be taken on a case-by-case basis the Directive could have said so, like Article 27. Article 35 does not do so. In TC (Kenya) v SSHD (supra) the Court of Appeal rejected the argument that Article 35 is subject to the limitations that apply to measures adopted under Articles 27 and 28.

Seventh, it is also instructive to have regard to Article 29 which plainly does entitle Member States to take general or ‘blanket’ measures. Article 29 deals with public heath matters and “diseases justifying measures restricting freedom of movement” or “expulsion from the territory”. Furthermore, the same procedural safeguards apply to restrictions imposed on the right of entry and right of residence taken on public health grounds. As is clear from the terms of Article 27 and Article 29 of the Directive, and in line with the precautionary principle, such measures can be based on “considerations of general prevention”, for example to prevent the spread of diseases with epidemic potential.

Eighth, nothing by way of guidance in the Commission’s Report of 10^th December 2008 or Communication of 2^nd July 2009 necessarily runs counter to the argument that Article 35 was intended to allow “necessary measures” against individuals and groups. Indeed, the language of paragraph 4.4 of the Commission’s Communication of 2^nd July 2009 is potentially helpful in that it makes clear that the measures may be taken “…. at any point in time….” .

Ninth, there is no reason in principle why Member States should not be able to take prospective, preventive ‘blanket’ measures to combat widespread fraud and abuse of rights if such measures are proportionate, necessary and the most effective way of preventing the abuse in question. The Claimants’ argument that this amounts to ‘suspension’ of an EU right by another name fails to account for the fact that Article 35 is widely drafted to allow a range of “necessary measures” to be taken, some of which may relate to individual instances, some which may fall short of suspension and some which may be broader to take account of system abuse. Systemic abuse of rights and fraud calls for systemic measures.

For these reasons, in my judgment, the Secretary of State’s construction of, and reliance upon, Article 35 is also correct.

Article 35 provides that “necessary measures” taken pursuant to it must be “proportionate”. The Claimants challenge the proportionality of the Secretary of State’s measure in refusing to recognise EU “residence cards” on the grounds of (i) unsuitability for the purpose of achieving the desired objective, (ii) it goes beyond what is “necessary” to guard against abuse of rights and fraud, and (iii) the evidential basis for the measure in Mr Bradley’s and Ms Haddad’s witness statements is ‘inadequate and flawed’. The Claimants submit that a proportionate approach requires measures only where another Member State’s measures are ‘manifestly inadequate’. The Secretary of State contends that her stance is proportionate given her concerns as to risk of widespread abuse and fraud.

The following principles can be derived from the authorities, in particular the Court of Appeal’s judgments in R (Sinclair Collins) v Secretary of State for Health [2012] QB 394.

I have already held that the Secretary of State’s serious concerns, as explained and articulated in the evidence of Mr Bradley and Ms Haddad are reasonable and justified and that EU “residence cards” represent a serious weakness in the system which is ripe for exploitation by criminal immigration gangs and others (see above).

Whilst acknowledging the irritation and inconvenience that some non-EEA family members might feel and experience in having to renew their “family permits” every six months in order to ensure their ability to travel freely to the UK, this does not come close to establishing disproportionality.

Further, the position of the UK Government is not immutable. As Mr Facenna informed the Court, on 5^th November 2012, the Secretary of State decided, in principle, to recognise EU residence cards issued by Germany and Estonia because the UK Government was satisfied that they met appropriate security standards and complied with the formal requirements of the Directive as regards, in particular, bearing the heading “Residence card of a family member of a Union Citizen” as required by Article 10 of the Directive. The change will not be brought in immediately, however, since an amendment to the regulations is needed.

In my judgment, it cannot be said that the Secretary of State’s measure in refusing to recognise EU “residence cards” and requiring non-EEA nationals to produce “family permits” when entering the UK is “manifestly wrong” or “manifestly inappropriate”. As I have said, systemic threats clearly require systemic remedies.

The Secretary of State and the UK Government is pursuing the matter at EU Council level. However, unless and until suitable and efficacious measures are agreed and put in place by all EU Members to ensure the security of EU “residence cards”, it is reasonable, proportionate and necessary for the UK Government to require all non-EEA family members to obtain prior entry clearance (save for those who are in possession of a “residence card” from another Member State which has put in place the necessary security measures).

The Secretary of State’s guidance to carriers in respect of carrier’s liability under section 40 of the Immigration and Asylum Act 1999 simply reflect the position under regulation 11 of the EEA Regulations and do no more than enforce the UK’s implementation of the Directive. If the EEA “family permit” regime is a proportionate and lawful measure in accordance with the Frontiers Protocol and Article 35 of the Directive, the guidance issued in connection with the carriers’ liability regime is also lawful.

In my judgment, the Secretary of State is right to consider and contend that this is the most appropriate, and only truly effective, way of carrying out appropriate checks to ensure that only those third country nationals genuinely entitled to exercise EU free movement rights are admitted to the UK as EEA family members.

The simple test for acte clair has traditionally been whether the Court can determine the issues before it “with complete confidence” and “with no real doubt” (per Bingham MR in R. v International Stock Exchange ex p. Else [1993] QB 534; applied most recently by the Court of Appeal in R (MA, BT, DA) v. SSHD [2011] EWCA Civ 1446).

In R(ZO (Somalia)) v. Home Secretary [2010] 1 WLR 1948 at [51] Lord Kerr of Tonaghmore JSC, delivering the judgment of the Court, articulated what appears to be a somewhat more involved test:

“…[W]hat is required is for the national court to conduct a careful examination of the reasoning underlying any contrary argument ranged against the view that it has formed. If, having done so, the court is of the opinion that such an argument, on any conventional basis of reasoning, could not be accepted, a reference should not be made. Having anxiously assessed the appellant's arguments against this yardstick, I have come firmly to the view … that a reference is not required in this case….”

In my judgment, the Somalia test is not (nor was it intended to be) materially different from the Else test laid down by Bingham MR. On either test, however, I have concluded that a reference to the CJEU is required. Whilst, as I have explained, the Secretary of State has strong grounds under both the Frontiers Protocol and Article 35 of the Directive for saying that her stance on Article 5(2) of the Directive is lawful, it cannot be said that the questions of construction are so pellucid that there can be “no real doubt” or that the Claimant’s arguments could not be accepted “on any conventional basis of reasoning”.

Accordingly, I propose to order that the question of whether the UK’s approach to non-EEA family members holding EU “residence cards” issued by other Member States is lawful, having regard to the matters set out in the Secretary of State’s evidence and the terms of the Frontiers Protocol and Article 35 of the Directive is referred to the CJEU.

In the result, I stay the proceedings and order a reference to the CJEU of the question whether the UK’s approach to non-EEA family members holding EU “residence cards” issued by other Member States is lawful, having regard to the matters set out in the Secretary of State’s evidence and the terms of the Frontiers Protocol and Article 35 of the Directive. I will discuss the precise form of Question and Order with Counsel.

I am grateful to Counsel for their able submissions.