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

The Claimant applies for judicial review of the Defendant’s failure to issue him with an EEA residence card, pursuant to the Immigration (European Economic Area) Regulations 2006 (“the EEA Regulations 2006”) and Directive 2004/38/EC (“the Directive”), and the Defendant’s decision to detain him between January and June 2012, with a view to removing him from the United Kingdom (“UK”). He claims damages under both domestic and EU law.

The Claimant, whose date of birth is 28 November 1970, is a national of Brazil. He arrived in the UK on 3 November 2002 with entry clearance as a visitor. He remained in the UK unlawfully after the expiry of his visa.

In November 2008 the Claimant met his future spouse, Claudia Oliveira Batista, who is a Portuguese national. She had been residing and working in the UK since 2007/2008. They began living together in May 2009. They became engaged in November 2009 and married on 30 April 2010, by way of a proxy marriage that took place in Brazil. They celebrated their wedding in the UK. Their relationship broke down in October 2010, and she moved out of their home in November 2010.

On 19 July 2010, the Claimant applied for an EU residence card on the basis of his marriage to an EU citizen. Following the breakdown of his relationship with his wife, there followed a series of communications with the Defendant, in which she indicated that he had submitted insufficient evidence to support his application for a residence card. However, no decision on his residence card application was made, and so a right of appeal to the First-tier Tribunal (FTT) was not triggered.

On 29 January 2012, the Claimant was arrested as an over-stayer and he was detained by the Defendant with a view to his removal from the UK. After his first judicial review claim failed, he filed this application for judicial review on 11 June 2012, in which he challenged the Defendant’s failure to make a decision granting him a residence card since 19 July 2010, and in particular the Defendant’s most recent decision letters of 12 March, 27 April and 10 May 2012. He challenged the lawfulness of his proposed removal and his detention.

By way of interim relief, Burton J. granted a stay on removal on 25 June 2012. On 30 June 2012, the Defendant granted him temporary admission, subject to conditions, and released him from detention.

Pursuant to an order of the court at an oral permission hearing on 18 October 2012, the Claimant made a further application for a residence card on 16 November 2012. The Claimant’s application for a residence card was refused by the Defendant on 11 July 2013, on the ground that the Claimant had not submitted a valid identity card or passport for Ms Batista, and therefore had failed to establish that he was a family member of an EEA national. The Claimant had submitted the photocopy of Ms Batista’s Portuguese identity card which had previously been submitted in July 2010, but which had since expired.

The Claimant appealed to the FTT and his appeal was allowed in a determination promulgated on 12 March 2014. At the hearing, the Home Office Presenting Officer did not seek to defend the decision, nor did he challenge the Claimant’s evidence.

The Claimant was issued with a residence card by the Defendant some two months later, on 21 May 2014.

Pursuant to the order of 18 October 2012, counsel for the Claimant drafted amended grounds for judicial review dated 31 January 2013 (Footnote: ¹) explaining that they were not comprehensive because the Defendant had not yet made disclosure in response to the Claimant’s subject access request and public funding had only just been approved. Those grounds were filed by the Claimant’s solicitor on 21 February 2013, together with an explanation for the delay and an application for a variation of the consent order to extend time for their service. The Court varied the order accordingly on 18 March 2013. The Defendant made disclosure of some documents on 17 June 2013pursuant to the subject access request.

The judicial review claim was stayed by consent, pending the appeal to the FTT, in an order dated 29 August 2013. The Claimant was ordered to file re-amended grounds of claim, if so advised, within 21 days of the final outcome of the appeal. It is apparent from the party and party correspondence that the amended grounds, drafted by counsel on 22 May 2014, were sent to the Defendant, though the Court has no record of the amended grounds being filed. To regularise the position, I will record in the order which I make at the conclusion of the claim that, without prejudice to the Claimant’s contention that the re-amended grounds were filed at Court in 2014, the re-amended grounds were filed at the hearing on 17 February 2016.

On 5 October 2015, the Court made a consent order, in which the Claimant was granted permission to apply for judicial review. Directions were given for the filing of the Defendant’s detailed grounds and evidence within 35 days of the date of the order. The Defendant’s detailed grounds were only filed and served with her skeleton argument on 16 February 2016, the day before the hearing. Pursuant to an order which I made on 17 February, the Defendant filed and served a revised composite skeleton argument and detailed grounds of resistance on 24 February 2016, together with some additional disclosure.

The Claimant submitted that the Defendant acted in breach of the rights granted to him under the Directive and the EEA Regulations 2006 by:

The Claimant further submitted that the Defendant had no lawful authority for his detention and attempted removal in 2012. Any consideration of his removal, and detention pending removal, had to be considered under the Directive and the EEA Regulations 2006, and the relevant policies in force. However, the decision to detain and remove him was made under domestic immigration law without any proper regard to his right of residence as a family member of an EEA national exercising Treaty rights in the UK.

The Defendant had no power to detain the Claimant under regulation 24 of the EEA Regulations 2006 because she had no reasonable grounds for suspecting that he was someone who could be removed under regulation 19(3)(a) on the grounds that he did not have a right to reside in the UK under the EEA Regulations. The Defendant knew at the time of detention that the Claimant had entered into a valid marriage with a Union citizen who was residing and working in the UK, but had separated from her, and documentary evidence of those facts had been provided to her. In these circumstances, the only issue upon which there could conceivably have been any doubt was Ms Batista’s current residence and work status. Under Article 14(2), the Defendant should have taken steps to verify Ms Batista’s status, and given the Claimant an opportunity to provide evidence of Ms Batista’s continued exercise of her Treaty rights, before detaining him.

If the Defendant had complied with the Directive and the EEA Regulations 2006 and granted the Claimant a right of appeal to the FTT against the decision to remove him, and made appealable decisions in response to his applications for a residence card on 12 March and 27 April 2012, whilst he was in detention, the Claimant would have exercised his right of appeal. Such appeals would have been suspensive in operation, and the Defendant concedes that the likelihood is that the Claimant would not have been detained pending appeal.

Additionally, the Defendant failed to apply her own policy on enforcement action against family members of EEA nationals set out in Chapter 55 of the Enforcement and Instructions Guidance and Chapter 8 of the European Casework Instructions, thus rendering the detention unlawful: see R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245.

Moreover, even if the Defendant did lawfully decide to remove the Claimant, under Article 30(3) and regulation 24(6) she was required to give him one month’s grace period to leave the UK voluntarily, which she did not do.

The Claimant claimed damages for false imprisonment for the period of detention from 29 January to 30 June 2012, together with aggravated and exemplary damages.

The Claimant also claimed damages for breach of his EU law rights, in particular, Article 10 (issue of a residence card), Article 30 (notification of decision and rights of appeal) and Article 31 (right of appeal). He had suffered damage as a result of the restrictions on his movement; loss of earnings; detention; destitution and harm to his physical and mental health.

In my view, the effect of the procedural history summarised above is that the Claimant has a pleaded claim in respect of loss suffered up to the date of the re-amended grounds (22 May 2014).

At the hearing, the Claimant abandoned his claims under Articles 5 and 8 of the European Convention on Human Rights on the basis that they were not required and would not result in any additional award of damages.

The right of Union citizens to move and reside within the territory of other Member States is provided for by Article 21 of the Treaty on the Functioning of the European Union (“TFEU”), which provides that every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.

Article 21 TFEU has been amplified by 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 provides in Article 3(1):

“Beneficiaries

1.

This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members….who accompany or join them.”

The scheme established by the Directive, and implemented in the U.K. by the EEA Regulations 2006 (Footnote: ²), is as follows:

Neither the Treaty nor the Directive confer any autonomous rights upon family members who are third country nationals. Their rights are only acquired by reason of their status as members of the Union citizen’s family. Where the Union citizen has an initial, extended or permanent right of residence, the Directive and the EEA Regulations 2006 confer such a right upon family members too. The right of residence includes the right to work.

A person’s spouse is treated as their family member: Article 2(2) of the Directive and regulation 7(1).

By Article 7(2) of the Directive and regulation 14, non-EEA national family members enjoy an extended right of residence, provided that the Union citizen satisfies the conditions in Article 7(1)(a)(b) or (c) or is a qualified person within the meaning of regulation 6.

Regulation 14(2) of the EEA Regulations 2006 provides that:

“A family member of a qualified person residing in the United Kingdom ….is entitled to reside in the United Kingdom for so long as he remains the family member of the qualified person…”

The wording of regulation 14(2) reflects the principle established by the CJEU in Case 267/83 Diatta v Land Berlin [1985] ECR 567 under Regulation 1612/68, in which it was held that the residence rights of family members were not lost by separation and martial breakdown, only by a formal dissolution of the marriage by divorce or annulment. This principle was applied to the Directive and the EEA Regulations 2006 by the Court of Appeal in Amos v Secretary of State for the Home Department [2011] EWCA Civ 552, per Stanley Burnton LJ at [24].

Article 13 of the Directive and regulation 10 provide that, if certain conditions are satisfied, a spouse may retain the right of residence in the event of the dissolution of a marriage. One such condition is where the marriage lasted for at least three years, and one year of married life was spent in the UK.

The purpose of residence documentation is to provide beneficiaries of the Directive with proof of their rights of residence, for immigration and employment purposes.

Article 8 provides for member states to issue Union citizens residing for longer than 3 months with a registration certificate, upon production of a valid identity card or passport and, in the case of those working under Article 7, a confirmation of engagement from the employer or certificate of employment or proof of self-employment.

The Directive makes provision for family members in Articles 9 to 11:

“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.

2.

The deadline for submitting the residence card application may not be less than three months from the date of arrival.

3.

Failure to comply with the requirement to apply for a residence card may make the person concerned liable to proportionate and non-discriminatory sanctions.

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. A certificate of application for the residence card shall be issued immediately.

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.

Article 11

Validity of the residence card

1.

The residence card provided for by Article 10(1) shall be valid for five years from the date of issue or for the envisaged period of residence of the Union citizen, if this period is less than five years.

2.

The validity of the residence card shall not be affected by temporary absences not exceeding six months a year, or by absences of a longer duration for compulsory military service or by one absence of a maximum of twelve consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.”

Article 25 provides that possession of residence documentation “may under no circumstances be made a precondition for the exercise of a right or the completion of an administrative formality, as entitlement to rights may be attested by other means of proof”.

Regulation 16 of the EEA Regulations 2006 implements Article 8 by providing that the Secretary of State must issue a registration certificate to a qualified person immediately upon application and production of a valid identity card or passport, together with proof that he is a qualified person. In the case of a worker, this will be a confirmation of employment.

As regards family members, regulation 17 provides:

“17.

Issue of residence card

17.—(1)The Secretary of State must issue a residence card to a person who is not an EEA national and is the family member of a qualified person or of an EEA national with a permanent right of residence under regulation 15 on application and production of—

(a)

a valid passport; and

(b)

proof that the applicant is such a family member.

(2)

The Secretary of State must issue a residence card to a person who is not an EEA national but who is a family member who has retained the right of residence on application and production of—

(a)

a valid passport; and

(b)

proof that the applicant is a family member who has retained the right of residence.

(3)

On receipt of an application under paragraph (1) or (2) and the documents that are required to accompany the application the Secretary of State shall immediately issue the applicant with a certificate of application for the residence card and the residence card shall be issued no later than six months after the date on which the application and documents are received.

(4)

The Secretary of State may issue a residence card to an extended family member not falling within regulation 7(3) who is not an EEA national on application if—

(a)

the relevant EEA national in relation to the extended family member is a qualified person or an EEA national with a permanent right of residence under regulation 15; and

(b)

in all the circumstances it appears to the Secretary of State appropriate to issue the residence card.

(5)

Where the Secretary of State receives an application under paragraph (4) he shall undertake an extensive examination of the personal circumstances of the applicant and if he refuses the application shall give reasons justifying the refusal unless this is contrary to the interests of national security.

(6)

A residence card issued under this regulation may take the form of a stamp in the applicant’s passport and shall be … be valid for—

(a)

five years from the date of issue; or

(b)

in the case of a residence card issued to the family member or extended family member of a qualified person, the envisaged period of residence in the United Kingdom of the qualified person,

whichever is the shorter.

[(6A) A residence card issued under this regulation shall be entitled ‘Residence card of a family member of an EEA national’ or ‘Residence card of a family member who has retained the right of residence’, as the case may be.]

(7)

…

(8)

But this regulation is subject to regulation 20(1) and (1A)].”

Regulation 18 makes provision for the issue of documents certifying permanent residence to Union citizens and permanent residence cards to family members of Union citizens.

In the Claimant’s appeal against the refusal of a residence card in 2014, the FTT relied upon Barnett & Ors (EEA Regulations: rights and documentation) [2012] UKUT 00142 (IAC) when allowing his appeal. In Barnett, the UTIAC analysed the EEA Regulations 2006 and the Directive and held that the requirement in regulation 17 to produce a “valid passport” referred to the passport of the family member making the application, not the Union citizen. Judge Lane concluded at [29]:

“The general conclusions that emerge may be stated as follows. (1) In applications under the 2006 Regulations, care must be taken to identify both the relevant rights being asserted and the relevant documentary confirmation that is being sought in respect of those rights. (2) The requirement in regulation 17(1)(a) and (2)(a) for the production of a valid passport relates to the passport of the applicant, not the EEA national. (3) The “proof” that the Secretary of State can lawfully require under regulation 17 and 18 in order to entitle a non EEA National to a residence card (regulation 17) or a permanent residence card (regulation 18) may, nevertheless, depending on the circumstances, entail the production of the passport or other identity document of an EEA national; but it is unlawful to refuse applications merely because such documentation is not forthcoming. The Secretary of State needs to show a valid reason why it is required. (4) This is particularly so in the case of regulation 18, given that there is likely to be relevant material relating to such documentation on file from a previous, successful application.”

The Directive makes provision for the following procedural safeguards:

“Article 15

Procedural safeguards

1.

The procedures provided for by Articles 30 and 31 shall apply by analogy to all decisions restricting free movement of Union citizens and their family members on grounds other than public policy, public security or public health.

2.

….

3.

….”

“Article 30

Notification of decisions

1.

The persons concerned shall be notified in writing of any decision taken under Article 27(1), in such a way that they are able to comprehend its content and the implications for them.

2.

The persons concerned shall be informed, precisely and in full, of the public policy, public security or public health grounds on which the decision taken in their case is based, unless this is contrary to the interests of State security.

3.

The notification shall specify the court or administrative authority with which the person concerned may lodge an appeal, the time limit for the appeal and, where applicable, the time allowed for the person to leave the territory of the Member State. Save in duly substantiated cases of urgency, the time allowed to leave the territory shall be not less than one month from the date of notification.”

“Article 31

Procedural safeguards

1.

The persons concerned shall have access to judicial and, where appropriate, administrative redress procedures in the host Member State to appeal against or seek review of any decision taken against them on the grounds of public policy, public security or public health.

2.

Where the application for appeal against or judicial review of the expulsion decision is accompanied by an application for an interim order to suspend enforcement of that decision, actual removal from the territory may not take place until such time as the decision on the interim order has been taken, except:

– where the expulsion decision is based on a previous judicial decision; or

– where the persons concerned have had previous access to judicial review; or

– where the expulsion decision is based on imperative grounds of public security under Article 28(3).

3.

The redress procedures shall allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed measure is based. They shall ensure that the decision is not disproportionate, particularly in view of the requirements laid down in Article 28.

4.

Member States may exclude the individual concerned from their territory pending the redress procedure, but they may not prevent the individual from submitting his/her defence in person, except when his/her appearance may cause serious troubles to public policy or public security or when the appeal or judicial review concerns a denial of entry to the territory.”

Regulation 26 provides for a right of appeal against an EEA decision, which is an in-country right of appeal:

“Appeal rights

26.

(1) Subject to the following paragraphs of this regulation, a person may appeal under these Regulations against an EEA decision.

(2)

If a person claims to be an EEA national, he may not appeal under these Regulations unless he produces a valid national identity card or passport issued by an EEA State.

(3)

If a person claims to be the family member or relative of an EEA national he may not appeal under these Regulations unless he produces—

(a)

an EEA family permit; or

(b)

other proof that he is related as claimed to an EEA national.

(4)

A person may not bring an appeal under these Regulations on a ground certified under paragraph (5) or rely on such a ground in an appeal brought under these Regulations.

(5)

The Secretary of State or an immigration officer may certify a ground for the purposes of paragraph (4) if it has been considered in a previous appeal brought under these Regulations or under section 82(1) of the 2002 Act.

(6)

Except where an appeal lies to the Commission, an appeal under these Regulations lies to the First-tier Tribunal.

(7)

The provisions of or made under the 2002 Act referred to in Schedule 1 shall have effect for the purposes of an appeal under these Regulations to the First-tier Tribunal in accordance with that Schedule.”

An “EEA decision” is defined in regulation 2(1) as:

“… a decision under the Regulations that concerns a person’s:

(a)

entitlement to be admitted to the United Kingdom;

(b)

entitlement to be issued with or have renewed, or not to have revoked, a registration certificate, residence card…

(c)

removal from the United Kingdom.”

The same definition of an “EEA decision” is applied in the Immigration (Notices) Regulations 2003 which provide for the manner and form of the refusal of an application for a residence card.

At the relevant time, regulation 4(1) provided:

“Subject to paragraph 6, the decision-maker must give written notice to a person of any immigration decision or EEA decision taken in respect of him which is appealable.”

Regulation 5 provided that the notice of decision must include the reasons for the decision, and information as to the right of appeal.

Article 14 provides for the retention of the right of residence for Union citizens and their family members and protection from expulsion:

“Article 14

Retention of the right of residence

1.

Union citizens and their family members shall have the right of residence provided for in Article 6, as long as they do not become an unreasonable burden on the social assistance system of the host Member State.

2.

Union citizens and their family members shall have the right of residence provided for in Articles 7, 12 and 13 as long as they meet the conditions set out therein.

In specific cases where there is a reasonable doubt as to whether a Union citizen or his/her family members satisfies the conditions set out in Articles 7, 12 and 13, Member States may verify if these conditions are fulfilled. This verification shall not be carried out systematically.

3.

An expulsion measure shall not be the automatic consequence of a Union citizen's or his or her family member's recourse to the social assistance system of the host Member State.

4.

By way of derogation from paragraphs 1 and 2 and without prejudice to the provisions of Chapter VI, an expulsion measure may in no case be adopted against Union citizens or their family members if:

(a)

the Union citizens are workers or self-employed persons, or

(b)

the Union citizens entered the territory of the host Member State in order to seek employment.

In this case, the Union citizens and their family members may not be expelled for as long as the Union citizens can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged.”

Article 15(2) provides:

“2.

Expiry of the identity card or passport on the basis of which the person concerned entered the host Member State and was issued with a registration certificate or residence card shall not constitute a ground for expulsion from the host Member State.”

Articles 27 to 29 grant power to member states to restrict the freedom of movement and residence of Union citizens and family members on grounds of public policy, public security or public health. These provisions have no application to this case.

Regulation 19(3) provides:

“…..an EEA national who has entered the United Kingdom or the family member of such a national who has entered the United Kingdom may be removed if:

(a)

he does not have or ceases to have a right to reside under these Regulations; or

(b)

the Secretary of State has decided that the person’s removal is justified on grounds of public policy, public security or public health in accordance with regulation 21.”

Regulation 23 provides:

“23(1) This regulation applies to a person who is in the United Kingdom and has been refused admission to the United Kingdom –

(a)

because he does not meet the requirement of regulation 11 ….. ; or

(b)

in accordance with regulation 19(1), (1A) or (2).

(2)

A person to whom this regulation applies is to be treated as if he were a person refused leave to enter under the 1971 Act for the purpose of paragraphs 8, 10, 10A, 11, 16 to 19 and 21 to 24 of Schedule 2 to the 1971 Act….”

Regulation 24 provides, so far as is material:

“24(1) If there are reasonable grounds for suspecting that a person is someone who may be removed from the United Kingdom under regulation 19(3), that person may be detained under the authority of an immigration officer pending a decision whether or not to remove the person under that regulation, and paragraphs 17 and 18 of Schedule 2 to the 1971 Act shall apply in relation to the detention of such a person as those paragraphs apply in relation to a person who may be detained under paragraph 16 of that Schedule.”

“(2)

Where a decision is taken to remove a person under regulation 19(3)(a), the person is to be treated as if he were a person to whom section 10(1)(a) of the 1999 Act applied, and section 10 of that Act (removal of certain persons unlawfully in the United Kingdom) is to apply accordingly.”

“(6)

A person to whom this regulation applies shall be allowed one month to leave the United Kingdom, beginning with the date upon which he is notified of the decision to remove him, before being removed pursuant to that decision except [….. ]”

At the FTT hearing on 27 February 2013, the Claimant submitted a witness statement setting out the history of his relationship with Ms Batista and his dealings with the Defendant, with supporting documentary evidence, and he also gave oral evidence. His evidence was not challenged in cross-examination by the Home Office Presenting Officer. The FTT Judge stated at paragraph 13 of the determination that he accepted the Claimant’s account of events as being truthful. Although the residence card had been refused on the ground of failure to submit a valid identity card for Ms Batista, both Mr Malik and Mr Jafferji agreed that, since the issue for the FTT, under section 86(3)(a) Nationality Immigration and Asylum Act 2002, was whether the decision was “in accordance with the law”, the FTT would only have allowed his appeal if it was satisfied that he met all the relevant requirements of the EEA Regulations 2006; it was an established principle that the FTT’s consideration was not limited to the issue raised in the refusal letter (see RM (Kwok On Tong: HC 395 para 320 India) [2006] UKAIT 00039, at [9] – [11]).

Although I have not heard any oral evidence, I have seen much of the same documentary evidence as was before the FTT, and its veracity has not been challenged in these proceedings either. In particular, it has never been suggested that the documents presented by the Claimant were not genuine, or that that the marriage was a sham. I am satisfied, therefore, that the Claimant’s account is true, and that from the date of his marriage at all material times he was the spouse of a Union citizen who was exercising Treaty rights, residing and working in the UK. In those circumstances, he was the beneficiary of a right of residence pursuant to the Directive and the EEA Regulations 2006, as a family member of Ms Batista, with effect from their marriage on 30 April 2010. The rights conferred by the Directive and the EEA Regulations do not depend upon the issue of residence documentation. The documentation is merely declaratory of existing rights: see McCarthy v Secretary of State for the Home Department (C-202/13) [2015] 1 QB 651, at [62].

On 19 July 2010 the Claimant applied for an EU residence card as confirmation of his right of residence in the UK, as a family member of a Union citizen, Ms Batista. At the same time, Ms Batista made a separate application for a registration certificate, confirming her right of residence as an EEA national exercising Treaty rights in the UK, and naming the Claimant as her spouse. The Claimant stated, and I accept, that both applications were sent to the Defendant in the same envelope by the same consultants (Fast Track Consultancy Ltd) who were acting for both of them.

The Claimant’s application form included the following information:

The following documents accompanied the application:

On 11 August 2010, the Defendant sent a certificate of application to Fast Track Consultancy Ltd in the following terms:

“Case ID 013313215

Re: Mr Gilberto Silva Santos. Brazil. 28 November 1970

Certificate of application

(for family members of EEA nationals who are not themselves EEA nationals)

Thank you for your client’s application of 19 July 2010 for a Residence Card or Permanent Residence Card. Until such time as your client’s application has been decided by the UK Border Agency, your client will be treated for immigration purposes as a family member of a legally resident EEA national and, as such, your client are free to live and work in the United Kingdom.

We advise you not to make any non-urgent travel plans until we have decided your application and returned your passport(s) or travel document(s).

…….

..... applications for a Residence Card ….should be resolved within six months from the date of application.”

It is evident from subsequent correspondence from the Defendant that, if the requisite supporting documents did not accompany the application, it was the usual practice of the Defendant, at that time, to “return” the application and any documents submitted; identify the additional evidence required; explain that the application had not been formally determined and would not be considered further; and invite a further application with the required documents.

In the light of this evidence as to the Defendant’s practice, and having heard submissions on this from both counsel, I consider that the issue of a formal Certificate of Application to the Claimant on 11 August 2010, permitting him to reside and work in the UK, meant that the Defendant was at that date satisfied that the Claimant’s application was complete and he had submitted the supporting evidence which was required, comprising originals, not copy documents. If that had not been the case, the application would have been returned to him, explaining what further evidence was required. Of course, this was just the preliminary stage and the Defendant had yet to decide whether or not the application should be granted.

The relationship between the Claimant and Ms Batista broke down in October 2010 and she moved out of their home in November 2010.

In his skeleton argument, Mr Malik stated:

The FTT Judge said at paragraph 9 “It is also apparent that she withdrew her application for a Registration Certificate. The Respondent treated such withdrawal as also a withdrawal of the Appellant’s application for a residence card”. Mr Malik did not accept that this was what had occurred, though as the Defendant did not file a witness statement and had no documentary record of events beyond what had been produced by the Claimant, I was not convinced that he had any reliable means of knowing what was in the mind of the Defendant’s officials dealing with this case in 2010. In my view, there was evidence to support the FTT Judge’s finding, which I refer to below. In so far as the Defendant did treat Ms Batista’s withdrawal as having the effect of withdrawing the Claimant’s application, this was a serious error. Mr Malik confirmed that the Defendant accepted that the Claimant’s application for a residence card was a separate application to the application for a certificate made by Ms Batista, and ought not to have been treated as automatically withdrawn when she withdrew her application. It is apparent from the application form submitted by the Claimant – described as “EEA2 Residence Card” - that it is an application by a family member for a residence card only. It is significant that the Defendant’s Certificate of Application was an individualised response to the Claimant’s application, with a designated Case ID number. It was not a joint response to the Claimant and to Ms Batista.

Following the breakdown of the marriage, the Claimant instructed a different legal consultant, called Eurozone. He had only used Fast Track Consultancy Limited because Ms Batista had a connection with them. On 10 November 2010, Eurozone wrote to the Defendant stating that the Claimant and his wife had separated, and asked that the circumstances of the relationship and its breakdown be taken into account when deciding the Claimant’s application. The letter stated that the Claimant had been informed that his wife had written to the Defendant to withdraw his application for a residence card. However, the letter asked the Defendant to continue to consider his application. Photocopies of the documents which had previously been submitted were enclosed, together with a new letter dated 10 November 2010 from the Claimant’s employer, confirming that he and Ms Batista were married and living together in the Claimant’s flat (which was provided by his employer) until their recent separation.

On 24 November 2010, the Defendant wrote to Eurozone stating:

“I am writing to you with regard to your client’s recent request for a Residence Card …... The submitted documents are insufficient to establish that your client has a right of residence under the 2006 Regulations. I am therefore returning them to you with this letter. Please note that this is not a formal determination of your client’s status under the Regulations. Our purpose in returning the documents is to enable your client to assemble a complete dossier of supporting evidence and to submit this with a fresh application when they are in a position to do so. In the meanwhile we will not be giving any further consideration to your client’s case.

To establish a right of residence, and therefore eligibility for a Residence Card, the following additional evidence will be needed:-

Photographs (A)

Two recent colour passport-sized photographs for all applicants…

Evidence of identity (B)

A valid passport or national identity card for your client.

A valid passport or national identity card for the EEA national sponsor.

Evidence of relationship (C)

You have stated that your client is separated. A Non-EEA national who is the spouse of an EEA national does not cease to be a family member in the event of marital breakdown/separation as long as the EEA national continues to exercise Treaty rights in the United Kingdom. Therefore the application requires an EEA sponsor and your client is required to submit the requisite evidence.

Evidence of Exercising Treaty Rights in the UK (D)

If your client’s EEA sponsor is employed: An original, recent signed and dated employer’s letter plus a supporting pay slip dated within six weeks submission of application.

Once your client is in a position to supply all the evidence required to support the application, please re-submit the form and up to date evidence to the address detailed above. Please ensure that original documents are provided as copy documents will not be accepted.

Failure to submit original documents and up to date evidence may result in the application being returned again.

…..”

In my judgment, this letter discloses several errors on the part of the Defendant. First, the letter overlooked or ignored the fact that the Claimant had already made an application for a residence card on 19 July 2010 which the Defendant had not yet determined. Indeed, the six month period for determination of that application had not yet expired. The Defendant’s error was inexplicable since the earlier application was referred to in the letter sent by Eurozone, and the Defendant had already sent the Claimant a Certificate of Application. The Defendant correctly observed in the letter that the Claimant continued to be a family member under the EEA Regulations regardless of the separation from his wife, so the separation cannot have been the reason for the error.

I cannot accept Mr Malik’s submission that the Defendant could reasonably have interpreted Eurozone’s letter as a fresh application, in view of its contents, and since no new application form had been completed. But even if the Defendant did reasonably consider that this was a new application for a residence card, then the proper course would have been to refuse it, on the grounds that the Claimant had provided insufficient evidence of his entitlement to a residence card. This would have enabled the Claimant to appeal to the FTT. In my view, this was the second error disclosed by this letter. Mr Malik explained in the composite Defence/Skeleton Argument that “[t]his was in accordance with the Secretary of State’s practice at the time, namely, not to refuse applications and confer rights of appeal, but instead to invite applications to resubmit with the requisite documents”. In this case, the Secretary of State’s practice had the unfortunate consequence of deferring any independent scrutiny of the mishandling of the Claimant’s application.

The third error in the Defendant’s letter was that all the documents which the UKBA requested had already been supplied, as originals, with the application on 19 July 2010, and a Certificate of Application issued, without any request for further documents to be supplied, indicating that the required documents had been provided. The documents which Eurozone sent were merely copies of those previously sent. Eurozone reminded the Defendant that it was still holding the Claimant’s original passport, which should have prompted the Defendant to investigate which documents had been submitted on the earlier occasion.

There followed an unexplained delay on all sides. The Defendant did not notify the Claimant of its decision on the 19 July 2010 application, although the six month period expired on 19 January 2011. The Claimant and Eurozone did not follow up the application, or the mistaken letter of 24 November 2010.

On 17 June 2011 Eurozone wrote to the Defendant, enclosing copies of the documentary evidence requested in the Defendant’s letter of 24 November 2010. The letter explained that the Claimant could only provide copies of his wife’s identity card and the marriage certificate as the originals had been sent to the Defendant when the application for a residence card was made jointly with his wife. The Defendant had sent back the original marriage certificate to Ms Batista’s representative (Fast Track Consultancy Limited), and the Claimant no longer had access to them because of the breakdown in his relationship with his wife. Eurozone placed reliance on regulation 10(5) of the 2006 Regulations (retained right of residence in the event of divorce) which was clearly mistaken, since they were not divorced. In my view, the Claimant ought not to be blamed for the failings of Eurozone. Mr Malik and Mr Jafferji agreed that it was reasonable for him to instruct them, and rely upon their advice, since Eurozone was registered and regulated by the Office of the Immigration Services Commissioner (“OISC”), which is an executive non-departmental public body sponsored by the Home Office.

On 28 June 2011, the Defendant wrote returning the Claimant’s documents, using the same pro forma template as the letter of 24 November 2010. The letter stated that the documents submitted were “insufficient to establish that your client has a right of residence under the 2006 Regulations” and so they were being returned with the letter, without any “formal determination” having been made. The Claimant was invited to re-apply with the additional documents needed. On this occasion, the Defendant stated “to establish a right of residence … the following evidence will be needed ….evidence of an original divorce decree absolute”. By this stage, Defendant was no longer requesting evidence of identity of the Claimant or Ms Batista, nor evidence of Ms Batista’s employment.

In my judgment, this letter discloses many of the same errors as the Defendant’s letter of 24 November 2010. The application made on 19 July 2010, which had been accompanied by the original documents required to demonstrate the Claimant’s right of residence, was again overlooked or ignored. It was now long overdue for determination. The issue of the Certificate of Application was also overlooked or ignored. In my view, it was clear from the terms of Eurozone’s letter and the absence of any fresh application form, that the Claimant was still pursuing his original application, albeit in the altered circumstances of his separation from his wife. Even if the Defendant believed this was a fresh application, the failure to make any determination upon it deprived the Claimant of the opportunity of an appeal to the FTT which could have investigated what had occurred. I also find it surprising that the Defendant did not explain to Eurozone, as it had done in its previous letter, that a non-EEA national who is the spouse of an EEA national does not cease to be a family member in the event of marital breakdown/separation, and so the Claimant could be eligible for a residence card, whether or not he was divorced.

In late 2011, the Claimant, who was then employed as a sous chef, was offered a better job as a head chef by a previous employer, Convivial Pubs London, and so he gave notice to terminate his employment. However, the Defendant informed Convivial that the Claimant was not entitled to work in the UK, and so they could not employ him. The Claimant experienced the same problem with other prospective employers. He adduced in evidence a letter from the Defendant dated 20 December 2011 to Chiswick Staff Limited which stated:

“I have checked our records and I can confirm, based on the evidence we currently have, that this individual is not currently entitled to work in the United Kingdom on the basis of an outstanding application for a residence card as the family member of a European national.”

The Certificate of Application issued to the Claimant on 11 August 2010 (which ought to have been on the Claimant’s UKBA file) stated that until his application for a residence card had been decided he would be treated for immigration purposes as a family member of a legally resident EEA national and, as such, would be “free to live and work in the United Kingdom”. Although the letter envisaged that a residence card would be issued within six months of application, the Defendant had failed to do so, and so it was unfair to deprive the Claimant of the benefit of a certificate.

Even on the Defendant’s case that a fresh application for a residence card had been made, superseding the July 2010 application, the Defendant’s actions in returning the Claimant’s applications on 24 November 2010 and 28 June 2011, instead of determining them, left him in a legal limbo where he had no means of challenging the Defendant’s actions by way of an appeal to the FTT and yet he was being prevented from working, in breach of his rights as the family member of an EEA national exercising Treaty rights.

On 29 January 2012, the Claimant was arrested, detained and served with a notice of liability to removal from the UK. In form IS151A, the immigration officer stated he was satisfied that the Claimant was a person in respect of whom removal directions might be given, in accordance with section 10 Immigration and Asylum Act 1999 (“IAA 1999”) as “a person who has failed to observe a condition of leave to enter or remain, or remains beyond the time limited by the leave”. The specific reason given was “overstayed their period of granted leave”.

Form IS151A informed the Claimant that he was liable to be detained under paragraph 16(2) of Schedule 2 to the Immigration Act 1971 (“IA 1971”). which provides:

“16

Detention of persons liable to examination or removal

…..

(2)

If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any of paragraphs 8 to 10A or 12 to 14, that person may be detained under the authority of an immigration officer pending –

(a)

a decision whether or not to give such directions;

(b)

his removal pursuant to such directions.”

In the “Reasons for detention” notice, also dated 29 January 2012, the immigration officer stated that he was ordering the Claimant’s detention under the powers contained in the IA 1971 and Nationality, Immigration and Asylum Act 2002 (“NIAA 2002”). The relevant provision in the NIAA 2002 was section 62. The reasons given for his detention were as follows: (1) his removal from the UK was imminent; (2) he had not produced satisfactory evidence of his identity, nationality or lawful basis to be in the UK; (3) he had previously failed or refused to leave the UK when required to do so.

On 30 January 2012, Eurozone sent a fax to the Defendant explaining that he was married to an EEA national, awaiting a divorce, and enclosing copies of the documents submitted in July 2010 including the Claimant’s passport, his marriage certificate, Ms Batista’s identity card, the documentation proving that she was working in the UK and residing with the Claimant. The Defendant had previously been sent originals of all these documents and had returned them to the Claimant and Ms Batista.

Upon his arrest, the Claimant was interviewed under caution by an immigration officer. It is clear from the notes of interview that the immigration officer was aware of the following facts:

It is upon the basis of these facts that the FTT has since held that the Claimant is entitled to a residence card, and the Defendant has duly issued him with a residence card. As stated above, I am satisfied that the Claimant has been exercising Treaty rights as a family member since the date of his marriage in April 2010. It follows that he was entitled to reside in the UK when he was detained in January 2012.

In terms of considering the lawfulness of the decision to detain with a view to removal in January 2012, it is significant that these facts have never been challenged by the Defendant. For example, it has never been alleged that the Claimant entered into a sham marriage, or that Ms Batista was not genuinely exercising Treaty rights. Importantly, at that stage, there had never been any formal determination of his application for a residence card – it had never been refused, merely returned.

The immigration officers had access to the UKBA files and the Claimant confirmed his status to them. On 30 January 2012 they received the fax from Eurozone with copies of the evidence previously submitted, which would have enabled them to check and confirm what the Claimant had told them.

The UKBA’s contemporaneous GCID record sheet, which contain the case notes and file minute notes, suggest to me that the immigration officer mistakenly believed that the Claimant’s application for a residence card had been withdrawn when his wife withdrew her application for a certificate. The relevant passages state:

“-19/07/2010 submitted application for EEA residence card on the basis of having a EEA wife.

-24/11/10 the above application was withdrawn by the subjects wife Claudia De Oliveria Batista. NAT: PRT [nationality Portuguese]

……

He has been waiting for the Home Office to give him his papers on the basis of him being married to his wife who is from Portugal (however this application has been withdrawn by his wife).” (emphasis added)

I do not believe that the passages underlined were based upon information given by the Claimant. The date (24/11/10) on which the UKBA recorded the withdrawal of her application must have come from UKBA files. I also note that the passages which I have underlined were redacted by the Defendant in the version initially disclosed, along with names of individuals involved, which also suggests to me that it was information from the UKBA not from the Claimant.

In my view, on the available evidence which I have summarised above, an immigration officer applying regulation 24 of the EEA Regulations 2006, could not have had “reasonable grounds for suspecting” that the Claimant was “someone who may be removed from the United Kingdom under regulation 19(3)” which provides that a family member may be removed if “he does not have or ceases to have a right to reside” in the UK.

Equally, on the basis of this evidence, I do not consider that an immigration officer could reasonably have believed that there were grounds for removal and detention under section 10 IAA 1999, paragraph 16(2) of Schedule 2 to the IA 1971 and section 62 NIAA 2002, which in any event were not the statutory powers to be applied in this case.

The documents disclosed by the Defendant indicate that she made the decisions to detain and remove applying domestic immigration law applicable to a foreign national over-stayer without any EEA rights, when his case ought to have been considered within the framework of the EEA Regulations 2006. The Defendant had sufficient information before her to know that this was contrary to law and her own policy, because when he applied for a residence card in July 2010 he had submitted sufficient evidence to establish that he was the spouse of an EEA national residing and working in the UK. Even if the Defendant considered that his right might have lapsed, for example, if Ms Batista had left the UK, the Claimant’s position still fell to be considered under the more favourable provisions in the EEA Regulations 2006.

Regulation 24(6) provides that a person in the circumstances of the Claimant should be allowed one month to leave the UK beginning on the date on which he is notified of the decision to remove him. The Claimant’s detention was wrongly authorised on the basis that his removal was imminent, when in fact his removal could not be effected for at least one month after he was first detained.

The Claimant was entitled to a right of appeal against any decision to remove him (Articles 15 & 31 of the Directive and regulation 26) which had to be formally notified to him (Articles 15 & 30 of the Directive and the Immigration (Notices) Regulations 2003). The Defendant has a pro forma decision notice for use in EEA cases which set out the rights of appeal (IS 151A EEA) which ought to have been used in the Claimant’s case, instead of the standard IS 151A.

If the Defendant had considered the Claimant’s case under the EEA Regulations 2006, it is most unlikely that he would have been detained, or remained detained for 5 months, because of the Defendant’s policy not to detain EEA nationals and their family members pending determination of their entitlement to remain.

At the relevant time, the Defendant’s “European Casework Instructions” (“ECI”) Chapter 8, “Enforcement Action taken against EEA nationals and family members” advised, in paragraph 6, that where a person is liable to removal under regulation 19(3)(a) of the EEA Regulations, as a person who does not have a right to reside in the UK, he should be served with form IS151A (EEA), and he will then normally be granted temporary admission, subject to conditions. A decision to remove must be notified on form IS151B, which gives him notice of his in-country right to appeal, under regulation 26. He cannot be removed while an appeal is pending. Once a decision to remove has been made, in accordance with regulation 24(6), a person liable to removal should be granted a period of 1 month to leave the country voluntarily.

Paragraph 3.2 provided:

“3.2

Release from detention/altering reporting instructions

Where an EEA national is exercising Treaty rights in the United Kingdom his family members (who may not themselves be EEA nationals) are afforded the same rights to free movement and residence. Accordingly that family member should not normally be detained or placed on reporting restrictions.

If a person who has been arrested and detained on suspicion of being an immigration offender subsequently claims to be the family member of an EEA national it will normally be appropriate to release the person from detention if we have seen:

Evidence of EEA sponsor’s nationality (e.g. a valid ID card or passport)

Evidence of the relationship (e.g. marriage… certificate)

Evidence that the EEA sponsor is exercising a Treaty right.

If the case is not straightforward it may be necessary to contact European Casework for further advice.”

Paragraph 6.2 only envisaged removal of third country nationals claiming to be family members under section 10(1)(a) IAA 1999, instead of under the EEA Regulations 2006, where an application for a residence card has been refused, which did not apply in this case.

In my judgment, the Defendant failed to follow and apply the policy set out in the European Casework Instructions, by not granting the Claimant a right of appeal and not detaining him pending a final decision.

In Chapter 55 of the “Enforcement Instructions and Guidance” (“EIG”), in force at the relevant time, paragraph 55.9.2 provided:

“Spouses of British citizens or EEA nationals – non-CCD cases

…..

If an [immigration offender] is married to an EEA national, detention should not be considered unless there is strong evidence available (emphasis added) that the EEA national spouse is no longer exercising treaty rights in the UK, or if it can be proved that the marriage was one of convenience and the parties had no intention of living together as man and wife from the outset of the marriage.”

It is apparent that the UKBA did not have any evidence, let alone “strong evidence”, that Ms Batista was no longer exercising treaty rights in the UK or that the marriage was not genuine.

Mr Jafferji submitted that, since the Claimant had already provided sufficient information to establish a right of residence in 2010, Article 14(2) of the Directive applied and if the Defendant had any reasonable doubt as to whether the right of residence still existed, it was for the Defendant to “verify” whether the conditions were still fulfilled. It would have been relatively straightforward for the Defendant to check whether Ms Batista was still working in the UK on the basis of the information already provided to the Defendant.

Mr Malik referred to Amos v Secretary of State for the Home Department [2011] EWCA Civ 552 in which the Court of Appeal held that, where a marriage had broken down, there was no duty on the Defendant to assist a family member by providing information from tax or national insurance records to demonstrate that the EEA national spouse was still working in the UK. However, as Mr Malik fairly pointed out, this case was distinguishable from Amos in that the information regarding Ms Batista’s residence and employment in the UK had already been provided to the Defendant.

On 31 January 2012 the Claimant, acting in person, made an application for judicial review challenging the decision to remove him, referring to his marriage to an EEA national exercising Treaty rights in the UK. Based upon erroneous advice from Eurozone, he relied upon the fact that he was awaiting his divorce decree absolute. In response to the application, the Defendant cancelled the removal directions set for 4 February 2012. The Defendant then offered to consider an application for a residence card if the Claimant withdrew his judicial review.

On 21 February 2012 Eurozone wrote to the Defendant seeking a residence card, but neither party could provide a copy of that letter. On 12 March 2012, the Defendant wrote to Eurozone, referring to the Claimant’s “recent request for a residence card” and returning the documents which had been submitted by Eurozone, stating that they were insufficient to establish a right of residence. The Defendant advised:

“As stated in your letter, your client is still married to an EEA national, Mrs Claudia Batista. Until divorce decree absolute is obtained, your client remains the family member of an EEA national, although separated. A non-EEA national who is the spouse of an EEA national does not cease to be a family member in the event of marital breakdown/separation as long as the EEA national continues to exercise Treaty rights in the United Kingdom. Therefore if you client wishes to apply for a residence card on the basis of his marriage to an EEA national, then the application requires a EEA sponsor and your client is required to submit the additional requisite evidence:

Evidence of Identity: A valid passport or national identity card for the EEA national sponsor.

Evidence of relationship. Your client’s original marriage certificate…. Plus original certified translation … Please do not send photocopies.

Evidence of exercising Treaty rights in the UK

If your client’s sponsor is employed: an original, recent, signed and dated employer’s letter plus a supporting pay slip within six weeks of the submission date.

……..

If you client does not wish to be in consideration for the above but instead under the European Regulations 10(5) – retention of rights …. The application will require the following evidence:

Evidence of relationship

Evidence of an original decree nisi

Evidence of Exercising Treaty Rights in the UK

Evidence that your client as the non-EEA member is pursuing activity which would make him a worker or self-employed person as if he was an EEA national.”

On this occasion, the Defendant correctly advised that the Claimant’s rights as a family member continued to exist, despite the separation from his wife, indicating that she was not misled by the mistaken belief on the part of Eurozone that the Claimant had to obtain a divorce in order to retain his right of residence. However, the Defendant again wrongly ignored the fact that all the documents now requested had been submitted and considered by her in 2010, despite being informed of this fact on many occasions, and having the Certificate of Application on file. Once again, the Defendant failed to make a formal determination of his application. As there was no formal decision, the Claimant was unable to benefit from his right of appeal to the FTT. These repeated errors had more serious consequences than previously because by now the Claimant’s liberty was at stake.

On 20 April 2012, Eurozone wrote again to the Defendant seeking a residence card, but neither party could provide a copy of that letter. On 27 April 2012 the Defendant sent a letter in similar terms to the letter of 12 March 2012, returning his application on the grounds that the documentation was insufficient, and failing to make a formal determination of his claim that would have resulted in a right of appeal to the FTT. The copy letter is incomplete.

The Claimant’s application for permission to apply for judicial review was considered and refused on the papers without a hearing by a Deputy High Court Judge on 16 April 2012. HH Judge Stephen Stewart QC’s reasons for refusing permission on the EEA aspect of the claim were as follows:

“As to the residence card/discretionary leave to remain, the Defendant’s letter of 28th June 2011 and 12th March 2012 provide full and valid reasons why the claimant has failed to provide sufficient evidence in support of his claims.”

The Judge considered the claim to be “totally without merit”.

The Defendant understandably relied upon this decision as support for her submission that she was acting lawfully in removing and detaining the Claimant. However, as I have been able to conduct a much fuller investigation than HH Judge Stewart, I have concluded that the Judge made his decision upon an incorrect basis as he was not aware that the Claimant had been exercising Treaty rights in the UK since his marriage in April 2010, and he and his wife had already submitted all the documents required by the Defendant for the issue of a residence card, including originals, in July 2010. I consider that the primary reason the Judge did not appreciate these facts was that, faced with inadequate grounds from a litigant in person, he relied upon the Defendant’s account in its Summary Grounds of Defence which unfortunately did not provide him with full and accurate information.

The Defence (which was not drafted by counsel) focussed mainly on the Article 8 claim. In respect of the Claimant’s EEA rights it stated:

“7.

…. the decision of 28 June 2011 and 12 March 2012 demonstrate that proper consideration has been given to the Claimant’s claims and demonstrate that the Claimant has not provided sufficient evidence either as a spouse or former spouse of an EEA national.”

“15.

….Furthermore, as can be seen from the Claimant’s immigration history at paragraph 3 above, the Claimant has made two applications for EEA residence. His first application for an EEA Residence Card on the basis of his marriage to Claudia De Oliveira, an EEA national, was withdrawn by her on 24 November 2010 on the basis of the breakdown of the relationship. His subsequent application failed because he has failed to provide sufficient evidence of an EEA sponsor, his original marriage certificate or that his EEA sponsor or wife is exercising treaty rights in the UK.”

“16.

In this regard, it is noted that the Claimant when interviewed under caution by Immigration Officers on 29 January 2012 admitted that his marriage to the said Claudia De Oliveira was no longer subsisting and that he had no knowledge of her whereabouts (see also the Claimant’s solicitors letter of 10^th November 2010)…”

“21.

The SSHD has had regard to all the information put forward by the Claimant in respect of his failed applications for a residence card as the alleged spouse of an EEA national. It was therefore considered that on the limited evidence provided by the Claimant his rights under Article 8 are not sufficient engaged to result in a breach upon his removal.”

In my view, the Defence was inaccurate and misleading in the following ways:

The Claimant applied for bail, but the Defendant opposed it, and it was refused on 15 and 23 February 2012. The decisions of the Immigration Judges were not provided to me. Only the Defendant’s bail summary for the first application was provided to me. On that occasion, the Defendant informed the Immigration Judge that:

In my judgment, the Defendant’s submission to the Immigration Judge was inaccurate and misleading.

Removal directions were set for 28 April 2012, but were cancelled because of representations made under Article 8 ECHR which were later rejected. Removal directions were re-set for 11 May 2012, and then due to strike action, changed to 12 May 2012.

On 9 May 2012 the Claimant completed a form addressed to the Defendant entitled “Request for information from the Immigration Officer at Dover Immigration Removal Centre”. In this form the Claimant stated that he was entitled to reside in the UK as the spouse of a Union citizen pursuant to Regulation 7 of the 2006 Regulations and the judgment of CJEU in Diatta, Case 267/83.

On 10 May 2012, the Claimant’s new solicitors, Burton & Burton, wrote to the Defendant stating that the Claimant’s initial application of 19 July 2010 was still outstanding, and that it could not be withdrawn by his wife. Despite the fact that the couple were no longer living together, the Claimant was entitled to reside in the UK as the family member of an EEA national, and he was entitled to a determination of his application for a residence card, carrying an in-country right of appeal.

The Defendant responded on 11 May 2012 stating:

“The contents of your letter have been duly considered. However I fail to see on what basis your client’s application for a residence card on 19th July 2010 should be reconsidered considering that he subsequently submitted two further applications dated 21 February 2012 and 20 April 2012 which were rejected due to his inability to provide sufficient evidence that he meets the criteria for leave to remain in the UK as an EEA family member. Your client’s case has been substantively considered on multiple occasions by the UK Border Agency and rejected. He admitted under caution that his relationship with his EEA partner broke down in 2010 and he has not been in contact with her since. As stated in our letter of 12 April 2012, your client did not submit sufficient documents to establish that he has a right of residence under the 2006 Regulations, and therefore a formal determination of his claim could not be made. In light of this, there are no barriers to your client’s removal from the UK which will proceed as scheduled.”

In my judgment, this letter repeated a number of errors. It stated that the Claimant’s case had been “substantively considered on multiple occasions by the [UKBA] and rejected”. The Defendant had never substantively considered his application for a residence card – his first application on 19 July 2010 was never determined and subsequent applications were “returned”, expressly on the basis that no formal determination had been made. They were returned on the grounds that the Defendant required the submission of further original documents, but all of the documents required had already been submitted on 19 July 2010. The sentence “[h]e admitted under caution that his relationship with his EEA partner broke down in 2010 and he had not been in contact with her since” ignores the evidence of his marriage and suggested that the author erroneously believed that the breakdown of the relationship meant that the Claimant had lost his right of residence in the UK. Finally the letter ignored the Claimant’s right of appeal to the FTT against a refusal of a residence card and his right of appeal against removal. As these were in-country rights of appeal, which were suspensive, the Claimant could not lawfully be removed whilst the appeals were pending. I found this letter particularly disappointing since the letter sent by Burton & Burton was cogent and accurate.

On 11 May 2012 the Claimant wrote to the Defendant enclosing evidence that his wife continued to work in the UK, namely, a letter from her employer, Brinkley’s Restaurants, dated 11 May 2012 which stated:

“To whom it may concern

This is to confirm that Claudia Batista is employed full time as chef at Brinkley’s Kitchen Restaurant, 35 Bellevue Road, SW17 7EF…

She is employed on a permanent basis and has been with the company since February 2009.

Please contact me if you require any further information.

Kind regards,

Iwona Gielo

Payroll Manager”

The letter was sent to the Defendant by fax, with the original letter and original evidence being sent by post. In the accompanying letter the Claimant made the following points:

Despite the letters and the up-to-date evidence of Ms Batista’s residence and work in the UK, which demonstrated that the Claimant was a family member of a EEA national exercising Treaty rights, the Defendant continued to seek to remove the Claimant, in breach of the Directive, the EEA Regulations 2006 and her own policies.

The removal booked for 12 May 2012 was only cancelled because the airline manager did not want to carry the Claimant on a busy scheduled flight in handcuffs and with escorts. These security measures were considered necessary because the Claimant stated he was not willing to go to Brazil; there was no evidence of any disruptive behaviour by the Claimant. Subsequent removals were planned but were ineffective.

The Claimant’s solicitors served a draft copy of an application for judicial review on 11 May 2012, but the Treasury Solicitor continued to authorise removal. The Claimant’s solicitors filed the current judicial review application on 11 June 2012 and applied for a stay on removal by an application filed on 22 June 2012.

On 25 June 2012, Burton J. made an order restraining the Defendant from removing the Claimant from the jurisdiction until after the determination of the Claimant’s application for permission to apply for judicial review.

It was only as a result of Burton J.’s order that, on 30 June 2012, the Defendant granted the Claimant temporary admission and released him from detention. He had been unlawfully held in detention for 154 days.

The Claimant was only released upon stringent conditions which unlawfully restricted his right to work and reside in the UK. He was barred from working and from accessing any public funds or other assistance that would be available to him as a person lawfully resident in the UK. He was required to report to the authorities regularly and effectively prevented from travelling.

Following protracted negotiations, on 18 October 2012, at an oral permission hearing, the Defendant offered to consider a fresh application from the Claimant for a residence card, provided that the documents listed in the schedule attached to the order were attached. The Defendant agreed to make a decision within 3 months and to grant an in-country right of appeal against any refusal of the application. The Claimant agreed to make a fresh application, though he did not agree to submit the documents listed in the schedule, since it was not possible for him to do so. However, the court made the order in the form proposed by the Defendant. The claim was adjourned until 31 January 2013. By that date, the Claimant was to file and serve amended grounds as to any claim for unlawful detention, in breach of Articles 5 and 8 or EU law. If no amended grounds were received, the claim was to stand dismissed.

Pursuant to the order, the Claimant made a further application for a residence card on 16 November 2012. However the documents in the schedule to the order of 18 October 2012 were not all attached.In particular, his wife’s current identity card/passport was not provided, only a copy of her identity card submitted with the application in 2010, which had since expired.

Between February and July 2013, the parties corresponded about the missing documents. The Defendant’s position was that the original documents had to be provided. The Claimant’s position was that he could not provide an up-to- date identity document for his wife because she would not assist him, but the Defendant had seen her original identity card in 2010 and in any event it was not required by law. Eventually, the Defendant proceeded to make her decision without the documents.

The Claimant’s application for a residence card was refused by the Defendant on 11 July 2013, on the ground that the Claimant had not submitted a valid identity card or passport for Ms Batista, and therefore had failed to establish that he was a family member of an EEA national.

The Claimant appealed to the First-tier Tribunal and his appeal was allowed in a determination promulgated on 12 March 2014. The FTT heard oral evidence from the Claimant, and considered the documentary evidence submitted in support of his claim that he was the family member of an EEA national exercising Treaty rights. The FTT set out the Claimant’s factual account at paragraphs 7 to 10. The Claimant provided further up-to-date evidence of Ms Batista’s employment as a head chef in a restaurant in Putney.

Paragraph 11 of the determination recorded the Claimant’s case that the Defendant was “fully aware that his estranged spouse was in fact an EEA national because all material documents were submitted to the Secretary of State in support of her application for a Registration Certificate and his previous application for a Residence Card. In the circumstances that he currently finds himself in, his wife has refused to assist him with the provision of any documentation to establish her identity and EEA status.”.

The FTT’s findings and conclusions were as follows:

“12.

The Appellant’s case is fully detailed in his Grounds of Appeal and Skeleton Argument as supported by his oral and documents submitted. In essence the Appellant understandably relies on the judgment in Barnett and others (EEA Regulations: Rights and Documentation) [2012] UKUT 00142 (IAC) in which the Upper Tribunal held:

(1)

In applications under the Immigration (EEA) Regulations 2006, care must be taken to identify both the relevant rights being asserted and the relevant documentary confirmation that is being sought in respect of those rights.

(2)

The requirement in Regulation 17(1)(a) and (2)(a) for the production of a valid passport relates to the passport of the applicant, not the EEA National.

(3)

The “proof” that the Secretary of State can lawfully require under Regulation 17 and 18 in order to entitle a Non EEA National to a Residence Card (Regulation 17) or a Permanent Residence Card (Regulation 18) may, nevertheless, depending on the circumstances, entail the production of the passport or other identity of an EEA National; but it is unlawful to refuse application merely because such documentation is not forthcoming. The Secretary of State needs to show a valid reason why it is required.

(4)

This is particularly so in the case of Regulation 18, given that there is likely to be relevant material relating to such documentation on file from a previous, successful application.”

13.

During this appeal the Home Office Presenting Officer Mr. Singh was given an opportunity to address issues raised in the aforesaid judgment and in particular the reasons, if any, that this Appellant was being required to produce identity documents relating to his estranged spouse, given that she herself had previously made an application for a Registration Certificate, would have submitted her identity documents in support of such application and there being no evidence to suggest that her identity/status was in dispute. Mr. Singh did not seek to provide any explanation/reasons why the Appellant’s estranged spouse’s identity documents were required on this occasion. In addition Mr. Singh conceded and accepted that Regulation 17(1) requires the production by the applicant of his valid passport and not that of the spouse.

14.

Accordingly, on the evidence before me, as set out in the Appellant’s witness statement (which I accept to be a truthful account of events, there being no challenge raised in relation to any of the particulars narrated therein), and the aforesaid legal provisions, I am satisfied that the Appellant has addressed the single issue raised by the Reasons for Refusal Letter. Therefore the Appellant is entitled to succeed in this appeal.”

Thus the Defendant did not resist the Claimant’s appeal, though it was not formally conceded and the Claimant had to prove his case. The Defendant did not appeal against the determination.

The Claimant was issued with a residence card by the Defendant some two months later, on 21 May 2014.

In the light of the FTT decision, and my finding that, from 30 April 2010, the Claimant was the beneficiary of a right of residence in the UK pursuant to the Directive and the EEA Regulations 2006, it follows that:

The Defendant issued the Claimant with a Certificate of Application on 22 November 2012, but it stated “we are unable to confirm your … right to work in the United Kingdom”. As a result the Claimant was unable to obtain employment and support himself. Further, the Claimant was required to continue reporting to the Defendant in accordance with the conditions of his temporary release.

In summary, my conclusions are that the Defendant acted unlawfully, in breach of the Directive and the EEA Regulations 2006, in her treatment of the Claimant by:

The FTT allowed the Claimant’s appeal against the refusal of his application for a residence card on 12 March 2014, and the Defendant subsequently issued his residence card on 21 May 2014, recognising his right to reside in the UK as a family member of an EU national.

The Claimant claimed damages for false imprisonment and for breach of EU law. He submitted that the Defendant’s unlawful treatment of him resulting in loss of liberty, financial loss, personal injury, pain and suffering, humiliation and distress.

During 2011, the Claimant had been employed as a sous chef, earning an average of £372.25 gross and £299 net per week. The Claimant’s financial losses began on or about 1 October 2011 when, having left his employment as a sous chef to take up a new job as head chef, UKBA informed his prospective employer that he was not entitled to work in the UK and the job fell through. He met with the same difficulty everywhere else he applied for work. He had no means of support and had to move to Reading to stay with a friend who was able to offer him free accommodation and food. He planned to set up a car wash business and took out a £10,000 loan to set it up. His business plans were interrupted by his arrest and detention, meaning that the loan was wasted, and he was then pursued by debt collection agencies for not making the required re-payments on his loan. His credit rating was severely affected. As a result he has since been refused any form of credit, including a mobile phone contract.

During his arrest and interview under caution, the Claimant tried his utmost to explain his status to the officers, but he was repeatedly ignored, and told that as he was an immigration offender because he was not in a subsisting relationship, and he was an over-stayer.

The Claimant was unlawfully detained for 154 days. The Claimant was shocked and frightened when he was detained in January 2012. His description of his time in detention was as follows:

“12.

I have never felt such helplessness in my whole life, before this traumatic event. The dehumanising nature of the treatment I endured, the diminishing effect on my self-esteem, the feeling that I had committed a crime, the uncertainty of when it will come to an end and the adverse effect on my health, cannot be conveyed into words. It is the kind of experience that cannot be explained or understood by anyone, except you have experienced it.

13.

My experience was further compounded by the fact that I was a law enforcement officer in Brazil, and never thought I will be on the receiving end of such treatment in the later part of my life.

14.

As a result of my detention, I severed contact with my 13 years old son, as I could not bring myself to explaining my predicament to him. Furthermore I could not provide the monthly remittance support I did before detention, and I assumed he would not have understood any explanation I provide to him. Furthermore I felt ashamed to tell him about it, and did not want him to think that being imprisoned is a normal occurrence, or something that can be casually broadcasted.

15.

Following the discontinuance of support, the people caring for my son could no longer afford to take care of him, he ceased his education, and embarked on the path of self-destruction through substance abuse.

16.

My relationship with my friends was severely strained. I refused to accept visits, as I could not endure the humiliation of having to wear an orange apron during visit…..

17.

In detention my physical, mental and emotional health took a downward spiral. I started experiencing severe back pains and skin condition, which was never treated adequately. The medication I was put on caused me increased heart rate, and palpitation. My request for an orthopaedic bed went on deaf ears. I was always up in the night crying, as sleeping on the bed caused me more pain than staying up….

18.

I made several request for referral to a specialist outside the detention, or to get one to examine from within the centre, but these requests were ignored, and in some cases were not recorded on my medical record.

19.

To this day, I have never recovered from those excruciating pains, which was exacerbated by the conditions of my detention.

…

26.

One of the other problems I encountered was the constant removal directions I was served with. In some instances I was served with 2 per week.

27.

I found the distress associated with these removal directions, hard to comprehend.

28.

The second to last effort at removing me, went down as one of my darkest days in detention.

29.

I was taken from Dover by 2 escort teams to Heathrow Airport. When I went to the airport, I insisted that my removal was unlawful, and my case has been treated in an inappropriate manner. Even the pilot found my case quite troubling, and refused to accept me on his flight.

30.

I was transferred to Colnbrook, where the treatment I received was worst than any I previously experienced…. I was locked up for 23 hours a day, refused any association, and the ability to get towel and shower.

31.

It was following a threat of reporting the matter to the IMB (Independent Monitoring Board), that I was allowed to get a shower.

32.

I was kept at Colnbrook for 2 days before being transferred to Dover again.

33.

No human being, however horrendous their immigration history, deserve to be subjected to the conditions I was subjected to at Colnbrook.”

After his release, the Claimant was prohibited from working or claiming any form of public assistance or services. He had no means of financial support, and was entirely reliant upon handouts from friends and charities.

He was emotionally withdrawn and depressed. He sought treatment for his back pain which had arisen whilst in detention (a medical report from the Messina Clinic, London, EC4 was adduced in evidence). He could not pay for the treatment, as he was prohibited from working, and although his friend. Luciano, contributed to the cost initially, he could not afford to continue. The local health centre refused to allow him to register because he could not prove his right of residence. In 2013, his friend Luciano had to return to Brazil and the Claimant was destitute and homeless. A local church had to provide for him.

Even after he was granted a residence card, on 21 May 2014, he found it difficult to obtain work because he had been out of the workplace for some time, lacked recent work experience, and experienced a loss of self-confidence. His career as a chef had been brought to a halt by the actions of the Defendant. He spent time doing voluntary work at his local church, seeking to repay them for the support the church gave him when he was destitute.

I accepted the Claimant’s evidence as truthful and convincing.

Under UK domestic law, the Claimant can only claim damages for acts found to be unlawful in public law if they also give rise to a cause of action in private law. Maladministration is not a tort.

Unlawful immigration detention constitutes the tort of false imprisonment, for which an award of damages may be made. The tort of false imprisonment is committed when a claimant is directly and intentionally imprisoned by a defendant, without lawful justification.

The burden of showing that there is lawful justification for the detention lies on the Defendant: see R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, [2012] 1 AC 245per Lord Dyson at [65]. The tort is actionable per se regardless of whether the claimant suffers any harm.

In Lumba, the Supreme Court held, by a majority, that breach of a public law duty on the part of a person authorising detention is capable of rendering that detention unlawful and the fact that the detainee would have been detained lawfully in any event did not affect the Secretary of State’s liability for false imprisonment. The fact that the detainee would have been lawfully detained was relevant to damages rather than liability.

Lord Dyson, in considering the power to detain under Schedule 3 to the Immigration Act 1971, identified the basis upon which a detention decision could be held to be unlawful, and the consequences of such a finding, at [66]:

“A purported authority to detain may be impugned either because the defendant acted in excess of jurisdiction (in the narrow sense of jurisdiction) or because such jurisdiction was wrongly exercised. Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 established that both species of error render an executive act ultra vires, unlawful and a nullity. In the present context, there is in principle no difference between (i) a detention which is unlawful because there was no statutory power to detain and (ii) a detention which is unlawful because the decision to detain, although authorised by statute, was made in breach of a rule of public law. For example, if the decision to detain is unreasonable in the Wednesbury sense, it is unlawful and a nullity. The importance of Anisminic is that it established that there was a single category of errors of law, all of which rendered a decision ultra vires: see Boddington v British Transport Police [1999] 2 AC 143, 158D-E.”

For the reasons I have given above, I am satisfied that the Claimant was falsely imprisoned because there was not, at any stage, any lawful authority for his detention and his detention was in breach of the Defendant’s policies. This is not a case in which he could otherwise have been lawfully detained. Therefore he is entitled to compensatory damages, not merely nominal damages.

General damages are intended to compensate for the loss of liberty; the shock, humiliation and loss of reputation; and for any psychiatric or physical injury caused by the detention. I have had regard to the guidance in Thompson v Commissioner of Police for the Metropolis [1998] QB 498; MK (Algeria) v Secretary of State for the Home Department [2010] EWCA Civ 980 and the helpful quantum case summaries in Detention under the Immigration Acts Law and Practice by Denholm and Dunlop (1^st ed. 2015). I take into account the matters set out in the Claimant’s witness statement, at paragraph 138 above. Under this head, I award £40,000 in damages.

Special damages are awarded for financial loss flowing from the tort. The Claimant was unable to work during his detention. He had previously been earning an average of £299 net per week. There were plenty of employment opportunities for him as a chef in London. I am satisfied that, if he had not been detained, and the UKBA had not refused to allow him to work, he would have been able to earn at least £299 net per week. I award him 22 weeks at £299 which totals £6,578.

Aggravated damages are awarded to compensate for additional humiliation and injury to dignity suffered which mean that a basic award is not sufficient compensation (per Lord Woolf MR in Thompson at 516B).

In my judgment, the treatment of the Claimant by the Defendant does merit an award of aggravated damages in the sum of £10,000. I consider that the way in which the officers disregarded his repeated attempts to explain his legitimate status in the UK under EEA law, dismissing him as an immigration offender, was offensive and intensely humiliating (paragraph 137 above). I also consider that his treatment at Colnbrook (paragraphs 30 – 33 of his witness statement at paragraph 138 above) was so degrading that it offended his personal dignity.

Exemplary damages are recoverable where there has been oppressive, arbitrary or unconstitutional conduct by government servants. In Muuse v Secretary of State for the Home Department [2010] EWCA Civ 453, the Court of Appeal reviewed the authorities of Rookes v Barnard [1964] 1 AC 1129, Kuddus v Chief Constable of Leicestershire [2002] 2 AC 122 and Holden v Chief Constable of Lancashire [1987] QB 380. In Muuse, the Court concluded:

“72.

There are a number of factors that show that the unlawful imprisonment of Mr Muuse in this case was not merely unconstitutional but an arbitrary exercise of executive power which was outrageous. It called for the award of exemplary damages by way of punishment, to deter and to vindicate the strength of the law.”

In my judgment, the Defendant’s servants or agents did treat the Claimant in an outrageously oppressive and unconstitutional way by repeatedly disregarding his EEA rights, and depriving him of his right to appeal against the decision to remove, which was the reason he was being detained. By failing to make decisions on the applications for residence cards, on 12 March and 27 April 2012, the Defendant prevented the Claimant from appealing to an independent tribunal to establish his legal right to reside in the UK. The Defendant conceded at the hearing before me that it was unlikely he would have been detained while an appeal was pending, as the delay in removal would make the deportation unreasonable (applying Hardial Singh principles). In my view, failing to give full and accurate information to the court in the first judicial review claim and on the bail applications was also conduct which merits an award of exemplary damages.

In my view, the appropriate award of exemplary damages is £20,000.

In the landmark case of Francovich v Italian Republic [1991] ECR I-5357, the CJEU held that, as a matter of principle, it was inherent in the system of EU law that a Member State be held liable for loss caused to individuals as a result of a breach of EU law for which it could be held responsible. The principle is not limited to situations where a Member State has failed to implement a directive. A Member State may also be liable in damages where it adopts legislation or takes decisions or fails to act in a manner which violates a person’s directly effective right under EU law.

It has been established in a series of cases, including Brasserie du Pecheur S v Federal Republic of Germany C-46/93 & C-48/93 and R v Secretary of State for Transport ex parte Factortame Ltd [1996] ECR I-1029, that three conditions must be satisfied before liability in damages may arise. First, the rule of law which has been infringed must have been intended to confer rights on individuals. Second, the breach must be sufficiently serious. Third, there must be a direct causal link between the breach and the damage suffered. Although the Member State has a discretion in determining the type of damages awarded, the rules must not be less favourable than for equivalent domestic claims and must not make it excessively difficult to obtain compensation, loss of profit cannot be excluded as a head of damage. I have considered the helpful account of the law in Lewis: Judicial Remedies in Public Law (5^th ed.), Chapter 17.

In my judgment the three conditions for liability are met in this case. The right to free movement and to issue of a residence card, and the procedural safeguards which ensure that those rights are effective in Member States, are clearly rules of law intended to confer rights on individuals. Breaches of those rules are sufficiently serious to warrant state liability. In reaching this conclusion, I have been assisted by recent cases in Ireland and Scotland in which courts have awarded damages for breach of Directive 2004/38/EC: Ogieriakhi v Minister for Justice, Ireland [2014] IEHC 582; Raducan v Minister for Justice, Ireland [2011] IEHC 224; In the Petition of Adebayo Aina [2015] CSOH 158 (Scotland).

The Claimant has suffered damage and loss as a direct result of the Defendant’s breach of the Directive. Of course, the award of damages under this head must not duplicate the award I have already made in respect of the unlawful detention of the Claimant between January and June 2012.

Exemplary damages are, in principle, available for a breach of EU law and in my judgment, this is a case in which the Defendant has behaved in an outrageous, oppressive and unconstitutional manner. Although there may have been an initial misunderstanding or mistake on her part about the status of the Claimant’s 2010 application once his wife withdrew her application, any such error could have been easily remedied by the end of 2010. Instead, there was a sustained and deliberate refusal to give effect to the Claimant’s EU rights, over several years, during which time the Defendant displayed a blatant disregard for the law. Even after Burton J. granted a stay on removal in June 2012, and the Defendant released him, she deprived him of the right to work and the benefits of lawful residence, for nearly two years, and when called to account by the FTT, she was unable to put forward any justification for her refusal of a residence card. I award £25,000 by way of exemplary damages in respect of the breaches prior to and after his detention.

I am satisfied that the Claimant was employed as a chef earning an average of £299 net per week in 2011, and that he would have continued to earn at least that amount, if the Defendant had not prevented him from working. Employment as a chef would have been readily available in London. The period of loss (excluding the period of detention) was 1 October 2011 to 29 January 2012 and then from 1 July 2012 to 21 May 2014. This amounts to 115 weeks and 2 days, totalling £34,470. I have awarded the amount claimed in full. This claim is not excessive - no claim has been made for interest or an inflation uplift, nor for the period after 21 May 2014 when the Claimant struggled to find employment.

I do not consider it appropriate to award aggravated damages in this case, as the factors relied upon by the Claimant in support an award of aggravated damages have already been taken into account in the award of exemplary damages and for loss of earnings.

The total award of damages is £136,048 which comprises £76,578 for false imprisonment and £59,470 for breach of EU law.