EN & Anor v THE The Entry Clearance Officer, Nairobi

The appellants are citizens of Kenya. They appealed to the Tribunal against the decision of the respondent Entry Clearance Officer refusing to issue them with family permits under Reg 12 of the Immigration (European Economic Area) Regulations 2006 (SI/2006/1003). The Immigration Judge allowed the appellants’ appeals and directed that entry clearance be granted. The respondent sought and obtained an order for reconsideration. Thus the matter comes before us.

The basic facts are not in dispute. The appellants are the sons of a woman who sought asylum in Eire. During the course of seeking asylum in Eire she met and married a man of dual Irish/British nationality. The marriage took place in Eire and following it she moved with him to Northern Ireland: thus they now reside together in the United Kingdom. The man whom she married was a farmer. He is now unable to work and receives Disability Living Allowance. It is not suggested that he will be able to work again.

The appellants’ application was as the family members of the spouse of an EEA national, and thus fell for consideration under reg 12 of the EEA Regulations. The relevant paragraph is para 1, which reads as follows:

“12.

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

(a)

the EEA national —

(i)

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

(ii)

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

(b)

the family member will be accompanying the EEA national to the United Kingdom or joining him there and —

(i)

is lawfully resident in an EEA State; or

(ii)

would meet the requirements in the immigration rules (other than those relating to entry clearance) for leave to enter the United Kingdom as the family member of the EEA national or, in the case of direct descendants or dependent direct relatives in the ascending line of his spouse or his civil partner, as the family member of his spouse or his civil partner, were the EEA national or the spouse or civil partner a person present and settled in the United Kingdom”.

There is no doubt that each of the appellants is “a family member of an EEA national”, because “family member” is defined in reg 7 as including the direct descendents of the person or his spouse who are under 21, and “EEA national” is defined in reg 2 in such a way as to include a person who has nationality of a member State of the European Union, other than the United Kingdom.

In view of what follows, we should point out that there is nothing in the definition of “EEA national” that prevents a person being an EEA national if he has dual nationality, one of the nationalities being nationality of the United Kingdom.

The Immigration Judge considered the evidence before her in order to determine whether the appellants were members of the family of their mother’s husband. Her conclusions have enabled us to set out the facts as we have done. Having reached those conclusions she wrote simply as follows:

“29.

In light of my findings I am satisfied that the Appellants are the direct descendents aged under 21 of the Sponsor who is the spouse of a ‘Qualified person’. I am therefore satisfied that they meet the requirement of Regulation 7 of the 2006 Regulations.

Decision

Even in the absence of a representative of the respondent at the hearing, we find this very surprising. In order to have the relief which they sought, which was not entry clearance but the grant of a family permit under reg 12, the appellants had to do rather more than show that they were family members of an EEA national. Further, however, they did not need to show that the EEA national was a “qualified person”. Some of the EEA Regulations require the EEA national to be a “qualified person”, but reg 12 does not. It has a different requirement, which we shall have to examine in some detail.

The application for reconsideration, even more surprisingly, makes no reference to this error. Instead, it challenges the Immigration Judge’s assumption that the appellants’ mother’s husband was a “qualified person”, pointing out that as his income was derived from Disability Living Allowance he was not a “worker”, the only category within the definition of “Qualified person” in reg 6 which could be applicable to him. In submissions before us Miss O’Hagan attempted to persuade us that because the appellants’ mother’s husband falls within the definition in reg 5 of a “worker or self-employed person who has ceased activity” he is necessarily to be regarded as a “worker” within reg 6. That submission is completely untenable. The purpose of the separate definition in reg 5, with its own sub-interpretation in para 7, applying only to reg 5, is to define the phrase “worker or self-employed person who has ceased activity” where it occurs elsewhere in the Regulations (for example regulation 15(1)(c)). If the word “worker” in reg 6 included such a person, it would be unnecessary to make special provisions for him; it would also be unnecessary to make special privileges for workers who have temporarily ceased activity, as reg 6 does. To that extent we agree with the grounds for reconsideration: the appellants’ mother’s husband was not and is not a “qualified person”. But, as we have said, he does not need to be.

What he needs to be is an EEA national who “is residing in the UK in accordance with these Regulations”. It is on this point, as we indicated at the hearing, by alluding to him as a “qualified person” the Immigration Judge entirely failed to apply the relevant law. There is, however, room for doubt about the meaning of the phrase “in accordance with these Regulations”. Miss O’Hagan submitted that a person who meets the requirements of the Regulations has to be regarded as residing in the United Kingdom in accordance with the Regulations. The appellants’ mother’s husband does meet the requirements of the Regulations in that he is a “worker or self-employed person who has ceased activity”. He must therefore be regarded as residing in the United Kingdom in accordance with the Regulations.

We are unable to accept that submission. The reason needs to be unfolded step by step.

First, reg 12 is not required by European Law as part of the implementation of the Citizens Directive 2004/38/EC. As the Tribunal has pointed out in CO [2007] UKAIT 00070, reg 12 deals solely with a process akin to the grant of entry clearance, rather than any right of entry or residence as such. Secondly, the feature of the present case which raises these issues is that the appellants’ mother’s husband has British nationality as well as nationality of another member State. Thirdly, for many of the purposes of the Regulations, as we have indicated, what is required is that the person on whose rights others’ entry or residence depends be an EEA national as defined, for those purposes including a British citizen who has nationality of another country as well. But the Directive itself does not require as much, because it provides in Article 3(1) that:

“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”(emphasis added).

We do not need to consider precisely the implications of that form of words: suffice it to say again that reg 12 is different. Regulation 12 requires not merely an EEA national, but an EEA national who “is residing in the UK in accordance with these Regulations”.

Fifthly, the Regulations contain provisions relating to the admission and residence of EEA nationals as well as to their removal or expulsion. The Regulations place limits on the length of time an EEA national may be in the United Kingdom and the purposes for which he may be here. They permit the expulsion of the EEA national, but only under certain conditions. They provide for certain documentation to evidence the rights of the EEA national to be in the United Kingdom. Miss O’Hagan’s submission is that a person who has (together with another nationality) British citizenship is to be regarded as residing in the United Kingdom “under these Regulations” by right of his other citizenship. But that involves the argument that his residence is subject to the restrictions in the Regulations: otherwise it would not be residence “under these Regulations”. But a British citizen has no restrictions on the purposes for which he may be in the United Kingdom or the length of time for which he may be here, nor can he be removed. For these reasons we think that a person who is a British citizen, although by virtue of some other citizenship he may be an EEA national residing in the United Kingdom, cannot be properly described as a person residing in the United Kingdom “under these Regulations”.

That conclusion is entirely consistent with the view that reg 12 is a matter of pure United Kingdom law, outside the requirements of European Law, because it has the effect of ensuring, for these purposes akin to entry clearance, that a British citizen resident in the United Kingdom is treated as such rather than as a national merely of a member State.

For the forgoing reasons it appears to us that the appellants cannot succeed in meeting the requirements of para 12(1)(a). Their appeals ought to have been dismissed rather than being allowed.

Even if they could have met the requirements of that paragraph, however, there appears to have been no consideration given to whether they could meet the requirements of reg 12(1)(b). They are not currently in an EEA state, so they need to meet the requirements of the Immigration Rules for leave to enter the United Kingdom as the family members of their mother and her husband. Those rules have provisions as to maintenance and accommodation, and also (because their father is apparently still alive and living in Kenya) they need to show under the requirements of para 297(i)(e) or (f) of the Statement of Changes in Immigration Rules HC395, either that their mother has had sole responsibility for their upbringing or that there are serious and compelling family or other reasons which makes their exclusion undesirable. No attention at all appears to have been given to these issues, presumably because the Entry Clearance Officer making the decision was not satisfied that the appellants were related, as claimed, to their mother. Whatever the reason for the lack of consideration, however, it is very difficult to see why the Immigration Judge regarded herself as entitled to ignore the matter altogether.

As we have said, the grounds for reconsideration raise none of these issues. There are, however, the plainest possible faults in the Immigration Judge’s determination. The only assistance the Immigration Judge had in the absence of a Presenting Officer, was that from Miss O’Hagan who appears before us. Miss O’Hagan has not suggested that we should limit ourselves to the matters mentioned in the grounds for reconsideration: it would in our view be quite improper to do so, given that she did not take the Immigration Judge fully or accurately through the relevant issues at the hearing. For that reason, because the errors are so obvious, and because in any event the Immigration Judge’s direction, being also inaccurate, could have no effect, it seems to us that we should decide this reconsideration in accordance with the law as we have set it out, rather than feeling obliged to confirm the incorrect position made by the Immigration Judge.

For the reasons we have given the Immigration Judge materially erred in law. We substitute a determination dismissing the appellants’ appeals.