KA v The Entry Clearance Officer, Khartoum

The appellant is a national of Sudan. On 3 August 2006 she married a national of Sweden who has been in the United Kingdom since 2005 working as a self-employed painter-decorator. She applied from Sudan for admission to the United Kingdom as the family member of an EEA national exercising rights of free movement under the Treaty of Rome. On 30 January 2007 the respondent issued her with a refusal of an EEA Family Permit. It was stated that he was not satisfied that her husband would be able to maintain and accommodate her adequately without recourse to public funds. She appealed under reg 26 of the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”).

In a determination notified on 4 September 2007 Immigration Judge G Jamieson dismissed her appeal. He considered that by virtue of reg 12(1)(b) of the 2006 Regulations the appellant was not lawfully resident in an EEA State and had thus to show that she met the requirements in the immigration rules (other than those relating to entry clearance) for leave to enter the United Kingdom as a family member of an EEA national. The relevant immigration rule in this case was para 281.

Reg 2(1) of the 2006 Regulations defines “EEA State” to mean “(a) a member State, other than the United Kingdom;…”. It is not in dispute that the appellant has never been lawfully resident in an EEA State. Nor is it in dispute that if the appellant was subject to the requirements of the immigration rules as set out in para 281, then she could not meet its maintenance requirement.

The grounds were put entirely on the footing that the immigration judge was wrong to consider that the appellant was subject to reg 12 and its interlinked requirement that she be able to meet the requirements of the relevant immigration rules. He should have recognised, it was said, that the appellant derived a right of entry/residence directly from the Citizens Directive (Directive 2004/38/EC). The latter, the grounds said, contains no requirement that an applicant has to be lawfully resident in an EEA State in order to make a successful application to join his or her spouse exercising Treaty rights. Such an approach was said to be supported, or not contradicted, by case law, in particular the ECJ cases of Jia v Migrationsverket (Case C-1/105) and MRAX (Case C-459/99 MRAX v Belgium State [2002] ECR 1-6591), the Court of Appeal case of KG (Sri Lanka)[2008] EWCA Civ 13 and the Tribunal case of GC (Citizens Directive: UK national’s spouse) China [2007] UKAIT 00056

Considering first the 2006 Regulations, regulation 12, so far as relevant, provides 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.

…

(5)

But an EEA family permit shall not be issued under this regulation if the applicant or the EEA national concerned falls to be excluded from the United Kingdom on grounds of public policy, public security or public health in accordance with regulation 21.”

Regulation 11 is also pertinent. Its relevant parts provide as follows:

“11.

- …

(2)

A person who is not an EEA national must be admitted to the United Kingdom if he is a family member of an EEA national … and produces on arrival –

(a)

a valid passport; and

(b)

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

Paragraph 5 of regulation 11 makes that regulation subject to regulation 19(1) and (2), which are as follows:

“19.

– (1) A person is not entitled to be admitted to the United Kingdom by virtue of regulation 11 if his exclusion is justified on ground of public policy, public security or public health in accordance with regulation 21.

(2)

A person is not entitled to be admitted to the United Kingdom as the family member of an EEA national under regulation 11(2) unless, at the time of his arrival -

(a)

he is accompanying the EEA national or joining him in the United Kingdom; and

(b)

the EEA national has a right to reside in the United Kingdom under these regulations.”

Article 1 of the Citizens Directive states that the Directive lays down (a) The conditions governing the exercise of the right of free movement and residence within the territory of the Member States by Union citizens and their family members;…”. Article 3, which sets out its personal scope, states at paragraph (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 as defined in point 2 of Article 2 who accompany or join them.”

The definition of “family member” for these purposes includes the spouse, the civil partner in Member States where civil partnerships are recognised, the direct descendants under the age of 21 of the principal, the spouse or the civil partner, and the direct descendents and ascendants of the principal, the spouse or the civil partner who are dependants.

Articles 4, 5 and 6 deal with rights of exit, entry and residence respectively. The parts of Article 5 relevant here state:

“1.

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

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

2.

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

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

3.

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

4.

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

…”

Complementing Article 5, recital 8 states:

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

Article 10 sets out the duty on Member States to issue residence cards to family members of a Union citizen.

From the above it is clear that whereas no entry visa or equivalent formality may be imposed on Union citizens, that is something required of their family members - albeit Member States must grant such persons “every facility to obtain the necessary visas…on the basis of an accelerated procedure”. From Article 5(4) it is also clear that where a family member arrives at the border of a host Member State to seek admission, he or she must not be turned back without being given every reasonable opportunity to obtain the necessary documents showing they are covered by the right of free movement and residence.

Mr Sowerby accepts that the appellant cannot meet the requirements of the 2006 Regulations, regulation 12 in particular. He submits, however, that the immigration judge failed to give any reasons as to why the Directive had no bearing on the appellant’s case and that on a proper reading the appellant was entitled to succeed on the basis of the Directive itself.

So far as the former submission is concerned, it is plainly incorrect. At para 15 the immigration judge made reference to the provisions of Article 5(2) of the Directive, as well as to the reference therein to Article 10. The immigration judge correctly considered that these provisions meant that the Directive required family members to have an entry visa in accordance with Regulation (EC) No 539/2001, or, where appropriate, with national law.

So far as the submission that the immigration judge should have allowed the appeal on the basis of the Directive itself, there is no difficulty in accepting that provisions of a Directive can have direct effect (in certain circumstances), but it is not entirely clear from Mr Sowerby’s submission what the right is which this Directive is said to confer.

If Mr Sowerby means the immigration judge should have allowed the appeal on the basis that the appellant had an unqualified right conferred by the Directive to a pre-entry EEA family permit, treating that as the United Kingdom equivalent of an “entry visa”, that notion clearly founders on the fact that Article 5, supported by recital 8, states that such a regime can be imposed in accordance with national law requirements. It does not require Member States to ensure that such a regime confers on an applicant an unqualified right to be granted such a visa/permit irrespective of the requirements of national law. At most, via recital 6, it requires that Member States ensure the regime is consistent with the principles of Community law and, in particular the principle of non-discrimination; it must also be on the basis of an accelerated procedure.

If Mr Sowerby means to invoke a Directive-conferred right of entry, then (as the immigration judge noted), it is also clear from Article 5 that in the case of family members such a right is one which can be made subject to an entry visa or equivalent formality. The Directive does not stipulate that Member States must impose an entry visa regime to such persons, but it leaves them free to do so if they wish. Plainly the United Kingdom through its implementing legislation (as under previous Regulations implementing Community law) has chosen to impose such a regime. As noted by the Tribunal in CO at para 10:

“Although Article 5 of the Directive contains restrictions on the need for visas in the case of persons to whom the Directive applies, nothing in the Directive requires Member States to use an entry clearance process by which a person’s eligibility to be admitted can be determined other than at the border of the state in question. The possibility of obtaining an EEA family permit from a UK Entry Clearance Officer abroad is a procedure not governed by the Directive at all. A person who is able and wishes to take advantage of it is at liberty to do so…Regulation 12 contains provisions purely of UK law: it has nothing to do with admission under EU law”.

If Mr Sowerby means that the immigration judge should have allowed the appeal on the basis that the appellant had a Directive-conferred right to a residence card, then it can be seen from the Directive, Articles 5 and 10 in particular) that there is no provision for such a card to be issued to family members who have yet to arrive at the border of a Member State. Of course, a family member who has been in a host Member State already and who has acquired whilst there a residence card, is in a different position. If such a person (after having left) seeks to come back, there is no visa requirement: Article 5(2) stipulates that possession of a valid residence card exempts such a family member from the visa requirement; and as recital 8 puts it, “those who have already obtained a residence card should be exempted from the requirement to obtain an entry visa within the meaning of Council Regulation (EC) No 539/2001…”. But Article 5 affords no right to a residence card to a family member seeking entry from abroad and, if the family member already has a valid residence card, he does not require a family permit.

If Mr Sowerby means to submit (as his reference in the grounds to “residence” suggests) that the immigration judge should have recognised there was a directly effective right of residence pursuant to the Directive, that submission overlooks that the Directive makes no provision for a grant of a right of residence in advance of a family member seeking to accompany or join a Union citizen.

Mr Sowerby also submits that the appellant was entitled to have her right of entry as an EEA national recognised by virtue of Community law in the form of leading judgments of the European Court of Justice. However, none of the cases he cites relate to the situation of a person who is abroad and is seeking to obtain an entry visa or equivalent formality in order to travel to a host Member State. Further, so far as Jia is concerned, that case does not establish that it is unlawful for a Member State to make the grant of a residence permit to nationals of a non-Member State subject to the condition that those family members have previously been residing lawfully in another Member State; it only establishes that it is not unlawful if no such condition is imposed: see KH (Sri Lanka) paras 53,63. As regards MRAX, it was concerned with the different issue of whether a Member State could send back at the border a third country national who is married to a national of a Member State and attempts to enter its territory without being in possession of a valid identity card or passport or, if necessary, a visa. The principle laid down in MRAX would only have application to this appellant (if at all) if she attempted to present herself at the United Kingdom border.

To the extent that Mr Sowerby also sought to rely on the Tribunal case of GC, that was concerned with an entirely different situation of a person who had entered the United already (illegally).

Although the appellant was not entitled to succeed under regulation 12, it is important to bear in mind that it does not follow that she might not be in a position to benefit from regulation 11, were she to arrive at the United Kingdom border and seek admission as a family member of an EEA national exercising Treaty rights.As noted by the Tribunal in CO (EEA Regulations: family permit) Nigeria [2007] UKAIT 00070 at para 6:

“Regulation 12 sets out the circumstances under which a person applying from abroad (as is implied by the reference to an Entry Clearance Officer) is entitled to an EEA family permit. Sub-paragraph (1)(a) sets out the conditions applying to the EEA national and sub-paragraph (1)(b) sets out the conditions applicable to the family member. As is pointed out in the grounds for reconsideration in the present case, if the family member is not presently lawfully resident in an EEA state, he must meet the requirements of the Immigration Rules in order to be entitled to an EEA family permit. (In the present case the relevant rules would be those in paragraph 297 of the Statement of Changes in Immigration Rules, HC 395. As the appellant’s mother is alive he would need to establish that his father has had sole responsibility for his upbringing or that there are serious and compelling family or other reasons making his exclusion undesirable. There is no suggestion that he can meet the requirements of paragraph 297.)”

“Other things being equal, therefore, a holder of an EEA family permit is entitled to admission to the United Kingdom to accompany or join the EEA national whose family member he is. What the regulations do not say, however, is that a person who does not have a family permit is not to be admitted. It would be surprising if there were such a provision in the regulations because of the right of admission apparently given by the Directive. As we have seen, certain family members (that is to say those who are not already lawfully resident in an EEA state) can have a family permit only if they meet the requirements of UK immigration law. No such restriction on the admission of family members of Union citizens is recognised in the Directive.

It is clear from the immigration judge’s determination that he was satisfied that the sponsor was in the United Kingdom exercising Treaty rights at the date of decision and that the couple were married. The respondent made no mention of any reason for refusing the appellant’s application other than that he did not consider that the sponsor could show adequate support and accommodation would be available for the couple. His only reason for dismissing the appeal concerned the inability of the couple to show, given the sponsor’s low income from his business, adequate maintenance and accommodation without recourse to public funds. That being the case, it would seem that the appellant has established that she is the family member of the person she claims he is, namely her husband.

In CO, where likewise it was found that the appellant could not meet the requirements of the immigration rules (as required in his case by regulation 12(1)(b)(ii)), it was said that he nevertheless did appear to qualify for a right of admission under regulation 11, at least insofar as he would be able to establish that he was a family member of an EEA national exercising Treaty rights. In the light of that fact the Tribunal in CO went on to state:

“It follows that she is entitled to the admission to the United Kingdom within the provisions of regulation 11(4). The administrative arrangements (if any) needed to enable him to exercise that right are not a matter for us”.

It might be suggested that the Tribunal intended here to declare the appellant’s right of admission under regulation 11, which in turn implements the right of entry under Article 5. (As pointed out in NB and JN (Right of permanent residence) [2007] UKAIT 00039, the Tribunal is obliged by s.84(1)(d) of the 2002 Nationality, Immigration and Asylum Act to consider whether the decision appealed against breaches an appellant’s rights under the Community Treaties in respect of entry to or residence in the United Kingdom and in such circumstances a declaration can form part of a determination of the matter under s.86(2) of the same Act. But if CO was read as making such a declaration, it would entail accepting that a person who is not eligible for an EEA family permit (because he cannot meet the requisite requirements of regulation 12) is nevertheless entitled to a de facto equivalent, namely a declaration that he has a right of admission subject only to administrative arrangements. If that were the case, it would create legal uncertainty because the effect would be that an applicant would be able to obtain the equivalent of an EEA family permit, even though failing to meet the requirements laid down for such a permit. It would also appear to ignore the fact that regulation 11 (like Article 5) contemplates a test in the present, so that the key point in time for deciding eligibility is the date on which the applicant presents himself at the border (or within a reasonable period of time thereafter), not the earlier date when he presented himself to an entry clearance or visa officer abroad. Further, as Mr Blundell pointed out, if the EEA family permit regime could be obviated in this way, it would have a discriminatory effect, since family members of an EEA national would be in a better position, at the entry clearance stage, than family members of UK nationals.

However, in my view all that CO meant by referring to the appellant being “entitled to the admission to the United Kingdom” was that on the facts of that case, if the appellant were to present himself to the authorities at the United Kingdom border, he would be in a position to meet the requirements of regulation 11, at least so long as he was able to produce the relevant documentation probative of his family relationship and of the fact that the EEA national he was seeking to join was exercising Treaty rights. The Tribunal should not be understood as purporting to declare the appellant’s EEA rights pre-admission. Nothing said in regulation 11 or Article 5 suggests otherwise.

In this case, on the basis of the facts accepted by the immigration judge, it would appear that the appellant was in a position to qualify for a right of admission should she travel to the United Kingdom border and be able to produce the relevant documentation. But whether she had an entitlement to admission could not be established in advance of admission.

For the reasons I have given, I conclude that the immigration judge did not materially err in law and that his decision dismissing the appeal against refusal of a United Kingdom EEA family permit must stand.