MO v The Secretary of State for the Home Department

The appellant, a citizen of Iraq, applied to the respondent under reg 17(4) of the Immigration (European Economic Area) Regulations 2006 (SI/2006/2003) for a residence card as an extended family member of an EEA national on the basis that he is in a durable relationship with her. The Secretary of State refused his application. The only reason given for the refusal is that “you are considered to be an illegal entrant. You therefore had no valid leave at the time that this application was made to either enter or remain in the United Kingdom. In these circumstances it not considered appropriate to issue you with a residence card”. The respondent went on to consider whether the appellant had a right under Article 8 of the European Convention on Human Rights to remain in the United Kingdom, and decided that he had not.

The appellant appealed against the decision refusing him a residence card. The Immigration Judge agreed with the respondent’s reasons for refusing to issue one, and accordingly decided that the discretion implicit in reg 17 should not have been exercised differently. He also dismissed the appeal insofar as it relied on grounds under Article 8. The appellant attained an order for reconsideration and it is thus that the matter comes before us.

Mr. de Mello referred us to the statement of reasons for the consent order of the court of appeal in FD (Algeria) C5/2007/1767, on appeal from a decision of this Tribunal [2007] UKIAT 00049. We record here our understanding that the Tribunal’s decision in principle in FD that it has power to review the exercise of a discretion exercised within the EEA Regulations has not been the subject of judicial doubt. In FD, however, the parties agreed that the decision in the appellant’s case was defective because, in the words of the statement of reasons,

“Following the grounds for permission to appeal by the Court of Appeal and investigation into the facts of the case it has emerged that in error, and contrary to the practice of the Secretary of State, all of the personal circumstances of the appellant were not considered and his application was refused that he was an overstayer when he applied for a residence card”.

Mr. de Mello told us that he understood that the Secretary of State is formulating a policy on applications under reg 17(4) which will be able to be published.

We do not read the relevant part of the statement of reasons as indicating that immigration history will be irrelevant when deciding whether to grant a residence card under reg 17. What is clear, however, is that the Secretary of State’s practice is, as it certainly should be, to consider all the circumstances of an applicant before refusing a residence card under that Regulation. It is clear on the face of the refusal letter in the present case that that was not done. There are a number of circumstances taken into account in relation to Article 8 that were clearly not taken into account in relation to whether a residence card should be issued under the Regulations. For those reasons it is clear to us, and the parties before us agreed, that the Secretary of State has not yet undertaken the task that the Regulations require of her and that the decision refusing the appellant a residence card is one which is not in accordance with the law.

The Immigration Judge erred in law in failing to recognise that, although it is clear that he did not have the information we have. We substitute a determination allowing the appeal, with the effect that the appellant’s application remains outstanding before the Secretary of State awaiting a lawful decision.