YB v The Secretary of State for the Home Department

The appellant, born on 10 May 1986, is a national of Ivory Coast. She claimed to have entered the UK as a minor on 5 September 2000 using a false French passport. An asylum application made on her behalf in 2001 was refused on 2 February 2002 but on the same date she was granted ELR until 8 May 2004. An application for further leave to remain was refused on 22 July 2004 and her appeal against that refusal was unsuccessful.

On 29 December 2005, by which time she had become an overstayer, she applied for a residence document on the basis that she was, in terms of the Immigration (European Economic Area) Regulations 2000 (“the 2000 Regulations”) the dependant an EEA national, a Mr D who was a French national. They submitted that they had been in a relationship since September 2003. By the time the respondent made a decision on her application, on 9 October 2007, the 2000 Regulations had been replaced by the Immigration (European Economic Area) Regulations 2006 (SI/2006/2003) (“the 2006 Regulations”), which had retrospective effect such that her application stood to be considered under reg 8(5) of the 2006 Regulations as that by an unmarried partner seeking a residence card on the basis that she was “in a durable relationship” with an EEA national exercising Treaty rights in the United Kingdom. Whilst accepting that the couple had been in a durable relationship, the respondent noted that the appellant did not have valid leave to remain at the time of her application. “In the circumstances,” it was stated, “it is not considered appropriate to issue you with a Residence Card”. It was further stated that “[t]his consideration has taken into account the United Kingdom’s obligations under the ECHR … with specific regard to Article 8 …”. There were said to be no insurmountable obstacles to the appellant's partner accompanying her to the Ivory Coast and so the refusal of a residence card did not amount to an interference with her right to family life. Even if her partner was unable or unwilling to accompany her, that would not constitute an unlawful interference with her family life. It was also considered he could “remain in the United Kingdom and support any application she made from abroad to return with a view to settlement as the unmarried partner of an EEA national exercising a treaty right in the United Kingdom”.

In a determination notified on 19 December 2007, Immigration Judge Traynor dismissed the appellant's appeal. He considered the appellant was caught by the provisions of reg 20(1) of the 2006 Regulations concerning public policy, public security or public health. The appellant was successful in obtaining an order for reconsideration and so the matter comes before us. The grounds for reconsideration contended first of all that the Immigration Judge had erred in dismissing the appeal on the basis that the appellant was caught by the provisions of reg 20(1). Reg 20(1) had not been invoked by the respondent expressly and the Immigration Judge was wrong, it was said, to reason that the respondent had relied “implicitly” on it.

The Immigration Judge was also said to have applied too restrictive an interpretation of the “public policy” proviso under reg 20(1), in that he failed to have regard to reg 21(5)(a)-(d) which provide that decisions taken under the public policy proviso should be based on the personal conduct of the individual concerned which must “represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society” and should not be made for the purpose of general prevention or of deterrence of others.

The second ground for reconsideration alleged a failure on the part of the Immigration Judge to consider the appellant's particular circumstances before assessing whether it would be disproportionate to remove the appellant to Ivory Coast. The third ground alleged a failure to follow the European Court of Justice (ECJ) case of MRAX (Case C-459/99 Mouvement contre le racisme, l’antisemitisme et la xenophobie ASBL (MRAX) v Belgian State [2002] ECR 1-6591).

The relevant provisions of the 2006 Regulations are as follows:

In these Regulations "extended family member" means a person who is not a family member of an EEA national under regulation 7(1)(a), (b) or (c) and who satisfies the conditions in paragraph (2), (3), (4) or (5).

A person satisfies the condition in this paragraph if the person is the partner of an EEA national (other than the civil partner) and can prove to the decision maker that he is in a durable relationship with the EEA national.

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—

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.

The Secretary of State may refuse to issue, revoke or refuse to renew a registration certificate, a residence card, a document certifying permanent residence or a permanent residence card if the refusal or revocation is justified on grounds of public policy, public security or public health.

Where a relevant decision is taken on grounds of public policy or public security it shall, in addition to complying with the preceding paragraphs of this regulation, be taken in accordance with the following principles—

Before taking a relevant decision on the grounds of public policy or public security in relation to a person who is resident in the United Kingdom the decision maker must take account of considerations such as the age, state of health, family and economic situation of the person, the person's length of residence in the United Kingdom, the person's social and cultural integration into the United Kingdom and the extent of the person's links with his country of origin.”

So far as provisions of the Citizen’s Directive (EC/38/2004) are concerned, the following have possible relevance:

“Article 3 (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 other family members as defined in point 2 of Article 2 who accompany or join them.

2.

Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation facilitate entry and residence of the following persons:

(a)

any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;

(b)

the partner with whom the Union citizen has a durable relationship, duly attested.

The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.

Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends.

Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.

In order to ascertain whether the person concerned represents a danger for public policy or public security when assessing the registration certificate or, in the absence of a registration system, not later than three months from the date of arrival of the person concerned in its territory or from the date of reporting his/her presence within the territory, provided for in Article 5(5), or when issuing the residence card, the host Member State may, should it consider it essential, require the Member State of origin and, if need be, other Member States to provide information concerning any previous police record the person concerned may have. Such enquiries shall not be made as a matter of routine. The Member State consulted shall give its reply within two months.

The Member State which issued the passport or identity card shall allow the holder of the document who has been expelled on grounds of public policy public security or public health from another Member State to re-enter its territory without any formality even if the document is no longer valid or the nationality of the holder is in dispute.

Before taking an expulsion decision on grounds of public policy or public security the host Member State shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health family and economic situation, social and cultural integration, into the host Member State and the extent of his/her links with the country of origin.

The host Member State may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on serious grounds of public policy or public security.

An expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security as defined by Member States, if they:

Also relevant are recitals 6 and 22-24: Recital 6 states:

“(6)

In order to maintain the unity of the family in a broader sense and without prejudice to the prohibition of discrimination on grounds of nationality, the situation of those persons who are not included in the definition of family members under this Directive, and who therefore do not enjoy an automatic right to entry and residence in the host Member State, should be examined by the host Member State on the basis of its own national legislation, in order to decide whether entry and residence could be granted to such persons, taking into account their relationship with the Union citizen or any other circumstances, such as their financial or physical dependence on the Union citizen.”

Recitals 22-24 state:

“(22)

The Treaty allows restrictions to be placed on the right of free movement and residence on grounds of public policy, public security and public heath. In order to ensure a tighter definition of the circumstances and procedural safeguards subject to which Union citizens and their family members may be denied leave to enter or may be expelled, this Directive should replace Council Directive 62/221/EEC of 25 February 1964 on the coordination of special measures concerning the movement and residence of foreign nationals, which are justified on grounds of public policy, public security or public health.

(23)

Expulsion of Union citizens and their family members on grounds of public policy or public security is a measure that can seriously harm persons who having availed themselves of the rights and freedoms conferred on them by the Treaty, have become genuinely integrated into the host Member State. The scope of such measures should therefore be limited in accordance with the principle of proportionality to take account of the degree of integration of the persons concerned, the length of their residence in the host Member State, their age, state of health, family and economic situation and the links with their country of origin.

(24)

Accordingly, the greater the degree of integration of Union citizens and their family members in the host Member State, the greater the degree of protection against expulsion should be. Only in exceptional circumstances, where there are imperative grounds of public security, should an expulsion measure be taken against Union citizens who have resided for many years in the territory of the host Member State, in particular when they were born and have resided there through their life. In addition, such exceptional circumstances should apply to an expulsion measure taken against minors, in order to protect their links with their family, in accordance with the United Nations Convention on the Rights of the Child, of 20 November 1989.”

Plainly the appellant is an “extended family member” under the 2006 Regulations (the term used within the Citizens Directive is “other family member”: see Article 3(2)(a)). We are in no doubt that the Immigration Judge materially erred in law in treating reg 20(1) as relevant to his case. The respondent’s decision to refuse him a residence card was based exclusively on reg 17. The refusal letter stated on page 2:

“Even if a person is in a durable relationship for the purposes of Regulation 8(5) of the 2006 Regulations, and is thus an extended family member, that person is only entitled to a residence card under Regulation 17(4) if, in all the circumstances, it appears to be appropriate to issue the card.

You are considered to be an overstayer.

You therefore have no valid leave at the time this application was made to either enter or remain in the United Kingdom. In the circumstances it is not considered appropriate to issue you with a residence card.”

The respondent went on to consider whether this refusal was compatible with Article 8 of the ECHR, but there was no attempt to invoke (via reg 17(8)) reg 20(1). Despite noting at para 28 that the respondent relied on reg 17, the Immigration Judge proceeded to assume that the respondent had also relied on reg 20(1): see paras 36, 37.

Furthermore, insofar as the Immigration Judge sought to ground his own decision on reg 20(1), he failed to recognise that this provision does not make refusal to issue residence documentation mandatory if the refusal or revocation is justified on the grounds of public policy, public security or public health; it is discretionary (“the Secretary of State may refuse…”) .

It is particularly important to bear in mind that Community law regards “public policy” grounds as requiring a restrictive approach and due regard to procedural safeguards: that is confirmed by recitals 22-23 (so far as family members are concerned) and to some degree by recital 27 (so far as both family members and “other family members” are concerned) of the Citizens Directive. The Secretary of State not having sought to justify the refusal on reg 20(1) grounds, it was not open to the Immigration Judge to attempt to supply that justification himself.

In fairness to the Immigration Judge, reg 20(1) was drawn to his attention by the appellant's representatives who sought to argue that the schema of the 2006 Regulations only allowed for a refusal to issue a residence card under reg 17(4) on public policy grounds for refusing to issue a residence card under reg 20(1): see paras 16 and 30. However, there is no proper basis for reading these two regs as mutually exclusive in this way. If it had been the intention of the drafters to provide in respect of extended family members that refusal to issue a residence card could only be based on public policy, health and security grounds, they would have said so. In another section of the Regulations (within the same Part 4) there is, for example, reg 19(5) which stipulates that a person who has a right to remain in the United Kingdom by virtue of leave granted under the 1971 Act “must not be removed … ” unless his removal is justified on the grounds of public policy, public security or public health in accordance with Regulation 21.” Further, reg 17(8) states that reg 17 “is subject to regulation 20(1)”. That clearly conveys that even if an applicant benefits from an exercise of reg 17(4) discretion, he can still be refused under reg 20(1).

It was the appellant's position that to construe regs 17 and 20 as conferring two freestanding discretions would be contrary to case law of the European Court of Justice (ECJ) on free movement of qualified persons. However, this overlooks that all the cases on which the appellant relies relate to persons who are family members of EEA nationals/Union citizens. They do not relate to “other family members”/extended family members as such. The distinction is crucial because, as the respondent pointed out in the refusal letter, it is only the former who have an automatic right under the Citizen’s Directive to join or accompany an EEA national who is exercising a free movement rights: see Articles 2(2) and 3(1). The position of “other family members”/extended family members, including unmarried partners of EEA nationals, is governed by Article 3(2). Article 3(2) imposes a duty on Member States going no further than a duty to “facilitate” the entry and residence of such persons “in accordance with their own domestic legislation”. That is reinforced by recital 6 which states that the situation of other family members “should be examined by the host Member State on the basis of its own national legislation …”: see further KG (Sri Lanka) [2008] EWCA Civ 14; AP and FP (Citizens Directive Article 3(2); discretion; dependence) India [2007] UKAIT 00048.

That is not to say that the duty to facilitate is unconstrained by general principles of Community law, including the need to act consistently with the guarantees afforded by the ECHR (we discuss the latter later). Recital 6 makes clear that this duty is also subject to the prohibition of discrimination on grounds of nationality and that national examination must take into consideration such person’s “relationship with the Union citizen or any other circumstances such as their financial or physical dependence on the Union citizen”. A number of ECJ cases dealing with family members contain valuable guidance (including as we shall see, MRAX) on the application of these general principles. But the Citizens Directive does not otherwise fetter the right of Member States to apply rules of national law under domestic immigration legislation. We shall return to the relevance of these general principles later.

As already noted, the Immigration Judge concluded that the decision to refuse the appellant a residence card was not contrary to her Article 8 rights. The grounds for reconsideration contended that this conclusion manifested a further legal error on the judge's part. We accept that the Immigration Judge's treatment of Article 8 was also legally flawed albeit not quite for the reason stated. The judge’s error was twofold. First, he erred in his approach to the issue of whether the decision amounted to an interference with the appellant’s right to respect for family life. Despite citing AG (Eritrea) [2007] EWCA Civ 801, he appears to have ignored its warning against erecting a high threshold at the stage of assessing interference. Second, when he turned to consider, in the alternative, whether even assuming he had found the decision amounted to an interference, it was proportionate or not, he treated the issue as one in which he was concerned only with the legality of the respondent's decision. At paragraph 45 the Immigration Judge stated:

“Even if the appellant's Article 8 rights are engaged, I am nevertheless satisfied that where the respondent is charged with the legitimate aim of maintaining effective than [sic] immigration control that her decision to refuse the appellant's application has been based upon all relevant factors concerning the appellant's circumstances …” [emphasis added]

It may be that this was only mere carelessness in drafting on the part of the Immigration Judge and it might be said that in earlier paragraphs (paras 39-44) he had clearly conducted a merits assessment of the relevant factors arising under Article 8 (albeit he dealt with them solely in relation to the issue of interference). But in our judgment, it was incumbent on him, particularly in the light of the guidance given by the House of Lords in Huang [2007] UKHL (which he cited later in paragraph 45) to show that he applied that guidance rather than the “review” approach suggested by his wording of matters in the opening sentence of paragraph 45.

There was no Rule 32(2) notice served in this case and since there is no challenge to any of the Immigration Judge's findings of fact, we proceed to consider what decision to substitute for that of the Immigration Judge.

Dealing first with legality, in our judgement the decision of the respondent to refuse to issue the appellant a residence card was in accordance with the law, including Community law. To understand our reasons some background explanation is in order.

Reg 17(4) only applies if it is first of all established that a person is an extended family member as defined in reg 8; if that is not established, the decision-maker goes no further. Assuming that a person has established he or she is an extended family member, two features of reg 17 are vital. First, reg 17(4) confers a discretion on the respondent to issue a residence card if “[i]n all the circumstances it appears to the Secretary of State appropriate to issue the Residence Card” (reg 17(4)(b)). As already noted, the present Citizens Directive at Article 3(2) permits Member States to facilitate the entry and residence of “other family members”/extended family members “in accordance with [their] national legislation”. Second, reg 17(5) (mirroring Article 3(2) of the Directive) imposes a duty on the Secretary of State to “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”. In our view these twin features assist us in understanding the proper approach to how the reg 17(4) discretion should be exercised. Assuming a person has shown he or she is an extended family member, the decision maker must first examine the person’s position under comparable national law provisions; (we shall call this the “renvoi to national law” requirement) and he or she must further ensure that the examination has taken into account all the relevant personal circumstances of the applicant. Let us now look at each of these in turn.

The wording of Article 3(2) of the Directive clearly permits Member States to decide the cases of “other family members”/extended family members of Union citizens/EEA nationals in accordance with national law and there is nothing in Community law which prevents the United Kingdom from providing in reg 17(4)(b) that issue of a residence card for such persons is a matter for discretion. Whilst reg 17(4)(b) does not say so, we have no difficulty in accepting that the respondent is entitled when exercising this discretion to have regard to comparable provisions in the Statement of Changes in the Immigration Rules HC395 as amended (hereafter “the immigration rules”). To do so ensures, at least in some respects, like treatment of extended family members of EEA nationals with that accorded by these rules to extended family members of British nationals. The prohibition on discrimination on the grounds of nationality is a general principle of Community law and is also a principle expressly identified in recital 6 of the Citizens Directive (which deals specifically with other/extended family members).

However, there are important caveats which must attach to any renvoi to national law for reg 17(4) purposes. One is implicit in what we stated earlier: clearly such renvoi must focus on whether extended family members can meet certain substantive requirements; it must not seek to define terms which are Community law terms (such as “durable relationship”). Second, whilst the principle of non-discrimination justifies renvoi to the immigration rules, it must be borne in mind that such rules do not provide a precise comparison. The rules which are most similar, those dealing with dependent relatives and unmarried partners, refer to persons applying for settlement, whereas a residence card is issued only for five years or “the envisaged period of residence in the United Kingdom of the qualified person” (reg 8(6)). Thirdly renvoi must be to national law provisions that relate to in-country applications. In this case, for example, one should look at para 295D, not para 295A. The reason for this is because provision is only made for the issue of a residence card in-country. A fourth caveat is implicit in what we have already stated in the preceding paragraph: renvoi must be done in conformity with general principles of Community law. A further and interrelated caveat is this. We cannot see that such reference can be assimilated to an examination of whether the comparable national law criteria are met. To seek to reduce it solely to such criteria would run contrary to a general principle of Community law, namely that of proportionality. It would also overlook that the power given by the Directive to decide such cases “in accordance with national legislation” is paired with another Directive principle or requirement that there be “an extensive examination of the personal circumstances”. Neither principle is necessarily met simply by a mechanical checking of the comparable national law criteria. It may be in many cases that the assessment of an applicant’s position under the relevant immigration rules covers much of the ground required to achieve an “extensive examination”. But that will not necessarily be the case, if for example, the decision-maker has decided that the applicant fails under just one of the requirements of the relevant immigration rules and goes no further. The comparable immigration rules can only provide guidance, therefore, on what requirements an applicant under reg 17(4) should normally be expected to meet.

We are fortified in our understanding of how the recourse to national law should be carried out by two further considerations. One is that the Immigration Rules include, of course, para 5 (headed “Application”) which states:

“Save where expressly indicated, these Rules do not apply to those persons who are entitled to enter or remain in the United Kingdom by virtue of the provisions of the 2006 EEA Regulations]…”

The other consideration concerns what is said by the respondent in her internal policy instructions relating to EEA nationals and their family members.

Para 2.4 of the European Casework Instructions (updated 8 April 2008), at Chapter 2 states inter alia, that:

“When deciding whether it is appropriate in all the circumstances to issue a residence card, we must assess whether refusing the family member would deter the EEA national from exercising his/her Treaty rights or would create an effective obstacle to exercise of Treaty rights. Each case must be assessed on an individual basis but an example of where it might be appropriate to issue a residence card would be if the family member was very elderly or incapacitated. In assessing such cases it would be important to consider whether there were any relatives to care for him/her in the home country”.

The IDIs (Immigration Directorate Instructions) chapter 7 Section 3 EEA nationals and Family at 5.5.2 (July 2006 is still the latest version, although we are given to understand another is due soon) state:

“5.5.2

Extended family member

Regulation 8 further defines extended family members. In accordance with Regulation 7(3) extended family members are only to be treated as family members for the purposes of the EEA Regulations if they have been issued, as a matter of discretion, with an EEA family permit or a registration certificate or residence card. The EEA Regulations allow for an ‘extensive examination of the personal circumstances’ of a person applying under these provisions. The following persons are extended family members:

• A relative of an EEA national or of his/her spouse or civil partner who is residing in an EEA state in which the EEA national also resides and is dependant on the EEA national or is a member of his household AND is either accompanying or joining the EEA national OR has joined the EEA national and continues to be dependant or a member of the EEA national’s household.

• A relative of an EEA national or his/her spouse or civil partner who strictly requires personal care from the EEA national or his spouse or civil partner on serious health grounds.

• A relative of an EEA national or of his/her spouse or civil partner who would meet the requirements in part 8 of the Immigration Rules (other than those relating to entry clearance) for indefinite leave to enter or remain in the United Kingdom as a dependant relative of the EEA national or his spouse or his civil partner were the EEA national or his spouse or his civil partner a person present and settled in the United Kingdom.

• A person who is the partner of an EEA national (other than a civil partner) who can show that he/she is in a ‘durable relationship’ with the EEA national. When assessing whether a relationship is durable officers should satisfy themselves fully that the person meets the leave to enter requirements of an unmarried partner as set out in part 8 of the Immigration Rules (other than those relating to entry clearance).”

From the above it is clear that the policy instructions themselves recognise (at least in places) that meeting the requirements of the comparable immigration rules is not necessarily determinative: para 2 of the European Casework Instructions emphasises that “[e]ach case must be assessed on an individual basis but an example of where it might be appropriate to issue a residence card would be if the family member was very elderly or incapacitated…”. In the light of our foregoing analysis, it is also clear from the above that the IDIs, at least, appear to go too far in 5.5.2, which stipulates that officers “should satisfy themselves fully that the person meets the leave to enter requirements of an unmarried partner as set out in part 8 of the Immigration Rules (other than those relating to entry clearance). “ For one thing, since the subparagraph seeks to cover both pre-entry and in-country decisions (“EEA family permit or a registration certificate or residence card”), it is incorrect to specify only the rule dealing with “leave to enter”. For another, one of the requirements of the unmarried partners rule (at 295D (also at 295A)) is for the couple to have been “living together in a relationship akin to marriage which has subsisted for two years or more”, but there is no definition given by the Directive or the Regulations of the term “durable relationship”. So the policy instructions are helpful in indicating the general approach but should not be taken as necessarily correct in every particular.

Turning to the second aspect of the exercise of reg 17(4) discretion, it seems to us that the underlying purpose of reg 17(5) (which echoes Article 3(2) of the Directive) is to ensure that the decision maker takes account of the applicant’s personal circumstances in the round, looking at factors for and against exercising the discretion in his favour. The need is, to use the language of the ECJ in Case C-540/03 Parliament v Council and Commission [2004] OJ C47/21 (which concerned a challenge to the 2003/86/EC Directive on the right to family reunification [2003] OJ L 251/12 and its compatibility with human rights standards) is for a weighing-up of the competing interests in each factual situation. It follows from this that it would not amount to an extensive examination if the decision maker were simply to decide a person should be refused a residence card because he was an overstayer: that would be to render the requisite balancing of factors for and against otiose and would thus violate the Community law principle of proportionality (as further illustrated by the ECJ case of MRAX, to which we shall turn in a moment). It would be wrong to say in this case, for example, that the appellant could not be issued a residence card solely because he failed to meet the requirements of para 295D(i). At the same time, there is no requirement as to precisely how the extensive examination is to be done; at most, via recital 6 of the Directive (and ECJ case law to similar effect), one can say it should take into account the family relationship with the EEA national/Union citizen and ensure that the circumstances considered include (if applicable) “their financial or physical dependence on the Union citizen”. And in our view it would be wrong to make this more exacting a requirement than it is. Such an examination, then, must accord with general Community law principles, including that of proportionality. But the essential need is a simple one necessitating an examination in the round of the individual’s personal circumstances.

For this reason, we do not think it matters, for example, whether much of the examination takes the form of the human rights examination (essentially concerned with Article 8 of the ECHR) undertaken for the purposes of the Human Rights Act, although it will of course be necessary for the decision-maker to show that circumstances taken into account in relation to Article 8 are taken into account in relation to whether a residence card is issued: that is imperative. However, a human rights examination cannot on its own amount to an “extensive examination” because its focus is on the consequence of removal following from the decision (in this case to refuse to issue a residence card), not on the refusal itself: see MS (Ivory Coast) [2007] EWCA Civ 133, para 75. Sight must not be lost, that is to say, of the fact that the only essential need is for an examination in the round. It may also be, as we shall go on to explain, that in one respect any human rights examination may need to take a different hue than that it has in non-EEA cases, by virtue of the great importance EU law attaches to the principle of freedom of movement for persons exercising Treaty rights.

In the light of the above, let us look at how the respondent approached the exercise of discretion in the appellant’s case under reg 17(4) both in terms of renvoi to national law and examination of personal circumstances.

renvoi to national law

Perusal of the refusal letter in this case shows that it was very much undertaken with national law criteria in mind (as formulated in the policy instructions we identified earlier), so that consideration was given, inter alia, to the context of the immigration rules dealing with unmarried partners. The letter pointed out that the United Kingdom had a longstanding policy of enabling an unmarried partner of a person present and settled in the United Kingdom to enter the United Kingdom in order to live with the person if their relationship met specific criteria and it specifically identified the correct in-country rule governing that policy as para 295D of HC 395.

The letter also pointed out that the criterion within para 295D relating to living together in a relationship akin to marriage subsisting for two years or more was:

“equally relevant for the purpose of Regulation 8(5) of the 2006 Regulations and the definition ‘extended family member’ (it was, after all, developed for a similar immigration purpose). In addition, using the same criterion will ensure a parity of terms between unmarried partners seeking to join British citizens or persons settled and residing in the UK and those seeking to join EEA nationals.”

examination of personal circumstances

It was contended by Miss Qureshi that even on the assumption that the respondent was entitled to treat overstaying as a relevant factor in exercising her discretion under reg 17(4), she was not entitled to treat it as the only relevant factor or to rely simply on the mere fact of overstay, irrespective of surrounding circumstances. We would agree that a refusal decision justified solely on the basis of overstay would be contrary to Community law principles. As already noted, it would be contrary to the general Community law principle of proportionality. Applying this principle, the ECJ in MRAX at para 3 of its ruling stated that “a Member State may neither refuse to issue a residence permit nor issue an order expelling on the sole basis that his visa had expired before he applied for a residence permit”; in our view this reflects a principle that holds good for both family members and extended family members (indeed recital 6 of the proposed directive on common standards and procedures for returning illegally staying third-country nationals (COM (2005) 0391-C6-0266/2005 – 2005/0167 (COD)) states that: “[a]ccording the general principles of EU law, decisions taken under this Directive should be adopted on a case-by-case basis, based on objective criteria implying that consideration should go beyond the mere fact of illegal residence”).

It must also be borne in mind that in considering the exercise of her regulation 17(4) discretion the respondent had considered whether it was compatible with her Article 8 obligations. We are aware that decision letters in some 17(4) cases have not always sought to link consideration of Article 8 with the exercise of discretion under this regulation. However in this case the refusal letter noted that: “This consideration [of her exercise of reg 17(4) discretion] has taken into account the United Kingdom’s obligations under the [ECHR] with specific regard to Article 8”. That consideration went on, in considerable detail, to consider the appellant's individual circumstances. Whilst, of course, the respondent was separately obliged under the Human Rights Act 1998 to consider whether the decision was compatible with the appellant's human rights, the terms in which the letter was set out indicate that the respondent’s decision-making on both the EEA and human rights aspects of the appellant’s case was informed by the same concern to conduct a wide-ranging balancing exercise, taking into account relevant factors counting for and against the appellant. That the respondent should seek to exercise her reg 17(4) discretion in this way is hardly surprising, and is indeed the approach she was obliged to take, since general principles of Community law include the principle of proportionality and ECHR norms (as an integral part of Community law). At the same time, the respondent’s letter did not confine its examination to ECHR considerations (for reason given earlier, any such confinement would not have achieved an extensive examination).

We accept that the respondent did not refer expressly to all of the considerations relevant to the exercise of her reg 17(4) discretion, but we are satisfied, read as a whole, that save in one possible respect she properly identified valid reasons for refusing to issue a residence card. Our one point of doubt concerns the reference in the refusal letter to there being “no insurmountable obstacles to the appellant’s partner accompanying her to the Ivory Coast…” (see para 2 above). Reliance on this factor is difficult to square with the instruction given at para 2.4 of the European Casework Instructions that when deciding whether it is appropriate in all the circumstances to issue a residence card “we must assess whether refusing the family member would deter the EEA national from exercising his/her Treaty rights or would create an effective obstacle to exercise of Treaty rights”. It is also difficult to see how expecting an EEA national to accompany a partner abroad is consistent with the Community objective of free movement of Union citizens within the Community. It might be contended, in response, that to modify the approach here would violate the principle of non-discrimination between an EEA national and a British national. If it can (sometimes) be right to expect a British citizen to accompany a third-country national spouse/partner abroad, then why should it be any different for a comparable EEA national? Against that it may be doubted that the two are in the same position, at least in respect of the possibility of movement onwards to another country for family life purposes. One has come to another country to exercise Treaty rights; the other is simply in his or her own country. But since we cannot see that this consideration formed part of the respondent’s essential reasons for refusing to exercise reg 17(4) discretion in the appellant’s favour, we do not need to resolve this issue here.

However, we are not merely required to be satisfied that the respondent’s decision was in accordance with the law, but also to decide for ourselves whether the reg 17(4) discretion should have been exercised differently. The burden rests on the appellant to show that the discretion should be exercised differently by us: see FD (EEA discretion: basis of appeal) [2007] UKAIT 00049 ( Since hearing this appeal it has come to our notice that on 10 March 2008 the Court of Appeal ordered that FD’s appeal be treated as withdrawn (C5/2007/1767) in the light of the respondent withdrawing its decision in view of her acceptance that she had not considered all of FD’s personal circumstances. But the Court’s order in no way impugned the guidance for which FD was reported).

In our judgement the discretion conferred by reg 17(4) should not be exercised differently. Whilst we accept that the appellant began her relationship with her EEA partner at a time when she was still in the UK lawfully and that their relationship became a durable one (certainly by the time it had lasted two years), we consider that other factors, considered cumulatively, carry more weight: that at the time the appellant first met Mr D she was a person who only had limited leave to remain (until her 18^th birthday); that by the time she began living with him (in December 2004) her limited leave (until 8 May 2004) had already expired; that at the date of application she had only been living together with him for a year; that by that time she had been an overstayer for over six months; and that there was no evidence to indicate that there were any difficulties (relating for example to age, health or children) in the way of the appellant going abroad to make an application to an Entry Clearance Officer for an EEA family permit as the unmarried partner of an EEA national (see Regulation 12(2) of the 2006 Regulations) or to arrive at a UK border and seek admission as the unmarried partner of an EEA national (see reg 11(2)). In our judgment, examining whether the discretion afforded by reg 17(4) should have been exercised differently, we find that it should not: the particular facts of the appellant’s case made it (and continue to make it) inappropriate in all the circumstances to grant the appellant a residence card.

For the above reasons we conclude: