RH v The Secretary of State for the Home Department

1. The appellant, a citizen of Jamaica, was admitted to the UK on 20 October 2002 as a visitor. In 2005 he adopted a fake identity, making use of a British passport belonging to someone else. On 2 May 2009 he was arrested for using a false instrument and on 22 May 2009 he was convicted and sentenced to twelve months imprisonment. On 29 June 2009 he claimed asylum, a claim he withdrew on 7 September 2009. On 14 October 2009 he applied for a residence card on the basis that he was in a durable relationship with an EEA national, Ms NM. On 19 November 2009 the respondent refused his application. He appealed. In a determination notified on 17 May 2010 Immigration Judge (IJ) P J Scott dismissed his appeal.

2. Disagreeing with the respondent the IJ found that the appellant and his partner had been in a durable relationship since December 2007 and so met the requirements of reg 8 of the Immigration (European Economic Area) Regulations 2006 (hereafter “the 2006 Regulations”). However, he considered that the respondent’s decision to refuse the application under reg 17(4) was “in accordance with the requirements of the Regulations”.

3. Turning to Article 8 of the European Convention on Human Rights (ECHR) the IJ was satisfied that the appellant had established family and private life in the UK and that his removal would constitute an interference with that right. But he did not consider that it would amount to a disproportionate interference. He concluded:

“The Appellant is also potentially at risk of deportation and clearly that is a matter of consideration by the Secretary of State. One must, however, take into account the family members of the appellant, namely his partner and son. His partner is French and, despite her desire solely not to return to France, there appears to be no reason why she should not so return. Their child is already living in France, where he has been for some considerable period of time. There appears to be nothing to prevent the appellant’s partner returning with him to Jamaica if she so desires, or for the Appellant to make application to move to France with his partner if she were to return there. The Appellant’s child’s situation would not be drastically effected by the Appellant’s removal to Jamaica. There is nothing to suggest that it would be unreasonable for the Appellant’s partner and/or their child if they so desire, to move to Jamaica, or for the entire family to live in France. Having considered the principles set down in Chikwamba [2008] and Beoku-Betts [2008] and I am satisfied that it would be entirely proportionate for the Appellant to be removed from the United Kingdom to Jamaica. Whilst there might be a close and genuine bond with his partner, that partner can be reasonably expected to follow the Appellant to the country of removal. The effect of the Order would not be to sever a genuine and subsisting relationship between parent and child, as parent and child are already living separate and apart as they have been for some time.”

4. The appellant’s grounds of appeal were twofold. It was submitted that the IJ erred firstly in failing to consider whether to exercise for himself the discretion afforded by reg 17(4) of the 2006 EEA Regulations; and secondly in finding his removal would be proportionate because it would not be unreasonable for the entire family to live in France.

5. We are satisfied that the IJ materially erred in law in his treatment of reg. 17(4). As explained by the Tribunal in FD (EEA discretion: basis of appeal) Algeria [2007] UKAIT 00049, at [15-17] an appellant is entitled to have his appeal allowed under s.86(3)(6) of the Nationality, Immigration and Asylum Act 2002 if the Tribunal considers that a discretion exercised in making the decision should have been exercised differently. For an IJ to confine himself to the question of whether the actual exercise of discretion by the Secretary of State was a lawful act is an error of law. Yet that is precisely the error the IJ made in this case at [21] when, instead of deciding whether to exercise the reg 17(4) discretion differently, he stated that “the respondent’s decision to refuse the application under the [2006 Regs] is in accordance with the requirements of those Regulations.” Plainly this failure may have had a material effect on the outcome of the appeal. Accordingly we set aside the IJ’s decision. Ordinarily, having decided the IJ has materially erred in law, our next task would be to proceed to remake the decision. However at this point in the hearing both parties sought to raise preliminary points: Mr O’Connor sought a remittal; Mr Hopkins sought an adjournment.

6. Dealing with Mr O’Connor’s point first, he raised a new matter relating to the fact that the appellant had a pending appeal against a decision that he was liable to automatic deportation under s.33 of the Borders Act 2007. Mr O’Connor submitted that in view of the fact that there were two sets of proceedings currently before the Tribunal dealing with almost identical issues in relation to the same appellant “the most efficient method” of disposing of the current appeal was to (i) set aside the determination of IJ Scott; and (ii) remit the appeal to the First-tier Tribunal (with directions for the two appeals to be heard in tandem) pursuant to s.12(2)(b) of the Tribunals, Courts and Enforcement Act 2007. Section 12 states:

“12 Proceedings on appeal to Upper Tribunal

(1) Subsection (2) applies if the Upper Tribunal, in deciding an appeal under section 11, finds that the making of the decision concerned involved the making of an error on a point of law.

(2) The Upper Tribunal –

(a) may (but need not) set aside the decision of the First-tier Tribunal, and

(b) if it does, must either –

(i) remit the case to the First-tier Tribunal with directions for its reconsideration, or

(ii) re-make the decision.

(3) In acting under subsection (2)(b)(i), the Upper Tribunal may also –

(a) direct that the members of the First-tier Tribunal who are chosen to reconsider the case are not to be the same as those who made the decision that has been set aside;

(b) give procedural directions in connection with the reconsideration of the case by the First tier Tribunal

(4) In acting under subsection (2)(b)(ii), the Upper Tribunal –

(a) may make any decision which the First-tier Tribunal could make if the First-tier Tribunal were re-making the decision, and

(b) may make such findings of fact as it considers appropriate.”

7. There is also an Upper Tribunal Practice Statement for the Immigration and Asylum Chamber of the Upper Tribunal, which states:

“7. “ Disposal of appeals in Upper Tribunal

Where under section 12(1) of the 2007 Act (proceedings on appeal to the Upper Tribunal) the Upper Tribunal finds that the making of the decision concerned involved the making of an error on a point of law, the Upper Tribunal may set aside the decision and, if it does so, must either remit the case to the First-tier Tribunal under section 12(2)(b)(i) or proceed (in accordance with relevant Practice Directions) to re-make the decision under section 12(2)(b)(ii).

7.2 The Upper Tribunal is likely on each occasion to proceed to re-make the decision instead of remitting the case to the First-tier Tribunal, unless the Upper Tribunal is satisfied that:-

(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party’s case to be put to and considered by the First-tier Tribunal; or

(b) there are highly compelling reasons why the decision should not be re-made by the Upper Tribunal. (Such reasons are likely to be rare).”

12. However, failure on the part of the respondent to deal with the appellant’s immigration position in this way does not justify remittal of this appeal. Dealing with the residence card appeal separately would not result in any fragmented consideration of his circumstances. On the contrary, it would only assist in clarifying a matter that would inevitably arise at the outset of his deportation appeal, namely the matter of his EEA/Union law rights.

13. If in this appeal the appellant is found to have a right to a residence card then the separate deportation appeal would have to take that as its starting point. Indeed in that eventuality we cannot see that the respondent could maintain her decision since it would not have been made on the correct legal basis: as already noted, in that eventuality any decision to deport would have to be made under reg 20(1) of the 2006 EEA Regulations: see reg 17(8).

14. If, on the other hand, we were to find in the context of this appeal that the appellant was not entitled to a residence card, then that finding would properly inform the separate assessment of both of the validity of the decision to deport and his Article 8 ECHR circumstances.

15. We fail to understand how it could properly be said that remittal was the only way to secure the appellant's appeal rights. Exercise of his right to appeal against refusal of a residence card has already resulted in his appeal progressing to the stage of the Upper Tribunal. In relation to the deportation appeal the appellant will still have an appeal before the First-tier Tribunal, with an opportunity to apply for permission to appeal to the Upper Tribunal if unsuccessful. Indeed, assuming lack of success in this appeal, even though in relation to the deportation appeal the FtT would have to treat the findings of this Tribunal as its start-point, there would be no bar to the appellant seeking to make a statement under s.120 raising the matter of his EEA rights afresh: see s.85(2). If anything, it seems to us that the respondent's careless compartmentalisation of its decision-making on the appellant's appeal has only been to the appellant's advantage, offering him more than one bite of the cherry.

17. The 2006 Regulations implement provisions of Directive 2004/38/EC (the “Citizens’ Directive”). Article 3(2) imposes a duty on Member States to “facilitate entry and residence” in respect of (a) “other family members” (OFMs) and (b) “the partner with whom the Union citizen has a durable relationship duly attested”. Regulation 8, which is headed “Extended family members” provides at 8(5) that:

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

18. Regulation 17(4) then deals with the circumstances under which the Secretary of State may issue a residence card to an extended family member.

19. The Tribunal has recently considered the case law on Article 3.2(a) family members in VN (EEA rights – dependency) Macedonia [2010] UKUT 00380 (IAC) and has previously considered the Article 3(2)(b) “durable relationship” category in YB . The Court of Appeal briefly considered the function of reg 17(4) in CS (Brazil) [2009] EWCA Civ 480. We should note at this point that whilst there may be issues of acte clair in relation to the precise ambit of the Article 3.2 duty to “facilitate entry and residence” as well as in relation to the precise meaning of “durable relationship”, they do not have a material bearing in this case. That is because, as we shall now come to, this case concerns whether there was a proper exercise of the discretion afforded by the 2006 Regulations at reg 17(4) and relates to an appellant who is accepted as being in a “durable relationship”.

20. Before stating our conclusions on the appellant's appeal against refusal of a residence card we remind ourselves of the IJ's findings of fact, which have not been challenged by the respondent, together with the further written evidence we have had presented to us at the hearing, whose truth Mr Hopkin did not question. The appellant has been in a durable relationship with his EEA partner since December 2007. She is a full-time employee of one of the River Island outlets, having recently been promoted to the post of supervisor and she is also currently receiving in-house training to be a manager. She wishes to continue to progress her employment career in the UK and is also considering undertaking further studies here in the future. She and the appellant have a child D born on 3 December 2008. When the appellant was in prison she decided that her son should live temporarily in France with his grandmother. Since the appellant was released from prison she had wanted her son to return to live with them, but this was delayed because she had to make an application for a French identity card and the French authorities had not accepted the photograph she had first enclosed. However, very recently she had received the identity card and her son had travelled to the UK with his grandmother – the latter was due to return to France shortly. The appellant, as was planned, is now D’s carer whilst she is at work.

21. In addition to his family life with his current partner and their child, D, the appellant also has a child, M, from his former partner. The latter and their child now live in France, but the appellant with his former partner’s blessing has contact with M and had seen him, both before and after he went to prison, on several occasions.

22. The appellant's evidence was that he no longer had any close relations in Jamaica.

23. We also had a NOMS report dated 16 April 2010 which assessed the appellant as at low risk of reoffending.

24. Balanced against the appellant's family life ties just described, the appellant has a poor immigration history. He came to the UK in October 2002 on a visitor’s visa and when that expired in March 2003 he became an overstayer. Although he had been in a genuine relationship with his current EEA partner since 2007, he began that knowing fully that his immigration status was precarious and also keeping from his partner the truth about his immigration position for some time. In May 2009 he was found to be in possession of, and to have used, a British passport belonging to someone else. He had not only used this to obtain employment but also to travel abroad, thereby exercising deception both abroad and in the UK. For this he had been convicted and sentenced to twelve months’ imprisonment. The fact that he had made a claim for asylum in June 2009 only to withdraw it in September 2009 strongly suggests that this claim was made as a delaying tactic rather than for any genuine reason. His claims that his father was killed in Jamaica as a result of gang crime and that he would be at risk on return there were found not credible by the IJ. Even if the appellant had no close family in Jamaica he had lived there for most of his life and had travelled back there for his great-aunt’s funeral in 2007. He was a fit and healthy young man. The evidence relating to whether his partner and their child, D, could accompany him to Jamaica was not open and shut, although she was adamant she did not want to live in Jamaica and that she and her child would find it difficult there.

25. Our task is to decide whether we should exercise the discretion contained in reg 17(4) differently from the respondent. (Mr O’Connor had initially submitted that we should allow the appeal as not being in accordance with the law in view of the respondent’s failure to exercise his reg 17(4) discretion, but, very properly conceded that the respondent’s refusal letter did amount to an exercise of that discretion). Having considered the evidence in the round we are quite satisfied that we should exercise our discretion in the appellant's favour. In part our reasons have to do with the fact that although serious his criminal conduct in making use of someone else’s passport does not appear to have been undertaken for any purposes other than to enter employment to enable him to travel back to Jamaica to attend a funeral and to visit France with his French partner. Although the sentencing judge noted that this type of crime – use of a false instrument – “is also committed by international terrorists and in organised crime syndicates, and so your offence diverts attention from these serious matters”, the sentence imposed was the shortest the judge could properly impose. It is true that the sentencing judge went on to say that the sentence “carries a mandatory deportation attached to it”, but (leaving aside the fact that the powers of the sentencing court are only to recommend deportation) he was not to know (or did not appear to know) that the appellant had entered into a genuine relationship with Ms NM and that as a result the appellant's case would fall to be considered under the 2006 EEA Regulations. Nor can we see that the refusal to issue a residence card could be justified on reg 20(1) grounds, namely “grounds of public policy, public security or public health”. The requirement that the personal conduct of the family member of an EEA national be considered as a “genuine, present and sufficiently serious threat affecting one of the fundamental interests of society” (reg 21(5)) - a requirement which closely mirrors Articles 27-28 of the Directive – plainly cannot be met in this case.

26. Mr Hopkin made the centrepiece of his submission the point relied upon by the IJ who had dismissed the appeal, namely that:

“His partner is French and, despite her desire solely not to return to France, there appears to be no reason why she should not so return. ... There appears to be nothing to prevent the appellant's partner returning with him to Jamaica if she so desires, or for the appellant to make application to move to France with his partner if she were to return there. The appellant's child’s situation would not be drastically affected by the appellant's removal to Jamaica. There is nothing to suggest that it would be unreasonable for the appellant's partner and/or their child if they so desired, to move to Jamaica, or for the entire family to live in France.”

27. Mr Hopkin acknowledged that when the Immigration Judge was deciding the case the child D was still living in France, but submitted that the fact of his very recent arrival in the UK did not significantly alter the fact that he was clearly happy whether he lived in France or the UK and he could be with this mother wherever she went.

28. The principal difficulty we have with this submission is that it attaches no positive weight to the fact that the appellant is an Article 3.2(b) family member (or extended family member to use the language of the 2006 Regulations) in respect of whom the UK is under an obligation to “facilitate” his entry or residence. Whatever the precise meaning of that obligation it cannot amount to its opposite: i.e. positive discouragement of entry and residence. Nor does Mr Hopkin’s submission engage with the fact that the appellant’s EEA national/Union citizen partner is in the UK exercising treaty rights and has evinced her clear desire to continue to do so. In our judgement, proper exercise of the discretion afforded by reg 17(4) of the Immigration (European Economic Area) Regulations 2006 requires the decision-maker to take into account whether or not the effect of refusal of a residence card to the claimant would frustrate the continuing exercise of the free movement rights of the EEA family member/Union citizen.

29. If the appellant were removed to Jamaica that would clearly have an adverse impact on his partner’s rights as an EEA national/Union citizen. She would be put in an invidious position: having to choose between continuing to reside in the UK without her partner and without the father of her son or going (with her child) to live in Jamaica despite not wishing to do so. In our judgment the effect of the refusal of a residence card to the appellant would be to hinder or undermine effective exercise of his partner’s right of free movement. The same would apply if she decided to return to France. The appellant’s partner, we note, has recently been promoted in her shop job. She also expressed a hope to study in the UK, which is of course a separate basis on which she might qualify in the future as a qualified person (subject to meeting resources requirements).

30. Of course, we recognise that not every EEA national/Union citizen will be hampered in their exercise of Treaty rights by the removal of a family member (whether an Article 2.2(c) or (d) family member or (as here) an Article 3.2 family member). To use the example given by Advocate General Sharpston in the case of Zambrano (Case C-34/09) 30 September 2010, that will not be the position of an EU citizen who has attained his majority who is able to exercise his rights to travel and to reside within the territory of the European Union without it being necessary to grant his parents concurrent rights of residence in the chosen Member State. But the evidence in this case is that the appellant’s EEA partner’s right to reside in the UK would be adversely affected by the appellant’s expulsion.

31. Mr Hopkin has echoed the IJ's view that there was a reasonable alternative open to the appellant which would involve him applying for entry and residence in France. However, that would be a matter for French domestic law and the French authorities would, of course, be aware of his poor immigration history and his use of a false instrument. In respect of his efforts to reside in France he would not be able to invoke any EEA right of free movement or residence, as his EEA partner is a national of France.

32. We would also observe that if the respondent were to continue to seek to deport the appellant, she would have to do so on the more restricted grounds specified in reg 20(1) and reg 21 of the 2006 Regulations. As already noted, we see no realistic prospect of the respondent meeting the stringent requirements set out therein.

33. In light of the above assessment we conclude that we should exercise our discretion under reg 17(4) to decide that the appellant should be granted a residence card.

34. Given our findings under reg 17(4) it is unnecessary for us to deal at any length with the appellant's Article 8 ECHR grounds. Clearly, in view of the fact that we have found he has an EEA right to reside, there is no public interest in his expulsion from the United Kingdom. The appellant is entitled to succeed on Article 8 grounds as well.

35. To summarise:

The IJ materially erred in law and we have set aside his decision. The decision we remake is to allow the appellant's appeal.