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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Owusu, R (on the application of) v Secretary of State for the Home Department [2009] EWHC 593 (Admin) (21 January 2009) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2009/593.html Cite as: [2009] Imm AR 549, [2009] EWHC 593 (Admin) |
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2A 2LL |
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B e f o r e :
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THE QUEEN ON THE APPLICATION OF YAW ![]() ![]() |
Claimant | |
v | ||
SECRETARY OF STATE FOR THE HOME DEPARTMENT | Defendant |
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WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
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(Official Shorthand Writers to the Court)
Mr R Dunlop (instructed by Treasury Solicitors) appeared on behalf of the Defendant
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Crown Copyright ©
"This Directive shall apply to all Union citizens and to family members as defined in Article 2(2)..."
and the clarification given by the Court of Justice in the case of Metock C-12708 (delivered on 25th July 2008). Regulation 12(1)(b) needs to be removed at least as it affects spouses and children under 21 of EEA nationals and in the meantime immigration judges should be applying the Directive directly in accordance with the judgment in Metock.
(i) he applied before he was 21;
(ii) in subsequent appellate proceedings about age cases the general rule is that the age is treated as the age of the application;
(iii) the adjudicator allowed his appeal not only on all issues of fact in so far as they may have been in dispute as to his relationship and his age and his entitlement but was simply in difficulty as to how to give effect to the EEA rights following from community law and the Directive to which reference has already been made because of the obstacle of regulation 12(1)(b). He concluded that regulation 11(4) was sufficient to give effect to his decision. The court need not be concerned with whether that was right or whether regulation 11 can really only apply to people who have rights under community law but recognised by regulation 12, but certainly, on the facts found, there is no room for dispute that this young man had a right to enter under community law. He, however, has been denied and continues to be denied entry clearance, both to give effect to the facts found in the adjudicator's decision and to reflect the clarification of the law, as it always did exist in the case of Metock.
1. I grant permission in this case.
2. I will not abridge time for the filing of detailed grounds, if any such grounds are to be filed and so normal time of 21 days will apply.
3. I propose to direct that this case be listed as a matter of urgency on the first open date after 28 days, time estimate half-a-day. It is very much to be hoped, however, that there will be no need for a further contested hearing in this case. The reasons why expedition is appropriate is because this young man has been waiting since 2007 for a lawful response to his perfectly legitimate application to get the relevant document so that as a Ghanaian national he can travel lawfully to this country to exercise the rights that he has long enjoyed by community law. I remind the defendant that community law grants rights of itself, they are not constituted by an executive decision recognising certain things. Community law is the source of rights which are directly enforceable. Community law requires decisions to be taken within a reasonable period of time. The 2 years that have elapsed where there have been erroneous rules, confusion in terms of the orders which the judge thought he could make at the time of the decision and revision and confusion of the position as to how the defendant should respond to the immigration judge's ruling have not inspired much confidence in the treatment of this young man's case to date. It is to be hoped that his personal position can be addressed speedily and so he can continue to enjoy his rights. I make it plain that I consider the suggestion that he makes fresh application for entry clearance which would then be refused because he is over 21 is as little short of outrageous.