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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> TR (reg 8(3) EEA Regs 2006) [2008] UKAIT 00004 (28 December 2007) URL: https://www.bailii.org/uk/cases/UKIAT/2008/00004.html Cite as: [2008] UKAIT 4, [2008] UKAIT 00004 |
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TR (reg 8(3) EEA Regs 2006) [2008] UKAIT 00004
ASYLUM AND IMMIGRATION TRIBUNAL
Date of hearing: 9th October 2007
Date Determination notified: 28 December 2007
Before
Between
TR | APPELLANT |
and | |
Secretary of State for the Home Department | RESPONDENT |
DETERMINATION AND REASONS
For a relative to satisfy regulation 8(3) of the EEA Regs 2006 the "serious health grounds" need to be significantly beyond ordinary ill health and as a matter of practice will require detailed medical evidence in support of any claim. Personal care must be provided on a day to day basis and relate either or both to the physical and mental tasks and needs required for a person to function. "Strictly" is a restrictive or limiting requirement and imports a need for complete compliance or exact performance and reinforces the need for personal care to be provided on a day to day basis.
1. The appellant was born on the 18 July 1978 and is a citizen ofSri Lanka
. He claimed asylum on arriving in the United Kingdom in March 2001 but his appeal rights were extinguished by October 2003. He applied for a residence document on 20 December 2005. He claimed a right of residence as the relative of an EEA national exercising his treaty rights.
2. On 3 July 2006 the respondent gave notice of his decision to refuse to issue a residence card, relying on regulations 7 and 8 of the Immigration (European Economic Area) Regulations 2006 (SI 2006 no. 1003) (the 2006 Regulations). The appellant's appeal was heard by Immigration Judge Turquet. Her decision was promulgated on 25 September 2006 and the appeal was dismissed.
3. It was contended on behalf of the appellant by his counsel, Simon Cox, that the immigration judge erred in law by holding that the appellant could not rely on Article 10(2) of the EEC Regulations 1612/78 as implemented in the UK, most recently by the Immigration (European Economic Area) Regulations 2000 (SI No. 2326) (the 2000 Regulations) because of the repeal of those two sets of regulations with effect from 30 April 2006 by the Council Directive 2004/38/EC, as implemented by the 2006 Regulations. The basis for this submission was that the application was made on 21 December 2005 before the implementation of the 2004 Directive and the 2006 Regulations. It was submitted that the failure to complete the decision on the case prior to 31 April 2006 meant that the appellant lost the benefit of Regulation 10(2) of the 2000 Regulations. The appellant was, it was said at all relevant times, dependent on his sister and brother-in-law, his brother-in-law being an EEA national who had exercised his treaty rights by moving from Germany to the UK. The appellant had never lived with the brother-in-law in Germany but had been dependent, it was claimed, on him and his sister whilst living in the UK.
4. It is further said that as a relative of an EEA national exercising Treaty Rights and being also dependent on that EEA national, the appellant would have been entitled to the issue of a residence permit under Regulation 10(1) of the 2000 Regulations. He met, it was claimed, the conditions in regulation 10(4), being a 'relative of an EEA national or his spouse and…dependent on the EEA national or his spouse'.
5. The immigration judge decided that the appellant was not dependent on the EEA sponsor. This decision might be wrong in law given the Tribunal's decision in LS (EEA Regulations 2000 – meaning of 'dependent')Sri Lanka
[2005] UKAIT 00132. That case had regard to the European Court of Justice case Lebon (ECJ Reports 316/85 judgment 18 June 1987) in deciding that the dependency need not be one of necessity. Such an error was not however material to the immigration judge's decision as to whether this appellant was an "extended family member" under regulation 8(2) of the 2006 Regulations. The immigration judge found, and this was, it appears, undisputed, that the appellant had not lived in an EEA country other than the UK with the EEA national sponsor, nor indeed in
Sri Lanka
. For that reason alone, whether or not he was dependent in the UK, he had not been previously dependent and so could not satisfy regulation 8(2).
6. Mr Cox also argued on behalf of the appellant that because the application for a residence permit was made prior to the implementation of the 2006 Regulations and the 2004 Directive, the application had to be considered under the older Directive and the 2000 Regulations. To do otherwise he said, was to go against the principles of legal certainty.
7. Schedule 4, paragraph 3 of the 2006 Regulations provides:
3(1): An application for an EEA family permit, a residence permit or a residence document, made but not determined under the 2000 Regulations before 30 April 2006, shall be treated as an application under these regulations for an EEA family permit, a registration certificate, or a resident's card, respectively.
This provision makes it absolutely clear that applications made, as here, prior to the implementation of the 2006 Regulations but not decided before their implementation, are to be treated as applications under the 2006 Regulations. The provision makes the 2006 Regulations retrospective. This tribunal in MG v VC (EEA Regulations 2006 conducive deportation) Ireland [2006] UKAIT 00053) said at paragraphs 16 and 17:
"16. The first thing that is apparent is that the new regulations came into force immediately on 30 April 2006 and that the previous law is no longer in effect. The effect on existing decisions and appeals is quite remarkable…They are to be treated as decisions and appeals under the new regulations. The consequence may be that a decision, lawful when it was made, and a determination by the tribunal containing no error of law when it was made, may now disclose an error of law because of the retrospective change of the decision and its authority.
17. Those considerations apply directly in relation to decisions under the previous regulations and appeals against EEA decisions under those regulations."
8. In this case only the application was made when the 2000 Regulations were in force. The decision under appeal was in fact made on 3rd July 2006 when the 2006 Regulations were in force. Mr Cox, argued that the principle of legal certainty as interpreted by the European Court of Justice in Belbouab v Bundesknappschaft (ECR 1978 page 01915, BAILII: [1978] EUECJ R-10/78) applied. So, it is said, as the application was made when the old 2000 Regulations were in force the law applicable to it ought to be the pre 30th April 2006 law. In Belbouab the appellant was an Algerian national. He had been a French national in the 1950s and had worked as a mine worker in Germany. When Algeria became a new state he lost his French nationality. During his period in Germany he had acquired rights to a pension. His application for that pension was rejected by the German authorities on the basis that he no longer had nationality of a member state of the European Union and was therefore no longer entitled to the pension.
So M. Belbouab had been a national of a member state when he acquired his pension rights. The ECJ said at paragraph 7:
"It is clear from this that the criterion of nationality laid down (in regulations) must be examined in direct relationship to the periods during which the worker in question carried on his work."
Further they provided that:
"In order to satisfy the principle of legal certainty, one of the requirements of which is that any factual situation should normally, in the absence of any contrary provision, be examined in the light of the legal rules existing at the time when that situation obtained, the second condition must be interpreted as meaning that the status of being a national of one of the member states refers to the time of the employment of the payment of the contributions relating to the insurance periods and of the acquisition of the corresponding rights."
9. We do not see this as in any way supportive of the submission that legal certainty requires decisions in cases such as this to be made on the basis of the law as it was at the date the application was made. Mr Belbouab had acquired rights during the period he was employed as a mine worker in Germany, having no doubt paid relevant insurance contributions. They were personal to him and had been earned by him. He was also a French citizen at the time and so a citizen of an EU state. The dependency here is in no way equivalent. The appellant was not by such dependency as he may have had acquiring rights in an EEA state still less exercising any rights as a worker or a citizen of an EEA state none of which he was. Belbouab does not in our judgment assist this appellant. The decision by the respondent and by the immigration judge were both properly made in the light of the relevant law applying at the time of each decision. Each had to apply the 2006 Regulations as do we.
10. We do not regard the position as in any way unclear. The transitional provisions are themselves entirely clear. It is open to the legislature to implement the Directive in such a way as it chooses. As the immigration judge pointed out, Article 37 of the Directive "does not inhibit Member States from repealing more favourable provisions or seeking to limit their scope so long as any laws, regulations or administrative provisions are not inconsistent with the Directive". It may be the position might have been more favourable to the appellant under the 2000 Regulations, but he can no longer benefit from that provision. This is not an issue in our judgment which requires a reference to the European Court of Justice.
11. We conclude that there was no material error of law made by the immigration judge in deciding that the 2006 Regulations applied to this case and that the appellant could not satisfy regulation 8(2) in particular. Nor (although this was not argued before us) could he satisfy regulation 8(4) as he did not meet the requirements in the immigration rules for indefinite leave to enter or remain in the UK as a dependent relative of an EEA national.
12. However, the immigration judge did make an error of law in the manner in which she approached the appellant's potential entitlement to be treated as an extended family member in relation to the application of regulation 8(3) of the 2006 regulations:
8(3) A person satisfies the condition in this paragraph if the person is a relative of an EEA national or his spouse or his civil partner and, on serious health grounds, strictly requires the personal care of the EEA national, his spouse of his civil partner.
The judge said at paragraph 28:
"This appellant was not living with an EEA national or his spouse or civil partner before they moved to the United Kingdom. He did not come to the United Kingdom because of his health problems."
This in our judgment is clearly a wrong approach. Contrary to the position under regulation 8 (2), there is no requirement in regulation 8(3) of the 2006 regulations that the "extended family member" needs to have resided in another EEA country with the EEA national sponsor. If an EEA national is in the United Kingdom exercising Treaty Rights he can be potentially joined by any person who is a relative who "strictly requires the personal care of the EEA national…or…his spouse". The requirement for previous residence together in another EEA state is not present in that regulation, as it is in reg. 8 (2).
13. A significant amount of consultant psychiatric evidence was before the immigration judge. There were two psychiatric reports. One was from a Dr Patterson who had seen the appellant on three occasions from November 2003 to July 2006. The second was from Dr Gunan Kanagaratnam who had been treating the appellant for over two years and seeing him, in the main, each fortnight. There was also evidence before the judge from the appellant, his sister and his brother-in-law, the latter being the EEA national. The judge accepted that the appellant "has some mental problems". There were some incidents of self-harm. The judge at no stage addresses the issue of what as a matter of law the phrase "strictly requires the personal care of an EEA national…or...his spouse" means. There was evidence about some health care before the judge. But in our judgment such evidence needs analysing and relating to what the concept of "strictly requires personal care" means in the context of the legislation.
14. It was argued before us by Mr Blundell on behalf of the respondent that the test is a high one and there was enough for us to say that it was not satisfied in this case. Mr Cox on the other hand contended that there was adequate evidence for us to make a decision and that the appellant did require such care and the appeal should be allowed. We considered both these submissions and concluded that, before any decision could be made, we required further and fuller submissions on the law and to consider the evidence on health care and such further evidence on care as might be adduced.
15. We concluded that there had been a material error of law in this case in the handling of the evidence relating to the phrase "strictly requires the personal care of…" and the meaning of the phrase itself. We therefore adjourned the case for a second stage reconsideration, so that these matters can be canvassed.
The issues
Factual background
The respondent's challenge
Our conclusions on the facts
"In my opinion, he remains just as heavily dependent on his relatives as before. This is confirmed in the statements of his relatives to which I have had access and have listed above. His sister and his brother-in-law, with whom he lives, are so concerned about his state of mind, at night, in particular his waking up screaming and sleep-walking, that they have installed the equivalent of a baby alarm in his bedroom to monitor him. The care that he requires because of his impaired mental state is more appropriate to that of a primary school child than a man of nearly thirty. In my opinion, he is unequal to fulfilling the tasks of everyday adult life without their support."
Serious health grounds
Personal care
"Personal care means care which relates to the day to day physical tasks and needs of the person cared for (as for example, but without prejudice to that generality, to eating and washing) and to mental processes related to those tasks and needs (as for example, but without prejudice to that generality, to remembering to eat and wash)."
"Mrs S… (the appellant's sister) and her family continue to provide him with care and emotional support that is essential for his stability and prevent suicide. This will continue to be a requirement if a satisfactory prognosis is to be achieved. Mr and Mrs S… (the people he lives with) continue to play the leading role in his care although they are usefully supported in this function by other members of the family who live close by."
Strictly requires
Conclusion
Decision
MR JUSTICE HODGE
PRESIDENT
Date: 19/12/2007