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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> HB (EEA right to reside, Metock) Algeria [2008] UKAIT 00069 (15 September 2008) URL: https://www.bailii.org/uk/cases/UKIAT/2008/00069.html Cite as: [2008] UKAIT 69, [2009] Imm AR 38, [2008] UKAIT 00069 |
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HB (EEA right to reside - Metock) Algeria [2008] UKAIT 00069
ASYLUM AND IMMIGRATION TRIBUNAL
Date of hearing: 19 September 2008
Date Determination notified: 15 September 2008
Before
SENIOR IMMIGRATION JUDGE STOREY
SENIOR IMMIGRATION JUDGE WARR
Between
HB |
APPELLANT |
and |
|
Secretary of State for ![]() ![]() |
RESPONDENT |
Forthe
appellant: Mr J Rene (26 October 2007) and Mr C Lam (19 May 2008) instructed by Messrs David Tang & Co Solicitors
Forthe
respondent: Mr Y Oguntolu (26 October 2007) and Miss F Saunders (19 May 2008), Home Office Presenting Officers
DETERMINATION AND REASONS
1.The
ruling of
the
European Court of Justice in Metock (
Case
C-127/08 judgment 25 July 2008, [2008] EUECJ C-127/08) establishes that a third-country national in
the
United Kingdom who is a family member of an EEA national (Union citizen) exercising Treaty rights here, is entitled to a right of residence on
the
basis of
the
family relationship alone. That right is not subject to a requirement of lawful residence.
2. However, this ruling does not mean that there is any change inthe
approach to deciding EEA appeals involving such family members. Such appeals have to be decided (as before) under
the
Immigration (European Economic Area) Regulations 2006 ("
the
2006 Regulations"). Where
the
respondent's decision is to refuse to issue a residence card,
the
appellant, to succeed, must show not only that he has a right of residence under reg 14(2) but that
the
respondent is obliged to issue a residence card under reg 17.
3. Wherethe
family member is
the
spouse or civil partner of a United Kingdom national, he or she must first fulfil
the
conditions set out in reg 9. If
the
conditions set out in reg 9 are fulfilled,
the
family member must meet
the
requirements set out in
the
2006 Regulations as they apply to family members of EEA nationals exercising Treaty rights.
4. Whether a person can succeed in establishing a right of residence as a family member will depend, inter alia, on (i) that person establishing thatthe
family relationship is genuine and on whether (if invoked by
the
respondent) there are valid (ii) public policy (reg 21) or (iii) fraud grounds for denying him or her that right.
"20. With regard tothe
2006 Regulations, it is not a requirement that
the
Appellant had to be lawfully resident in an EEA State. That was
the
position under
the
2000 Regulations, but not repeated under
the
2006 Regulations.
21.The
requirement under Section 9(2)(b) of
the
Regulations is that
the
parties have to be "living together" before
the
United Kingdom national (
the
Appellant's wife) returned to
the
United Kingdom.
22.The
evidence is that
the
Appellant and his wife were living together in
the
Republic of Ireland throughout
the
time that they were in that country and during which time
the
Appellant's wife was in full-time employment."
"…Community law did not require a Member State to take [sic]the
grant of a Residence Permit to nationals of a non-Member State, who are members of
the
family of
the
Community national who has exercised his/her rights of free movement, subject to
the
conditions that those family members have previously been residing lawfully in another Member State – see paragraph 33 of Jia."
"35. I am satisfied thatthe
Appellant has discharged
the
burden of proof, on a balance of probabilities, on
the
documentary evidence before me that he and his wife have lived in
the
Republic of Ireland for
the
period of over 6 months.
The
Secretary of State's assertion that
the
Appellant had to be lawfully in another EEA Member State, is not correct as a matter of law and on this point I follow
the
determination in Jia."
36.The
Appellant is, therefore, entitled to a Residence Document as
the
[husband] of SH.
The
2006 Regulations
" …"qualified person" means a person who is an EEA national and inthe
United Kingdom as-
…
(a) a worker;
…"
" (1) Ifthe
conditions in para (2) are satisfied, these Regulations apply to a person who is
the
family member of a United Kingdom national, as if
the
United Kingdom national were an EEA national.
(2)The
conditions are that:
(a)The
United Kingdom national is residing in an EEA State as a worker or self-employed person or was so residing before returning to
the
United Kingdom; and
(b) ifthe
family member of
the
United Kingdom national is his spouse or civil partner,
the
parties are living together in
the
EEA State or had entered into a marriage or civil partnership and were living together in that State before
the
United Kingdom national returned to
the
United Kingdom.
(3) Where these Regulations apply tothe
family member of a United Kingdom national,
the
United Kingdom national shall be treated as holding a valid passport issued by
the
EEA State for
the
purposes of
the
application of Regulation 13 to that family member."
"11. Family members of United Kingdom nationals
(1) Ifthe
conditions in paragraph (2) are satisfied, these Regulations apply to a person who is
the
family member of a United Kingdom national returning to
the
United Kingdom as if that person were
the
family member of an EEA national.
(2)The
conditions are that –
(a) after leavingthe
United Kingdom,
the
United Kingdom national resided in an EEA State and –
(i) was employed there (other than on a transient or casual basis):
or
(ii) established himself there as a self-employed person;
(b)the
family member of
the
United Kingdom national is lawfully resident in an EEA State [NB. This was substituted from 7 February 2005, by SI 2005/47];
(c) on his return tothe
United Kingdom,
the
United Kingdom national would, if he were an EEA national, be a qualified person; and
(d) ifthe
family member of
the
United Kingdom national is his spouse,
the
marriage took place, and
the
parties lived together in an EEA State, before
the
United Kingdom national returned to
the
United Kingdom." (Emphasis added)
"(1)The
Secretary of State must issue a residence card to a person who is not an EEA national and is
the
family member of a qualified person or of an EEA national with a permanent right of residence under regulation 15 on application and production of –
(a) a valid passport; and
(b) proof thatthe
applicant is such a family member
…
(2) On receipt of an application under paragraph (1) and (2) andthe
documents that are required to accompany
the
application
the
Secretary of State shall immediately issue
the
applicant with certificate of application for
the
residence card and
the
residence card shall be issued no later than six months after
the
date on which
the
application and documents are received.
(3)…
(8) But this regulation is subject to regulation 20(1)".
The
first issue: whether
the
appellant has a right of residence
" 1) A qualified person is entitled to reside inthe
United Kingdom for so long as he remains a qualified person.
2) A family member of a qualified person residing inthe
United Kingdom under paragraph (1) or of an EEA national with a permanent right of residence under regulation 15 is entitled to reside in
the
United Kingdom for so long as he remains
the
family member of
the
qualified person or EEA national.
3) A family member who has retainedthe
right of residence is entitled to reside in
the
United Kingdom for so long as he remains a family member who has retained
the
right of residence.
4) A right to reside under this regulation is in addition to any right a person may have to reside inthe
United Kingdom under regulation 13 or 15.
5) But this regulation is subject to regulation 19(3)(b)."
"(1) Does Directive 2004/38/EC permit a Member State to have a general requirement that a non-EU national spouse of a Union citizen must have been lawfully resident in another Member State prior to coming tothe
host Member State in order that he or she be entitled to benefit from
the
provisions of Directive 2004/38/EC?
(2) Does Article 3(1) of Directive 2004/38/EC include within its scope of application a non-EU national who is:
- a spouse of a Union citizen who resides inthe
host Member State and satisfies a condition in Article 7(1)(a), (b) or (c) and
- is then residing inthe
host Member State with
the
Union citizen as his/her spouse
Irrespective of when or where their marriage took place or when or howthe
non-EU national entered
the
host Member State?"
"1. Directive 2004/38/EC ofthe
European Parliament and of
the
Council of 29 April 2004 on
the
right of citizens of
the
Union and their family members to move and reside freely within
the
territory of
the
Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC precludes legislation of a Member State which requires a national of a non-member country who is
the
spouse of a Union citizen residing in that Member State but not possessing its nationality to have previously been lawfully resident in another Member State before arriving in
the
host Member State, in order to benefit from
the
provisions of that directive."
"'host Member State' meansthe
Member State to which a Union citizen moves in order to exercise his/her right of free movement and residence".
"Article 3(1) of Directive 2004/38 must be interpreted as meaning that a national of a non-member country who isthe
spouse of a Union citizen residing in a Member State whose nationality he does not possess and who accompanies or joins that Union citizen benefits from
the
provisions of that directive, irrespective of when and where their marriage took place and of how
the
national of a non-member country entered
the
host Member State."
" 87. First, none of those provisions requires thatthe
Union citizen must already have founded a family at
the
time when he moves to
the
host Member State in order for his family members who are nationals of non-member countries to be able to enjoy
the
rights established by that directive.
88. By providing thatthe
family members of
the
Union citizen can join him in
the
host Member State,
the
Community legislature, on
the
contrary, accepted
the
possibility of
the
Union citizen not founding a family until after exercising his right of freedom of movement.
89. That interpretation is consistent withthe
purpose of Directive 2004/38, which aims to facilitate
the
exercise of
the
fundamental right of residence of Union citizens in a Member State other than that of which they are a national. Where a Union citizen founds a family after becoming established in
the
host Member State,
the
refusal of that Member State to authorise his family members who are nationals of non-member countries to join him there would be such as to discourage him from continuing to reside there and encourage him to leave in order to be able to lead a family life in another Member State or in a non-member country.
90. It must therefore be held that nationals of non-member countries who are family members of a Union citizen derive from Directive 2004/38the
right to join that Union citizen in
the
host Member State, whether he has become established there before or after founding a family.
91. Second, it must be determined whether, wherethe
national of a non-member country has entered a Member State before becoming a family member of a Union citizen who resides in that Member State, he accompanies or joins that Union citizen within
the
meaning of Article 3(1) of Directive 2004/38.
92. It makes no difference whether nationals of non-member countries who are family members of a Union citizen have enteredthe
host Member State before or after becoming family members of that Union citizen, since
the
refusal of
the
host Member State to grant them a right of residence is equally liable to discourage that Union citizen from continuing to reside in that Member State.
93. Therefore, inthe
light of
the
necessity of not interpreting
the
provisions of Directive 2004/38 restrictively and not depriving them of their effectiveness,
the
words 'family members [of Union citizens] who accompany … them' in Article 3(1) of that directive must be interpreted as referring both to
the
family members of a Union citizen who entered
the
host Member State with him and to those who reside with him in that Member State, without it being necessary, in
the
latter
case
, to distinguish according to whether
the
nationals of non-member countries entered that Member State before or after
the
Union citizen or before or after becoming his family members.
94. Application of Directive 2004/38 solely tothe
family members of a Union citizen who 'accompany' or 'join' him is thus equivalent to limiting
the
rights of entry and residence of family members of a Union citizen to
the
Member State in which that citizen resides.
95. Fromthe
time when
the
national of a non-member country who is a family member of a Union citizen derives rights of entry and residence in
the
host Member State from Directive 2004/38, that State may restrict that right only in compliance with Articles 27 and 35 of that directive.
96. Compliance with Article 27 is required in particular wherethe
Member State wishes to penalise
the
national of a non-member country for entering into and/or residing in its territory in breach of
the
national rules on immigration before becoming a family member of a Union citizen.
97. However, even ifthe
personal conduct of
the
person concerned does not justify
the
adoption of measures of public policy or public security within
the
meaning of Article 27 of Directive 2004/38,
the
Member State remains entitled to impose other penalties on him which do not interfere with freedom of movement and residence, such as a fine, provided that they are proportionate (see, to that effect, MRAX, paragraph 77 and
the case
-law cited).
98. Third, neither Article 3(1) nor any other provision of Directive 2004/38 contains requirements as tothe
place where
the
marriage of
the
Union citizen and
the
national of a non-member country is solemnised."
The
documentation issue
"a person who is not an EEA national must be admitted tothe
United Kingdom if he is a family member of an EEA national…and produces on arrival-
(a) a valid passport;
(b) an EEA family permit, a residence card or a permanent residence card."
"A family member of an EEA national residing inthe
United Kingdom under paragraph (1) who is not himself an EEA national is entitled to reside in
the
United Kingdom provided that he holds a valid passport ." (Emphasis added)
"Forthe
residence card to be issued, Member States shall require presentation of
the
following documents:
(a) a valid passport;
(b) a document attesting tothe
existence of a family relationship or of a registered partnership;
(c)the
registration certificate or …in
the
absence of a registration system, any other proof of residence in
the
host Member State of
the
Union citizen whom they are accompanying or joining;
…"
"Possession of a registration certificate as referred to in Article 8, of a document certifying permanent residence, of a certificate attesting submission of an application for a family member residence card, of a residence card or of a permanent residence card, may under no circumstances be made a precondition forthe
exercise of a right or
the
completion of an administrative formality, as entitlement to rights may be attested by any other means of proof." (Emphasis added).
The
second issue: whether
the
appellant was entitled to a residence card.
Our decision
Implications of Metock forcases
of family members in
the
UK illegally or unlawfully
" 95. Fromthe
time when
the
national of a non-member country who is a family member of a Union citizen derives rights of entry and residence in
the
host Member State from Directive 2004/38, that State may restrict that right only in compliance with Articles 27 and 35 of that directive.
96. Compliance with Article 27 is required in particular wherethe
Member State wishes to penalise
the
national of a non-member country for entering into and/or residing in its territory in breach of
the
national rules on immigration before becoming a family member of a Union citizen.
97. However, even ifthe
personal conduct of
the
person concerned does not justify
the
adoption of measures of public policy or public security within
the
meaning of Article 27 of Directive 2004/38,
the
Member State remains entitled to impose other penalties on him which do not interfere with freedom of movement and residence, such as a fine, provided that they are proportionate (see, to that effect, MRAX, paragraph 77 and
the case
-law cited).
98. Third, neither Article 3(1) nor any other provision of Directive 2004/38 contains requirements as tothe
place where
the
marriage of
the
Union citizen and
the
national of a non-member country is solemnised."
Existingcase
law
"49… Regulation (EEC) No 1612/68 covers only freedom of movement withinthe
Community. It is silent as to
the
rights of a national of a non-Member State, who is
the
spouse of a citizen of
the
Union, in regard to access to
the
territory of
the
Community.
50. In order to benefit in a situation such as that at issue inthe
main proceedings from
the
rights provided for in Article 10 of Regulation (EEC) No 1612/68,
the
national of a non-Member State, who is
the
spouse of a citizen of
the
Union, must be lawfully resident in a Member State when he moves to another Member State to which
the
citizen of
the
Union is migrating or has migrated".
"58…regard must be had to respect for family life under Art 8 ofthe
Human Rights Convention. That right is among
the
fundamental rights which, according to
the
court's settled
case
-law, restated by
the
preamble to
the
Single European Act 1986 and by Art 6(2) are protected in
the
Community legal order"
"58. It is true thatthe
Court held in paragraphs 50 and 51 of Akrich that, in order to benefit from
the
rights provided for in Article 10 of Regulation No 1612/68,
the
national of a non-member country who is
the
spouse of a Union citizen must be lawfully resident in a Member State when he moves to another Member State to which
the
citizen of
the
Union is migrating or has migrated. However, that conclusion must be reconsidered.
The
benefit of such rights cannot depend on
the
prior lawful residence of such a spouse in another Member State (see, to that effect, MRAX, paragraph 59, and
Case
C-157/03, [2005] EUECJ C-157/03 Commission v Spain, paragraph 28).
59.The
same interpretation must be adopted a fortiori with respect to Directive 2004/38, which amended Regulation No 1612/68 and repealed
the
earlier directives on freedom of movement for persons. As is apparent from recital 3 in
the
preamble to Directive 2004/38, it aims in particular to 'strengthen
the
right of free movement and residence of all Union citizens', so that Union citizens cannot derive less rights from that directive than from
the
instruments of secondary legislation which it amends or repeals."
"Barriers to family reunification are therefore liable to underminethe
right to free movement which
the
nationals of
the
member state have under Community law, as
the
right of a Community worker to return to
the
member state of which he is a national cannot be considered to be a purely internal matter".
"The
fact that a third-country national who is a member of a Community worker's family did not, before residing in
the
Member State where
the
worker was employed, have a right under national law to reside in
the
Member State of which
the
worker is a national has no bearing on
the
determination of that national's right to reside in
the
latter State".
General principles of Community law and Article 8
UKcase
law
"Ifthe
Union citizen is established in state A with a spouse who has not right to be there,
the
Union citizen cannot be seen as deterred from moving to state B by
the
fact that
the
spouse will not be able to accompany her, because she had had no right to have him in her company in state A…"
"Takethe case
of a Union citizen contemplating return from state B, in which she has been established as a worker, to her native state A. If her spouse had a right to be with her in state B he will be permitted under
the
free movement rules to enter state A with her. That was
the
position with Miss Eind…But if
the
spouse did not have a right to be in state B,
the
free movement rules will not apply, and he will only be permitted to enter state A if he complies with its domestic immigration law.
The
free movement rules do not apply because, as
the
Union citizen had no right to have her spouse with her in state B, she cannot have been deterred from moving to stage A by
the
fact that
the
same legal position will obtain in that state".
the
immigration judge materially erred in law;
the
appellant has an EEA right of residence;
the
decision we substitute for his is to allow
the appellant's appeal.
Signed:
Dr H H Storey