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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: http://www.bailii.org/ew/cases/EWHC/Admin/2009/593.html
Cite as: [2009] Imm AR 549, [2009] EWHC 593 (Admin)

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Neutral Citation Number: [2009] EWHC 593 (Admin)
Case No. CO/6053/2008

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

Royal Courts of Justice
Strand
London WC2A 2LL
21st January 2009

B e f o r e :

MR JUSTICE BLAKE
____________________

Between:
THE QUEEN ON THE APPLICATION OF YAW OWUSU Claimant
v
SECRETARY OF STATE FOR THE HOME DEPARTMENT Defendant

____________________

Computer-Aided Transcript of the Stenograph Notes of
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____________________

Mr A Briddock (instructed by Abriba & Ptr) appeared on behalf of the Claimant
Mr R Dunlop (instructed by Treasury Solicitors) appeared on behalf of the Defendant

____________________

HTML VERSION OF JUDGMENT
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  1. MR JUSTICE BLAKE: This is a renewed application for judicial review by the claimant, Yaw Owusu, in which he seeks the grant of a residence document or a family permit to enable him to travel to and enter this country to join his mother.
  2. The brief facts are as follows. The appellant is a citizen of Ghana. He was born in May 1987. He applied for a relevant entry document to the High Commission in Ghana to join his mother who was a national of the Netherlands, that is to say a Member State of the EEA who had been residing in the United Kingdom in her capacity as an EEA national exercising Treaty rights. She herself had the relevant evidence of her EEA rights by the form of a permit to reside in the United Kingdom until 2010.
  3. What then happens is that amongst other reasons given for the refusal, was the reason that the appellant was not lawfully resident in the EU at the time of his application, and therefore could not meet the requirements of 11(1)(b)(i) of the immigration EEA Regulations 2006. These requirements were a significantly new addition to the domestic regulations implementing our obligations under community law in apparent understanding of a decision of the European Court of Justice C-109/01 in the case of SSHD v Akrich [2004] QB 756. It is wholly irrelevant now to go back to debate what Akrich decided. But that regulation caused the immigration judge, when considering the appeal from the entry clearance officer's decision, to conclude that he could not allow his appeal under regulation 12 because of the existence of that regulation. He nevertheless found that the appellant was a family member, namely a child, under 21, at the time of the application and indeed still, I think under 21 at the time of the immigration judge's decision in January 2008 and accordingly concluded that the appellant is entitled to admission to the United Kingdom under the provisions of regulation 11(4) of the EEA Regulations 2006 that appeared to impose a duty on the entry clearance officers to facilitate admission of EEA nationals.
  4. The problem in this case is that regulation 12(1)(b) that was relied upon both by the entry clearance officer and the immigration judge is unlawful. It is a failure to transpose the requirements of the Directive 2004/58/EC of 29th April 2004 lawfully into domestic law. That Directive makes plain, first, by Article 2, who family members are and they include 2(2)(c), the direct descendants who are under 21 of the EEA national. Article 3(1), which says:
  5. "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.

  6. So much is either not disputed or is incapable of dispute today. The problem is how to resolve the application of Mr Owusu. I observe:
  7. (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.

  8. The position now is, of course, that this young man is over 21 and a fresh application would be considered on different principles and the different issues that would deprive him of his declaration of entitlement to enter under the adjudicator's decision.
  9. The refusal to grant the relevant residence document was challenged by judicial review. Mitting J concluded it was unnecessary to proceed by way of judicial review because all the young man concerned had to do was to show the immigration judge's decision to the entry clearance officer and he would gain entry. Sadly, that seems to have been a rather overoptimistic assessment of what would happen if that decision was shown, as it has been, because the point is now taken that there was no obligation to issue entry clearance because of the finding about regulation 12(1)(b). That is at the very least a desperately unattractive approach by the defendant to take in this continuing saga, since she is manifestly seeking to rely upon her own wrong in failing to understand and implement the law properly.
  10. I conclude, therefore, that this is much more than an arguable case for judicial review. Indeed I utterly fail to see what conceivable defence there could be to this application, having regard to the facts found by the adjudicator, the obligation on the defendant and the various agencies for which she is responsible to give effect to community law and to the judicial determination of the immigration judge and the judge, as it turned out, wrongly thinking that regulation 12(1)(b) had validity when it is flagrantly unlawful. Nevertheless, I recognise that there are minds need to be borne on this matter and it is not a case in which I am minded to form this application for permission summarily into formal proceedings, although my mind did think about that at some earlier stage in the reading.
  11. 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.

  12. There remains the problem that until the offending rule is revisited and clarified to respect community law, as to the position of other people in similar situation. I urge the defendant to give urgent consideration to that but in the meantime I give permission for this decision on permission to be quoted to immigration judges and that in respect of spouses and children who are indeed children of EEA nationals, under 21, that immigration judges should ignore the terms of regulation 12(1)(b) applied to that class and give direct effect to the rights of the claimant under the regulations and are accordingly entitled to direct that the relevant document to give effect of the position should be issued. Thank you very much for your assistance.
  13. MR DUNLOP: There is an application for costs to be assessed.
  14. MR JUSTICE BLAKE: Is it not better, that goes to the full hearing, the costs?
  15. MR DUNLOP: My Lord, potentially but if does come to an end at this stage.
  16. MR JUSTICE BLAKE: Well, I think you have a pretty strong steer on what I would have done.
  17. MR DUNLOP: Quite.
  18. MR JUSTICE BLAKE: You say it goes over.
  19. MR BRIDDOCK: Absolutely, and I mean--
  20. MR JUSTICE BLAKE: I am not going to make an order for costs today. The normal course will apply. If there is settlement, I think I have probably said enough.


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