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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> DA (EEA, revocation of residence document) Algeria [2006] UKAIT 00027 (09 March 2006) URL: https://www.bailii.org/uk/cases/UKIAT/2006/00027.html Cite as: [2006] UKAIT 00027, [2006] UKAIT 27 |
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DA (EEA – revocation of residence document) Algeria
[2006] UKAIT 00027
Date of hearing: 17 February 2006
Date Determination notified: 09 March 2006
DA |
APPELLANT |
and |
|
Secretary of State for the Home Department | RESPONDENT |
Where a qualified person within the meaning of the Immigration (European Economic Area) Regulations 2000 leaves the United Kingdom, it is not inconsistent with relevant EU law for the United Kingdom to make provision for revocation of the residence document of the family member of the qualified person, as set out in Regulation 22(2)(b)(ii).
the appeal to enable the appellant to obtain representation and advised him of the possibility of getting representation from the Refugee Legal Centre or the IAS. We also directed the Secretary of State to produce a skeleton argument directed to the points raised in the appellant's grounds of appeal and in particular to deal with the authorities cited therein. We subsequently received a skeleton argument with attached authorities. We are grateful to the Secretary of State for providing these.
"Article 2
1. Member States shall grant the nationals referred to in Article 1 the right to leave their territory in order to take up activities as employed persons and to pursue such activities in the territory of another Member State. Such rights shall be exercised simply on production of a valid identity card or passport. Members of the family shall enjoy the same right as the national on whom they are dependent.
…
Article 4
…
2. As proof of the right of residence, a document entitled "Residence Permit for a National of a Member State of the EEC" shall be issued. This document must include a statement that it has been issued pursuant to Regulation (EEC) No.1612/68 and to the measures taken by the Member States for the implementation of the present Directive. The text of such statement is given in the Annex to this Directive.
…
4. A member of the family who is not a national of a Member State shall be issued with a residence document which shall have the same validity as that issued to the worker on whom he is dependent.
Article 6
1. The residence permit:
(a) must be valid throughout the territory of the Member State which issued it;
(b) must be valid for at least five years from the date of issue and be automatically renewable.
2. Breaks in residence not exceeding six consecutive months and absence on military service shall not affect the validity of a residence permit.
…
Article 7
1. A valid residence permit may not be withdrawn from a worker solely on the grounds that he is no longer in employment, either because he is temporarily incapable of work as a result of illness or accident, or because
he is involuntarily unemployed, this being confirmed by the competent employment office.
…
Article 10
Member States shall not derogate from the provisions of this Directive save on grounds of public policy, public security or public health."
"Article 10
1. The following shall, irrespective of their nationality, have the right to install themselves with a worker who is a national of one Member State and who is employed in the territory of another Member State:
(a) his spouse and their descendants who are under the age of 21 years or are dependants;
(b) dependent relatives in the ascending line of the worker and his spouse.
2. Member states shall facilitate the admission of any member of the family not coming within the provisions of paragraph 1 if dependent on the worker referred to above or living under his roof in the country whence he comes."
"10. Dependants and members of the household of EEA nationals
(1) If a person satisfies any of the conditions in paragraph (4), and if in all the circumstances it appears to the decision maker appropriate to do so, the decision maker may issue to that person an EEA family permit, a residence permit or a residence document (as the case may be).
(2) Where a permit or document has been issued under paragraph (1), these Regulations apply to the holder of the permit or document as if he were the family member of an EEA national and the permit or document had been issued to him under Regulation 13 or 15.
(3) Without prejudice to Regulation 22, a decision maker may revoke (or refuse to renew) a permit or a document issued under paragraph (1) if he decides that the holder no longer satisfies any of the conditions in paragraph (4).
(4) The conditions are that the person is a relative of an EEA national or his spouse and -
(a) is dependent on the EEA national or his spouse;
(b) is living as part of the EEA national's household outside the United Kingdom; or
(c) was living as part of the EEA national's household before the EEA national came to the United Kingdom.
(5) However, for these purposes "EEA national" does not include -
(a) an EEA national who is in the United Kingdom as a self-sufficient person, a retired person or a student;
(b) an EEA national who, when he is in the United Kingdom, will be a person referred to in sub-paragraph (a).
13. Issue of EEA Family Permit
(1) An Entry Clearance Officer must issue an EEA family permit, free of charge, to a person who applies for one if he is a family member of -
(a) a qualified person; …
(2) But paragraph (1) does not apply if -
(a) the applicant;
(b) the person whose family member he is,
falls to be excluded from the United Kingdom on grounds of public policy, public security or public health.
…
14. Right of Residence
(1) A qualified person is entitled to reside in the United Kingdom without the requirement for leave to remain under the 1971 Act, for as long as he remains a qualified person.
(2) A family member of a qualified person is entitled to reside in the United Kingdom, without the requirement for such leave, for as long as he remains the family member of a qualified person."
solely because they are temporarily incapable of work as a result of illness or accident or involuntary unemployment.
It is also relevant to quote from Regulation 22.
22. Refusal to issue or renew residence permit or residence document and revocation of residence permit, residence document or EEA family permit.
(1) The Secretary of State may refuse to issue a residence permit or residence document (as the case may be) if the refusal is justified on grounds of public policy, public security or public health.
(2) The Secretary of State may revoke, or refuse to renew, a residence permit or residence document if –
(a) the revocation or refusal is justified on grounds of public policy, public security or public health; or
(b) the person to whom the residence permit or residence document was issued -
(i) is not, or has ceased to be, a qualified person;
(ii) is not, or has ceased to be, the family member of the qualified person."
properly reflect the relevant Community law in particular in the provision set out there permitting revocation of a permit or document if the relevant conditions are no longer satisfied. The relevant provisions in particular are to be found at Regulation 22 of the Immigration Regulations which we have set out above. This is clearly not a case where it has been sought to justify the revocation on grounds of public policy, public security or public health. The decision is founded on Regulation 22(2)(b)(ii) in that it is said that the appellant is not a family member of a qualified person, since, though it is not disputed, we think, that he remains married to his wife, it is said that she is no longer a qualified person within the definition in Regulation 5 since she is not an EEA national who is in the United Kingdom as a worker or any in other of the capacities identified in Regulation 5(1).
decision was dismissed. An application for judicial review was granted and the Secretary of State appealed to the Court of Appeal which allowed his appeal. This was, of course, before the days of the Immigration Regulations. The Court of Appeal considered the wording of Regulation 1612/68 and noted that in the preamble there is reference to "the worker's right to be joined by his family" rather than "the family's right to join the worker". It was said, at page 65 in the Immigration Appeal Reports, that the right given to the spouse was not a right to come on their own or to come independently of the other spouse but a right to install themselves with the worker who, and here the Court of Appeal emphasised the tense involved, "is employed in the territory of another member state". This wording is taken from Article 10 of the Regulations. The court went on to say that one could not simply look at the preamble to the Regulations which was in general terms and spell out a broad independent right in the worker concerned, since the Regulations themselves more specifically showed that the right was a limited one and limited in terms of the Article which conferred the right. The point is also made on page 65 that a number of provisions of European law establishing rights for EEC nationals and rights in the national in respect of their dependants, only create rights in the dependant himself where they are derivative rights, depending on the exercise by the European national of his or her own rights, except when the legislation itself specifically confers independent rights. Examples of that are given at page 66, but it is clear that the case before the Court of Appeal did not involve the specific conferring of independent rights. This led the court to the conclusion that any right given to someone other than an EEC national is to be found specifically in the Regulations and the extent of that right was very carefully spelled out.
Signed Date
D K Allen
Senior Immigration Judge