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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: http://www.bailii.org/uk/cases/UKIAT/2008/00069.html Cite as: [2008] UKAIT 00069, [2008] UKAIT 69, [2009] Imm AR 38 |
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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 the Home Department | RESPONDENT |
For the appellant: Mr J Rene (26 October 2007) and Mr C Lam (19 May 2008) instructed by Messrs David Tang & Co Solicitors
For the 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 in the 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. Where the 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 that the 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 to the 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 that the 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 in the United Kingdom as-
…
(a) a worker;
…"
" (1) If the 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) if the 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 to the 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) If the 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 leaving the 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 to the United Kingdom, the United Kingdom national would, if he were an EEA national, be a qualified person; and
(d) if the 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 that the applicant is such a family member
…
(2) On receipt of an application under paragraph (1) and (2) and the 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 in the United Kingdom for so long as he remains a qualified person.
2) A family member of a qualified person residing in the 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 retained the 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 in the 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 to the 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 in the host Member State and satisfies a condition in Article 7(1)(a), (b) or (c) and
- is then residing in the host Member State with the Union citizen as his/her spouse
Irrespective of when or where their marriage took place or when or how the non-EU national entered the host Member State?"
"1. Directive 2004/38/EC of the 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' means the 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 is the 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 that the 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 that the 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 with the 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 2004/38 the 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, where the 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 entered the 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, in the 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 to the 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. From the 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 where the 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 if the 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 to the 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 to the 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 in the 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)
"For the residence card to be issued, Member States shall require presentation of the following documents:
(a) a valid passport;
(b) a document attesting to the 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 for the 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 for cases of family members in the UK illegally or unlawfully
" 95. From the 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 where the 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 if the 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 to the place where the marriage of the Union citizen and the national of a non-member country is solemnised."
Existing case law
"49… Regulation (EEC) No 1612/68 covers only freedom of movement within the 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 in the 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 of the 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 that the 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 undermine the 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
UK case law
"If the 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…"
"Take the 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