THE IMMIGRATION ACTS. On 20 January 2006 On 07 March Before MR P R LANE (SENIOR IMMIGRATION JUDGE) SIR JEFFREY JAMES. Between.

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1 Asylum and Immigration Tribunal SY and Others (EEA regulation 10(1) dependancy alone insufficient) Sri Lanka [2006] THE IMMIGRATION ACTS Heard at Field House Promulgated On 20 January 2006 On 07 March 2006 Before MR P R LANE (SENIOR IMMIGRATION JUDGE) SIR JEFFREY JAMES Between Appellants and THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent Representation: For the Appellants For the Respondent: Miss E Power, Solicitor, of the Windsor and Merton Law Centre Mr M Montilla, Senior Home Office Presenting Officer LS (EEA Regulations 2000 Meaning of Dependant ) Sri Lanka [2005] UKAIT is not authority for the proposition that, once a person has shown that he is dependent on an EEA national or his spouse, the person concerned is entitled without more to an EEA family permit or a residence document, as the case may be. As the wording of regulation 10(1) of the Immigration (European Economic Area) Regulations 2000 makes plain, the respondent has a discretion whether to grant such a permit and that discretion is not incompatible with the underlying EEA legislation. DETERMINATION AND REASONS 1

2 1. The appellants are all citizens of Sri Lanka, born respectively on 3 March 1969, 11 September 1966, 23 August 1968 and 20 November They are all relatives of two citizens of the Netherlands, of Sri Lankan origin, to whom we shall refer as SM and JR. SM is working in the United Kingdom in a self-employed capacity and JR has been issued with a residence permit as his spouse. The first appellant is the sister of JR. The fourth appellant is married to the first appellant. The second and third appellants are married to sisters of JR. 2. On 23 December 2004 the appellants applied for residence documents to be issued to them under regulation 10 of the Immigration (European Economic Area) Regulations 2000 ( the 2000 Regulations ). On 22 March 2005 the respondent decided to refuse to issue the appellants with such documents. The respondent's notices of decision are in the same form in respect of each of the four appellants. The first appellant is described in her notice of decision as an adult aged sister of JR, whilst the second, third and fourth appellants are each described as an adult aged brother-in-law of JR. Each notice contains the statement that the respondent was satisfied that you have failed to demonstrate that you are generally dependent upon your EEA family member and the Secretary of State is not prepared to issue the confirmation that you seek. 3. The appellants appealed against these decisions to an Immigration Judge, Mr N. Froom, sitting at Hatton Cross, who by a determination promulgated on 6 October 2005 dismissed the appellants appeals. On 19 October 2005, reconsideration of the Immigration Judge s decision was ordered under section103a of the Nationality, Immigration and Asylum Act The grounds upon which reconsideration was ordered observe that the Immigration Judge, having found that each of the appellants was dependent upon JR, erred in law in deciding nevertheless to dismiss the appeals on the basis that the decision whether to issue a residence permit under regulation 10 was a discretionary one, and that none of the appellants merited the exercise of discretion in his or her favour. The grounds contend that, having found the appellants to be dependent on an EEA national or his spouse, that is to say, JR, the respondent s stated reason for refusing each of the applications was wrong and the Immigration Judge ought therefore to have found that residence documents should be issued to the appellants. The grounds cite LS (EEA regulations 2000 Meaning of Dependant ) Sri Lanka [2005] UKAIT as authority for the proposition that, once dependancy has been established as a matter of fact, the appeals fell to be allowed. 5. Regulation 10 of the 2000 Regulations reads as follows: 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 decisionmaker 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

3 (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 regulations 13 or 15. (3) Without prejudice to regulation 22, a decision-maker may revoke (or refuse to renew) a permit or 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) (b) (c) is dependent on the EEA national or his spouse; is living as part of the EEA national s household outside the United Kingdom; or was living as part of the EEA national s household before the EEA national came to the United Kingdom. (5) However, for those purposes EEA national does not include- (a) (b) an EEA national who is in the United Kingdom as a self-sufficient person, a retired person or a student; an EEA national who, when he is in the United Kingdom, will be a person referred to in sub-paragraph (a). 6. Although the appellants advisors and the Immigration Judge have referred from time to time in the course of these appeals to permits, it is relevant to observe that what each of the appellants sought, and were refused, was a residence document, which is defined in regulation 2 of the 2002 Regulations as follows: residence document means a document issued to a person who is not an EEA national, in accordance with regulations 10 or 15, as proof of the holder s right to residence in the United Kingdom. 7. Before the Immigration Judge, the respondent argued that the appellants appeals should be dismissed for three reasons: first, some or all of the appellants were not relatives of SM; secondly, at least some of the appellants were not dependent because they were themselves working; and thirdly, regulation 10 of the 2000 Regulations created a discretionary power and the exercise of that power in the present cases had been appropriate (paragraph 25 of the determination). The Immigration Judge found in favour of the appellants in respect of the first and 3

4 second issues but, as we have already observed, he found against them on the third. 8. At paragraph 19 of his determination, the Immigration Judge set out the facts found by him. Each of the appellants lived in a household comprising himself or herself, SM, JR and the children of JR and SM. All of the appellants were residing in the United Kingdom at the time when SM and JR exercised their Treaty rights in coming to the United Kingdom from the Netherlands in August The appellants are all failed asylum seekers. The Immigration Judge found that the first, third and fourth appellants earned enough to make relatively significant contributions to the household expenses, albeit that they are in low-paid employment. 9. In deciding whether the appellants were relatives, the Immigration Judge considered the determination of the Immigration Appeal Tribunal in PB and Others (Goa: EEA discretionary permit; interpretation) India [2005] UKIAT The Immigration Judge noted that the Tribunal in that case found that relative must be intended to have a wider meaning than family member (paragraph 9 of that determination). The Immigration Judge also observed that it was sufficient for a person to be a relative, either of the person exercising Treaty rights or of that person s spouse. In the present case, the appellants were related to JR. The Immigration Judge found that there can be no question that [the first appellant] qualifies as her sister. The other three appellants are JR s brothers-in-law. There is no requirement for a blood relationship. I would find that all the appellants are relatives for the purpose of [regulation] 10(4) (paragraph 21). 10. The Immigration Judge, at paragraph 22 of his determination, found that PB also assisted him in finding that dependancy for the purposes of the 2000 Regulations is a question of fact and there is no requirement that the dependancy be of necessity. The Immigration Judge found as a fact that the family comprising the appellants, SM and JR, lived on the basis of a pooled income and shared expenses but that the house in which they lived was provided by SM and JR, who had purchased the property before moving to the United Kingdom, with a view to providing a home large enough for all of them to reside in. Particularly bearing in mind the issue of accommodation, the Immigration Judge found that all the appellants are mutually dependent with each other and JR and SM. Although the Immigration Judge did not exclude an element of emotional dependancy, he noted that the evidence on that issue was not developed and I give most weight to the material dependancy. I find all the appellants are dependent. 11. No reply has been filed by the respondent, seeking to uphold the dismissal of the appeals on the basis that the Immigration Judge was wrong to find in favour of the appellants on the issues of relationship and dependancy. At paragraph 23 of the determination, the Immigration Judge turned to the issue of whether the exercise of discretion by the respondent not to issue permits had been correctly made. As we shall later explain, the Immigration Judge fell into error by assuming that the respondent, in the notices of decision, had in fact exercised a discretion under regulation 10 of the 2000 Regulations. In considering the issue of discretion, the Immigration Judge had regard to chapter 2 of the respondent's European Directorate Instructions Residence Documents (non-eea Family Members of EEA Nationals). 4

5 12. Paragraph 2.4 of those Instructions observes that regulation 10 of the 2000 Regulations covers more distant family members than the spouse, children and dependants in the ascending line of an EEA national or of his or her spouse (see regulation 6 ( family member )). Paragraph 2.4 gives guidance to the respondent's caseworkers on the practical operation of regulation 10. The Immigration Judge set out in his determination the following passage from chapter 2.4: When deciding whether it is appropriate in all the circumstances to issue a residence permit/document, caseworkers will need to assess whether refusing the family member would deter the EEA national from exercising his/her treaty rights or would create an effective obstacle to exercise of Treaty rights. Each case must be assessed on an individual basis but an example of where it might be appropriate to issue a residence permit/document would be if the family member were very elderly or incapacitated. In assessing such cases, it would be important to consider whether there were any relatives to care for them in their home country. Cases falling for refusal Where an applicant has produced evidence that they are financially dependent on the EEA national, (for instance they may be currently unemployed) caseworkers should consider whether there is any reason to suggest that the EEA national could not send money back to the third country national s home country. (authors emphases). In considering cases under Article 10 (sic) we would normally refuse those who have for example: - lived in a third country whilst the EEA national has resided in another Member State prior to entering the United Kingdom; - lived as part of the EEA national s household many years ago; - have their own family unit (unless there are sufficient compassionate circumstances). 14. Having set out those extracts from chapter 2.4 of the EDI, the Immigration Judge concluded as follows: 24. PB India, when discussing [regulation] 10(4)(c) also considers the general approach to interpreting the Regulations. At paragraph 11 the Tribunal stated, The purpose of the Regulations we are considering is to enable a qualified person that is to say, an EU national exercising Treaty rights to exercise his rights freely, without being hindered or discouraged by having to leave family members 5

6 behind when he exercises his rights. I do not agree with Miss Power [the appellants solicitor] that the Tribunal were there solely concerned with 10(4)(c). The authors of Freedom of Movement of Persons in the Enlarged European Union, first edition, suggest a similar approach. For example, at , they note the ECJ s consideration of whether exclusion would constitute an obstacle to free movement in Baumbast C-413/ On the facts of this case, all the appellants were already residing in the UK, when SM and JR moved here in exercise of Treaty rights. JR had lost touch with SA and other family members for many years after leaving Sri Lanka. SM and JR moved as a family with their children, who had been residing with them in the Netherlands, although [...] had gone ahead. In no sense can the decision be considered as an obstacle to that exercise of free movement. JR and SM have welcomed JR's extended family into their home but that occurred extraneously to the exercise of Treaty rights. In fact it was only made possible by the exercise of Treaty rights by JR and SM. 26. I have balanced all the circumstances, including the dependancy. However, I note [the first and fourth appellants] have their own family unit. [The second and third appellants] are temporarily separated from their wives. The appellants are all relatively young and have no health problems. I do not consider the present situation is appropriate for a positive exercise of discretion and I dismiss the appeals. 15. For the appellants, Miss Power s primary submission was essentially as follows. Once the Immigration Judge had found as a fact that the appellants were relatives of the spouse of an EEA national and that they were dependent upon that person, or the EEA national, the appeal fell to be allowed without more, and the Immigration Judge was accordingly wrong in law to rely upon a discretion that does not in reality exist. Both in the grounds accompanying the application for reconsideration and at the hearing before the Tribunal on 20 January 2006, Miss Power sought to rely upon the reported determination of the Tribunal in LS, which was notified on 29 September 2005 (the date on which the Immigration Judge heard the appellants appeals). The Tribunal in LS considered the question of whether dependancy for the purposes of regulation 10 of the 2000 Regulations required a finding of dependancy of necessity. At paragraphs 6 and 7 of its determination, the Tribunal found as follows: 6. Even if dependancy of itself be required, it would in our view be arguable that it was satisfied in this case: it was because British legislation prevented the appellant from working that he had to rely on the sponsor. However, the only authority to which we were referred by either side as to the meaning of 6

7 dependant in the European legislation was (by Mr Mukherjee) Lebon (ECJ case 316/85,) judgment 18 June 1987). Lebon dealt not with freedom of movement, but with entitlement to benefits under regulation 10 of Regulation 1612/68: however, 1612/68 was the foundation for our 2000 Regulations... There is in our view no reason to interpret dependent in different ways for the purposes of the same piece of European legislation. What Lebon decided, on the point in issue (see ruling 2) was this: The status of dependent member of a workers family... is the result of a factual situation, namely the provision of support by the worker, without there being any need to determine the reasons for recourse to the worker s support. 7. While strictly nothing we say on this point is necessary to our decision, if the withdrawal of permission to work meant that the appellant was on any conceivable test dependent on the sponsor by the date of the decision under appeal, we have to say that in our view Lebon means that, if a claimant is at the date of the decision dependent on a European Union citizen exercising Treaty rights here as an ordinary matter of fact (and clearly financial dependancy is what is meant here), then there is no room for doubt or for going into the reasons for the dependancy. It follows that this appeal must be allowed. 16. We do not consider that the last sentence of paragraph 7 of the Tribunal s determination in LS can properly be said to be support for the proposition that, once dependency is found, the discretionary power in the decision-maker conferred by the opening words of regulation 10(1) must be disregarded. Miss Power, who was the instructing solicitor for the appellant in LS, told us that this had, in fact, been the thrust of the skeleton argument that had been put before the Tribunal in LS. That may be so but for whatever reason the Tribunal in that case did not have the benefit of hearing argument on the matter. Whatever may have been the respondent's stance in LS, Mr Montilla, who appeared for the respondent before us, vigorously argued that regulation 10(1) could not be given such an interpretation. 17. This Tribunal has no doubt that, as a matter of statutory construction, the opening words of regulation 10(1) mean what they say. If a person satisfies any of the three conditions specified in regulation 10(4), the decision-maker, which, for present purposes, means the Secretary of State (see regulation 2 (1)) may issue that person with the requisite document if in all the circumstances it appears to the decision-maker appropriate to do so. If it does not appear appropriate, then (subject to the Wednesbury principle), the decision-maker does not have to issue the document. As is plain from the determination in PB, a clear distinction is drawn in the 2000 Regulations between a family member, who is entitled to the relevant document, and those who must rely upon regulation 10. In PB, the decision-maker 7

8 had erred in failing to consider the position by reference to regulation 10(4)(c), as a person who had been living as part of the EEA national s household before the latter came to the United Kingdom: It is however common ground that the Entry Clearance Officer ought to have considered whether [the appellants] fall within Regulations 10(4)(c) and, if so, ought further to have considered whether to exercise his discretion in their favour (paragraph 14 of the determination). The Tribunal in PB was, accordingly, in no doubt that satisfaction of regulation 10(4) was a necessary but, nevertheless, not a sufficient condition to succeed under that regulation. 18. Miss Power s alternative submission was that, regardless of what the wording of regulation 10(1) might be, the underlying EEA legislation confers no discretion upon the decision-maker to refuse to issue a permit or document to a person who satisfies regulation 10(4). 19. It is common ground that the 2000 Regulations are intended to give effect to relevant provisions of Regulation (EEC No. 1612/68) of the Council of 15 October 1968 on Freedom of Movement for Workers within the Community ( the EEC Regulation ). The Preamble to the EEC Regulation makes it plain that the purpose is that the freedom of movement for workers should be secured within the Community ; that such freedom of movement constitutes a fundamental right of workers and their families, and that mobility of labour within the Community must be one of the means by which the worker is guaranteed the possibility of improving his living and working conditions and promoting his social advancement, while helping to satisfy the requirements of the economies of the Member States ; and that that freedom of movement, in order that it may be exercised, requires that obstacles to the mobility of workers shall be eliminated, in particular as regards the worker s rights to be joined by his family and the conditions for the integration of that family into the host country. 20. Article 10 of the EEC Regulation reads as follows: Article10 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 dependant (b) dependent relatives in the ascending line of the worker and his spouse. 8

9 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. 3. For the purposes of paragraphs 1 and 2, the worker must have available for his family housing considered as normal for native workers in the region where he is employed; this provision must, however must not give rise to discrimination between national workers and workers from the other member states. 21. Miss Power submitted that the word facilitate in Article 10(2) of the EEC Regulation did not entitle the United Kingdom government to confer upon itself a discretion in respect of the admission of members of the family not coming within Article 10(1). Relying upon the dictionary definition of facilitate as to make easy, she contended that, once a person showed himself to be a member of the family of the worker and to be dependent on that worker or living under the same roof in the country whence he came, there is a legal presumption that that family member shall be admitted to the United Kingdom. 22. The Tribunal does not find that paragraph 2 of Article 10 of the EEC Regulation 1612/68 is incompatible with regulation 10(1) of the 2000 Regulations so as to entitle us to disregard the discretionary aspect of Regulation 10(1). On any reading, paragraph 2 of Article 10 of the EEC Regulation is not conferring upon the member of the family any right of admission to a Member State. A clear distinction is being drawn between those falling within paragraph 1 (who have such a right) and those having to rely upon paragraph 2. The existence of the discretion in regulation 10(1) of the 2000 Regulations is, we find, perfectly compatible with the underlying EEC Regulation. 23. As we have already observed, the respondent has, through its European Directorate, produced instructions to its caseworkers on how to exercise the discretion in regulation 10(1). Immediately before the paragraph from the EDI quoted by the Immigration Judge (see paragraph 12 above), there is to be found the following statement: The Directives (sic) refer to facilitating or favouring the admission of any member of the family who meets any of the above conditions providing that a person falls within one of these categories, you may issue a residence permit or residence document if in all the circumstances it applies appropriate to do so (authors emphases). The reference to the above conditions is a reference to those contained in regulation 10(4)(a) to (c). 24. As is plain from the paragraph which follows the one just quoted, the United Kingdom government has seen fit to give effect to the requirement upon it to facilitate admission by focussing on the underlying purpose of the EEA Regulation, 9

10 as set out in its Preamble. The EDI also emphasises that each case must be assessed on an individual basis, although examples are given of cases where the decision maker would normally refuse an application. Each of the three examples given is one where, in reality, the EEA national is unlikely to be able to show that his exercise, or continued exercise, of his rights as a worker is connected with the presence of the family member concerned. For our part, the Tribunal is satisfied that the wording of regulation 10(1), and that of chapter 2.4 of the EDI, is compatible with the provisions of Article 10 of the EEC Regulation. In any event, it is plainly not the case that an appellant is entitled to have his appeal allowed, regardless of regulation 10(1) of the 2000 Regulations, provided only that he has satisfied regulation 10(4). 25. Miss Power submitted that the issuing of a residence document was, strictly speaking, immaterial in that the appellants had an underling EEC right to be in the United Kingdom. That submission is, we find, erroneous. As we have seen, a distinction is drawn between paragraph 1 and paragraph 2 of Article 10 of the EEC Regulation. A person falling within paragraph 2 has no right of entry to the United Kingdom unless and until the United Kingdom government has facilitated his admission to this country. That point is clearly brought out by regulation 10(2) of the 2000 Regulations, which provide that a person is to be treated as if he were the family member of an EEA national only where a permit or document has been issued under paragraph (1). 26. As Mr Montilla conceded at the reconsideration hearing, the Immigration Judge in the present case erred in law in that he wrongly assumed that the respondent had exercised his discretion not to issue the residence documents. As is plain from each of the notices of decision, the respondent never turned his mind to the question of whether the appellants were entitled to the positive exercise of his discretionary power under regulation 10(1). This is because the respondent took the view that each of the appellants had failed to demonstrate that he or she was genuinely dependant upon JR. It might have been possible in the notice of decision for the respondent to have stated that, regardless of that issue, he would not have exercised his discretion in favour of the appellants. However, that is not what he did and the Tribunal can see the logic in refusing to make what at that stage the respondent (albeit wrongly, as it turns out) regarded as a purely hypothetical decision. 27. The Immigration Judge was, accordingly, wrong to assume that an appeal lay to him in respect of a decision under regulation 10(1) that had not been made. The effect of the Immigration Judge s findings on dependancy (which have not been challenged by the respondent) was that the respondent needed to consider whether to exercise his discretion under regulation 10(1) in favour of the appellants. The fact that the Immigration Judge found that, as far as he was concerned, the discretion should not be exercised did not entitle him to dismiss the appeals. The decisions, as contained in the relevant notices, were incomplete. The Immigration Judge, ought, accordingly, to have found that, in the light of his findings on dependancy, those decisions were not in accordance with the law and remained before the Secretary of State to reach decisions under regulation 10(1). That discretionary decision cannot be taken for the first time by the Tribunal, if it has not been made by the respondent. 10

11 28. The Immigration Judge made a material error of law and we accordingly substitute for his decision, dismissing the appellants appeals, a decision allowing those appeals to the extent that the respondent s decisions are not in accordance with the law and the applications of the appellants accordingly remain outstanding before him. Signed Date: 3 March 2006 P R Lane Senior Immigration Judge 11