Neutral Citation Number: [2014] EWHC 1396 (Admin)

Case No: CO/300/2014
JR/5746/2013/UTIAC
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 15 May 2014

Before :

THE HONOURABLE MRS JUSTICE LANG DBE
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Between :

	THE QUEEN
on the application of 

(1)	MARK BENJAMIN
(2)	MARGARET BENJAMIN	

Claimants	
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	SECRETARY OF STATE FOR THE HOME DEPARTMENT	Defendant	

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The First Claimant appeared in person
The Second Claimant did not appear
Susan Chan (instructed by The Treasury Solicitor) for the Defendant

Hearing dates: 30th April and 1st May 2014
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Judgment

Mrs Justice Lang: 
1.	The Claimants seek judicial review of the Defendant’s refusal to grant an EEA family permit and entry clearance to enable the Second Claimant to enter and reside in the United Kingdom (“UK”) with her husband, the First Claimant, and their three children. 
Facts
2.	The First Claimant is a UK citizen, born in London, who, after qualifying as a barrister, moved to France in 2002, and pursued further degrees in Mathematics (2002 – 2006) and Computing (2007 – 2008). He worked for two months as a lorry driver in the summer of 2007. Since 2008, he has been self-employed as a computer programmer, also offering legal services. He registered with the French authorities as a self-employed business in Information Technology in May 2008 and as a “self-entrepreneur” in January 2010. 
3.	In 2006 he married the Second Claimant, who is a citizen of Kenya. They returned to live together in France and enjoyed family life there. Their son, I(B), was born in 2006 in France; V was born in 2008 in France and M was born in 2011 in Florida. All three children are British citizens. 
4.	In 2009, both Claimants obtained a ‘carte de sejour’ confirming their permanent right of residence in France, pursuant to Directive 2004/38/EC, Art. 16, as implemented in French domestic law. They are both entitled to work in France. They receive the French equivalents of child benefit, disability living allowance for their son I(B) who is disabled, and tax credits for low earners.
5.	Sadly their son I(B) is severely autistic and epileptic and in September 2012, the First Claimant moved with him to London, so that he could receive an appropriate specialist education, which is not available in France. The First Claimant receives child benefit, disability living allowance, housing benefit and tax credits in the UK. The other children have divided their time between the UK and France. The Second Claimant entered the UK for brief visits on tourist visas in 2012 and 2013. Since May 2013 the Defendant has refused to grant her further visit visas, on the grounds that, because of the presence of her husband and children in the UK, she is likely to overstay. She has never breached immigration controls in the past. There is no suggestion from the Defendant that her presence in the UK would be undesirable because of her conduct or character. Nor is there any suggestion that the marriage is not genuine and subsisting.
6.	It has been disruptive and difficult for the Claimants to maintain family life, and care for their children (in particular their challenging son I(B)), whilst living in separate countries. Only the First Claimant can bring the children to and from France. The Second Claimant has had to re-locate from Alpes-Maritime to unsatisfactory accommodation in Calais so as to be as close as possible to the UK border. Their problems are exacerbated by the fact that the Second Claimant is due to give birth to their fourth child in May 2014 (who will presumably also acquire British citizenship). 

Judicial review claims
7.	The First Claimant wishes to exercise what he claims are his rights under EU law and UK domestic law to return to live in the UK with his third country national spouse. The Defendant has refused entry to the Second Claimant under the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations), regs. 7 and 9, on the ground that the First Claimant has failed to establish that he has been exercising EU Treaty rights in France, by being employed or self-employed. 
8.	In claim no. CO/300/2014, the Claimants challenged the Defendant’s refusal to grant the Second Claimant entry clearance at Calais, on 27th December 2013. The claim was issued in the Upper Tribunal but it was transferred to the High Court on 14th January 2014 because the application for a declaration of incompatibility took it outside the jurisdiction of the Upper Tribunal. It was expedited on 17th March 2014 because of the Claimants’ acute family difficulties. Permission was granted by me at an oral hearing on 28th March 2014, but I refused the Claimants’ application for an interim remedy, enabling the Second Claimant to enter the UK. 
9.	At the expedited substantive hearing before me on 30th April 2014, it emerged that the Claimants had renewed their application for permission in an earlier claim for judicial review which they had issued in the Upper Tribunal on 16th December 2013 (JR/5746/2013). In that claim, they challenged the Defendant’s refusal to grant an EEA family permit, on 15th November 2013, and her refusal to grant entry clearance at Calais on 15th December 2013. Their applications for an interim remedy and for permission were refused on the papers. On 26th February 2014, the Claimants applied for permission to appeal to the Court of Appeal against the refusal of an interim order. The Claimants renewed their application for permission to apply for judicial review, and a hearing has been listed in the Upper Tribunal on 18th June 2014. As this judicial review claim raises the same issues as the claim before me, both parties consented to my proposal that it should be transferred to the High Court to be determined by me, sitting as a Judge of the Upper Tribunal, together with claim CO/300/2014, to avoid duplication and a waste of court time and costs. 
Exercising the alternative statutory right of appeal 
10.	The Defendant submitted that this Court should dismiss both judicial review claims on the ground that the Claimants should pursue their statutory remedy by way of appeal, relying upon R (Lim) v Secretary of State for the Home Department [2008] INLR 60. There is an out-of-country right of appeal against the refusal of the EEA family permit and the refusal of entry clearance.
11.	After much deliberation, I have come to the conclusion that I should accede to the Defendant’s submission, but that the judicial review claims should be stayed pending the final determination of the statutory appeal, to preserve the Claimants’ claim for damages, if it arises. My reasons are as follows. 
12.	I became aware for the first time at the hearing that, on 9th December 2013, the Second Claimant lodged a notice of appeal to the First-tier Tribunal (FTT) against the Defendant’s refusal to issue an EEA family permit in November 2013. This appeal is awaiting a hearing date. The Claimants have not applied for it to be expedited, but in my view they have valid grounds upon which to seek expedition, and this will overcome the disadvantage of further delay in a resolution of the Claimants’ case. Although it is an out of country appeal, as the First Claimant is a British citizen he will be able to attend the appeal hearing, give evidence and make submissions.
13.	Substantially more material has been disclosed now by the First Claimant than was available when the Defendant made her decisions in November and December 2013. The FTT will be able to make its decision on all the evidence presented by the First Claimant at the hearing. The disadvantage of the judicial review claims is that the court is limited to considering whether the Defendant’s decisions were lawful on the material before her officers at the relevant time.
14.	In my view, there is unlikely to be a just resolution of the issues in this case without a judicial hearing at which the First Claimant gives evidence, is cross-examined, and formal findings of fact are made about the extent to which the First Claimant has or has not been working in France. This can only take place in the forum of a statutory appeal, not in a judicial review hearing. 
15.	I have read the note of the interviews with the Claimants which were conducted at Calais on 27th December 2013 and the First Claimant’s transcript of the interview from his covert recording. I have considered the First Claimant’s witness statements and the supporting documentation. As the First Claimant represented himself during the hearing, I have heard his account about his activities in France, in the course of his submissions. Taken as a whole, there is some evidence of work but its extent and duration is very unclear. There is a surprising lack of documentary support for his contention that he has been a self-employed IT and legal consultant. There are no invoices or contracts, other than a 3 month training contract with Google, produced during the hearing. The tax returns disclosed do not demonstrate that he was receiving income from work and tax returns after the year 2009/2010 and bank statements are missing. The First Claimant expresses himself in generalities. Details only emerge piecemeal, and sometimes conflict with the impression previously given by him. To give one example, it was only in the final hour of the judicial review hearing that it became apparent to me that between February and August 2012 the First Claimant was living in Miami, buying and renovating a house. Until that time, I was under the impression that he had been in France, caring for I(B), and to some extent working (there was evidence that his App had been released on Amazon.com in August 2012). I wish to make it clear that I am not making allegations of dishonesty against the First Claimant and I consider it possible that he will be able to establish sufficient economic activity to satisfy reg. 9, although he has not yet satisfied the UKBA of this. I have, however, found his history frustratingly elusive.
16.	At this hearing, the First Claimant also sought to argue that he was exercising his EU rights to reside in France as a self-sufficient person because he was in receipt of a weekly allowance from his father, in the sum of £150 to £200 per week. This raised the question whether, for the purposes of Art. 7(1)(b) of Directive 2004/38, there were “sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State”. He produced some documentation to demonstrate how self-sufficiency was assessed by the French authorities but there was insufficient evidence to show whether his father’s allowance met the self-sufficiency level for his family of 5; whether the family’s dependence upon French state benefits meant that he was “a burden on the social assistance system”; and whether the family had comprehensive sickness insurance cover. 
17.	At an appeal, the FTT will be able to hear formal evidence from the First Claimant and make findings of fact which can then form the basis for a proper analysis of the Claimants’ legal rights. The FTT can then decide upon the merits of the Claimants’ claim. In contrast, in the judicial review claims, it is not appropriate for the court to hear evidence, make formal findings of fact and decide upon the merits. The most that the Claimants can hope for in the judicial review claims is an order quashing the Home Office’s earlier refusals on the basis that it applied the wrong legal tests, and requiring it to re-consider the applications according to law. Upon any re-consideration, I fear that Home Office officers will struggle to get to the bottom of the First Claimant’s working history, just as they did in December 2013. In the unusual circumstances of this case, I consider that justice can best be served by investigation of the facts in the more formal tribunal setting. 
18.	The First Claimant has made convincing submissions in support of his case that, on the facts as he presents them, the Defendant has unlawfully restricted the exercise of his EU Treaty rights. However, I do not accept the First Claimant’s submission that it is unnecessary to determine whether or not he was working in France before he returned to the UK. 
19.	In their applications to the Defendant, the Claimants relied upon the principle established in the case of R v Immigration Appeal Tribunal and Surinder Singh ex parte Secretary of State for the Home Department Case C-370/90, in which the ECJ held that a national of a member state who resided and worked in another member state, in exercise of his EU Treaty rights, was entitled, upon return to his own country, to exercise EU rights of entry for his family members, no less favourable than those enjoyed by the family members of other EU nationals. To rely upon the Surinder Singh principle the EU national must establish that he has been working in exercise of EU rights in the host country. The Defendant does not accept that the First Claimant has been working in exercise of his EU rights in France. That issue is in dispute in this case. 
20.	In the light of the decision of the Upper Tribunal in OB v. Secretary of State for the Home Department [2010] UKUT 420, it may well be that the Home Office erroneously applied reg. 9 as if the EU member had to show that he was working in the host state continuously and/or in the period immediately prior to entering the UK. The Upper Tribunal in OB held that, although Surinder Singh did not address the period of time between employment in the host country and the return to the state of origin, the case law did establish the principle that the right of entry should not be restrictively interpreted and Community law must be interpreted sufficiently broadly to promote the objective of ensuring protection for the family life of nationals of member states. The same principles should apply to national law implementing Community law. There was no requirement that employment in the host state had to be established immediately before the return to the state or origin. It would be a matter of assessment in the individual case. On the facts of OB, the 13 month period during which the Appellant was not working in the host state did not break the link between the Community right to reside and work in Ireland and the right to return to the UK in accordance with Community law. In the Claimants’ case, Ms Eley, Senior Border Force Officer, said that she refused the application because she was not satisfied that the First Claimant had been exercising his Treaty rights either in September 2012, when he returned to the UK, or prior to December 2013 when he made the application. I consider that this approach is consistent with a literal reading of reg. 9, but that it may well be an unduly restrictive interpretation of the EU Treaty rights. I agree with Ms Chan that a declaration of incompatibility would not be required, as reg. 9 can be interpreted broadly to be consistent with EU law, if necessary. However, a fact-finding exercise is still required under the broader interpretation which the Upper Tribunal adopted. 
21.	A further issue which arises in this case is the status of a self-employed person who has a profession or business but is earning a very low income. According to the First Claimant, much of the work he did in designing Apps and computer programmes was speculative and unpaid, in the hope that it would lead to remuneration at a later date. He was not successful in obtaining much paid work. Sometimes he was paid in kind rather than in cash. The First Claimant relied upon the ECJ judgment in Levin v Staatssecretaris van Justitie Case 53/81 in which the Court held that a person who pursues effective and genuine employment is exercising Treaty rights, even though his income may be lower than subsistence level or he supplements his income from other sources. I accept that, in principle, the First Claimant is entitled to rely upon his unpaid or low paid work, and his unsuccessful efforts to obtain work, as part of the overall assessment of whether or not he was genuinely self-employed in France. However, this still requires findings of fact to be made about the extent of such work, and whether he was genuinely self-employed. 
22.	The Claimant relies upon the judgment of the CJEU Grand Chamber in O & B v Minister voor Immigratie, Integratie en Asiel C-456/12 in support of his submission that there is no requirement for an EU citizen to establish that he has been working in the host state once he has acquired permanent rights of residence pursuant to Art. 16 of Directive 2004/38. I agree that this judgment reflects a significant development of the rights of EU nationals who are returning from a host state to their state of origin with third country national family members. It focuses upon the right of residence in other EU states, pursuant to Article 21(1) TFEU, rather than the right to work, and seeks to give effect to Article 21(1) TFEU by ensuring that the EU national who returns to his state of origin can “continue the family life which he created or strengthened in the host Member State” if he genuinely resided there. Paragraph 55 states:
“55…the effectiveness of Article 21(1) TFEU requires that the Union citizen may continue, on returning to the Member State of which he is a national, the family life which he led in the host Member State, if he and the family member concerned who is a third-country national have been granted a permanent right of residence in the host Member State pursuant to Article 16(1) and (2) of Directive 2004/38.”
23.	The Claimants submit that they have acquired permanent residence within the meaning of Article 16 of Directive 2004/38. Article 16(1) provides that “Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there”. They are no longer subject to the qualifying conditions in Article 7, so it is not necessary to establish that they are working or are self-sufficient. However, the right of permanent residence under Art. 16 can only be acquired by those who have fulfilled one or more of the qualifying conditions in Article 7 during the five year period of continuous residence otherwise they would not have been residing in the host state “legally”. 
24.	The Defendant does not accept that, because the Claimants have cartes de sejour confirming their permanent right of residence in France, that they necessarily do have Article 16 rights. I will return later to the issue of recognition of residence cards issued by other Member States. Even assuming that the Defendant is entitled not to recognise the decision made by the French authorities, she is still obliged to make her own assessment, on the evidence, as to whether the First Claimant has “ resided legally for a continuous period of five years” in France and thus gained the right of permanent residence there. The First Claimant could have obtained the right of permanent residence before the issue of the carte de sejour for permanent residents – the card is confirmation of the status, not a grant of status. The qualifying conditions for lawful residence in Art. 7(1) are not limited to work. Self-sufficiency is a qualifying condition, which could potentially cover the period when the First Claimant was wholly supported by his father and before he had children and so began to claim benefits. Education can be a qualifying condition, and it could potentially cover the First Claimant’s period of study at Marseille University. These issues all require findings of fact to be made by the FTT before a conclusion can be reached as to whether the Claimants have acquired a permanent right of residence under Article 16. 
25.	During the hearing I raised with the parties my concern that the separation of the British children from their mother, and the inability of the family to live together in the country where I(B) could also receive appropriate support for his autism, engaged Art. 8 ECHR and the Defendant’s duty to have regard to the need to safeguard and promote the welfare of children under section 55 Borders, Citizenship and Immigration Act 2009. There is no indication in the material before me that the Defendant considered Art. 8 or section 55 when making her decisions. These are issues which the FTT can determine, on the merits, unlike a court hearing a judicial review claim. If the Claimant wishes to rely on Art. 8 or section 55 he should inform the FTT in writing in advance of the hearing. As discussed at the hearing, the First Claimant could also apply for his wife to be admitted pursuant to the Immigration Rules Appendix FM. 
Article 5 Directive 2004/38/EC
26.	The Claimants submit that the Defendant should have granted the Second Claimant leave to enter the UK in December 2013 for a period of up to 3 months, pursuant to Articles 5 and 10 Directive 2004/38/EC upon production of her passport, and her French residence card. The UK does not currently accept French residence cards under reg. 11 of the 2006 Regulations
27.	The EU Commission wrote to the First Claimant on 2nd April 2014 informing him of the progress of the infringement proceedings commenced in June 2011 for the UK’s failure to transpose the Article 5 of the Directive properly. The letter stated that the Commission hoped “to conclude the process shortly”. 
28.	The Commission also informed the First Claimant of the progress of Case C-202/13 McCarthy v Secretary of State for the Home Department in which the High Court referred to the CJEU the question whether the UK’s approach to residence cards issued by other member states was lawful, having regard to the security concerns of the Defendant, Article 35 of the Directive and the terms of the Frontiers Protocol (Protocol No. 20 to the TFEU). The hearing before the Grand Chamber took place on 4th March 2014, and the judgment “could be expected to be rendered after the summer break”. 
29.	 I have not had the benefit of the detailed argument presented to the court in McCarthy by the Defendant. In my judgment, it is appropriate for this aspect of the claim to be stayed pending the ruling of the CJEU and the High Court in McCarthy and the final determination of the Claimants’ statutory appeal, which should determine the Claimants’ status under the 2006 Regulations.
30.	Accordingly, my conclusion is that both claims for judicial review should be stayed.  The Claimants will have liberty to apply to lift the stay and restore the claims within one month after the final determination (including any appeals) of the Claimants’ appeal under the Immigration Acts, case number OA/21811/2013.  The Claimants will also have liberty to apply to lift the stay and restore the claims within one month after the final determination (including any appeals) of McCarthy v Secretary of State for the Home Department in the CJEU and the High Court.  The Claimants’ Immigration Act appeal and the case of McCarthy raise separate issues, and may well be concluded at different dates, so the Claimants ought to be entitled to apply to lift the stay after the final determination of either one.  They are not required to wait for the final determination of both before applying to lift the stay. 
31.	If the Claimants’ arguments succeed in their immigration appeal or in McCarthy, I anticipate that the Defendant will comply with the ruling/s and grant the Second Claimant leave to enter the UK, without the need for any relief from this court, and so I envisage that it will only be necessary to apply to lift the stay if the Claimants wish to pursue their claim for damages (if appropriate).
32.	After receiving this judgment in draft, the Claimants renewed their application for an interim mandatory injunction requiring the Defendant to grant the Second Claimant leave to enter the UK pending the final determination of the claim for judicial review.  As the Second Claimant’s entitlement to enter the UK at all is disputed by the Defendant, and I have decided that the factual issues have to be resolved by an immigration tribunal before the Claimants’ legal rights can be determined, I do not consider that it would be an appropriate exercise of my discretion to grant the injunction sought. Mandatory injunctions of this kind are exceptional.  I take into account the personal difficulties of the Claimants and their children and the delay.  On the other hand, the family living arrangements, split between the UK and France, were freely chosen by them, as long ago as September 2012, without first confirming the Second Claimant’s immigration status with the Home Office.   The First Claimant and the children are able to live with or visit the Second Claimant in France. The Defendant is entitled to be concerned that it may be difficult to enforce removal of the Second Claimant if her claim ultimately fails.   Therefore I refuse the application for an interim injunction.