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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Imafidon v Secretary of State for the Home Department [2015] EWHC 1790 (Admin) (07 April 2015) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/1790.html Cite as: [2015] EWHC 1790 (Admin)

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

		Royal Courts of Justice Strand London, WC2A 2LL
		7 April 2015

1. THE DEPUTY JUDGE: This is a claim for judicial review of decisions of the defendant in 2013 to detain and remove the claimant, a national of Nigeria born on 5 April 1962, during a period whilst he was seeking to obtain residence rights in the UK pursuant to the Immigration (European Economic Area) Regulations 2006 (SI2006/1003) ("the 2006 Regulations").
2. There were three grounds of challenge. First, that the claimant's removal would be unlawful because he is entitled to the right of permanent residence in the UK. Second, that his removal would be unlawful because he had an outstanding application for a permanent residence card and, if that were refused, an in country right of appeal. Third, his continuing detention was unlawful.
3. Since the commencement of these proceedings the claimant has obtained permanent residence and has confirmed that grounds one and two are no longer pursued. Therefore this claim is now only concerned with ground three, the lawfulness of the claimant's detention.
4. Although the case raises a relatively short point, the history is somewhat complex. The essence of the claim is that at the time of his detention the claimant had applied for and was entitled to a permanent residence card, therefore the Secretary of State's refusal to grant one was unlawful. The claimant submits that during this period he could not have been removed and therefore his detention was unlawful, there being no reasonable prospect of his removal.

Factual background

5. The chronology is as follows: on 21 August 1998 the claimant married his German wife and he says that they lived in Germany after that. On 3 December 2004 the claimant entered the UK with entry clearance as the family member of an EEA national and on 3 October 2005 he was granted a residence card as the spouse of an EEA national. In June 2010 he and his wife separated.
6. Following this he made four applications for permanent residence. The first application was made on 21 September 2010 and refused on 25 February 2011. He appealed, unsuccessfully. A subsequent application for leave to remain outside of the Immigration Rules was refused and on 26 July 2012 the claimant was encountered by immigration officials, served with an IS151A notice as an overstayer and detained. The claimant does not dispute that at this point in time his detention was lawful.
7. On 8 August 2012 the claimant made a second application for permanent residence. That was refused on 31 August 2012 because the documents were insufficient to establish that he had a right of permanent residence under the 2006 Regulations. There was no appeal against that decision.
8. On 10 September 2012 the claimant made a third application for permanent residence. Prior to its determination, on 6 November 2012 a decree nisi was ordered. The third application was refused on 19 November 2012 on the basis that the claimant had failed to provide evidence of nationality of his now ex-wife. An application was made to judicially review that decision, unsuccessfully, the application being said to be totally without merit.
9. On 18 January 2013 the claimant submitted further representations, enclosing self assessment tax documentation for his ex-wife for the period 2006/07 to 2010/11. On 2 July 2013 those further representations were refused. Subsequently the claimant's solicitors submitted further representations on 12 July which were refused on 16 July.
10. The claimant's case is that the defendant should have acceded to the further representations submitted at that stage on the grounds that the evidence he submitted showed that his wife had been exercising treaty rights in the UK continuously for a period of 5 years and he was therefore entitled to permanent residence pursuant to his third application and his detention became unlawful at that stage. Further representations were submitted on 24 July and those too were rejected on 19 August.
11. On 30 August 2013 the claimant submitted his fourth application for permanent residence. On 9 September, before it had been determined, removal directions were issued for his removal on 18 September. On 16 September he issued these proceedings and Nicol J granted a stay on his removal. On the same day his fourth application for permanent residence was refused.
12. On 19 September he was released from detention and on 25 February 2014 an appeal by the claimant against the refusal of his fourth application for permanent residence was allowed by the First Tier Tribunal.
13. Following confirmation that the claimant no longer wished to pursue grounds one and two, on 16 October 2014 Collins J refused permission on ground three on the papers, but permission was subsequently granted at an oral hearing on 2 December 2014 by McGowan J.
14. In the skeleton argument submitted by Mr Andrew Eaton, who appeared on behalf of the claimant, it is alleged that the claimant's detention became unlawful on 4 July 2013. However, on reflection Mr Eaton accepted that the earliest date upon which his client's detention became unlawful was 16 July, because the evidence to demonstrate that the claimant had acquired a right of permanent residence was not submitted to the Secretary of State until 12 July. She must be given a reasonable opportunity to consider that information and did so promptly on 16 July, so it is from that date that his detention was unlawful, if at all, until 19 September 2013 when the claimant was released, a period of just over two months.

Legal framework

15. Under the 2006 Regulations an EEA national has an initial right of admission (Regulation 11) and to reside for three months (Regulation 13). Thereafter, an EEA national is entitled to reside only for as long as he or she remains a "qualified person" as defined in Regulation 6 (Regulation 14). That means a person working, self-employed, seeking work, self-sufficient, or a student, commonly referred to as a person exercising treaty rights. Regulation 15, which is headed "permanent right of residence" states as far as relevant:

"(1)The following persons shall acquire the right to reside in the United Kingdom permanently...

(b) a family member of an EEA national who is not himself an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years."

"Family member" is defined in regulation 7(1)(a) so as to include a spouse, but it does not include a former spouse. However, former spouses may also acquire a permanent right of residence pursuant to regulation 15(1)(f), which provides:

"(f) a person who -

(i) has resided in the United Kingdom in accordance with these regulations for a continuous period of five years; and

(ii)was at the end of that period, a family member who has retained the right of residence."

16. The phrase "family member who has retained the right of residence" is defined in Regulation 10. Briefly, as far as is relevant for present purposes, it includes someone who meets the following four conditions: (1) he ceases to be a family member of an EEA national with a permanent right of residence as a result of divorce; (2) at the date of divorce he was residing in the UK in accordance with the 2006 Regulations; (3) if he were an EEA national he would be a worker, self-employed person, or a self-sufficient person under Regulation 6; (4) prior to initiation of divorce proceedings, the marriage had lasted for at least three years and both parties had resided in the UK for at least one year during the duration of the marriage, see Regulation 10(5) and (6).

By virtue of regulation 18(2):

"The Secretary of State must issue a person who is not an EEA national who has a permanent right of residence under regulation 15 with a permanent residence card no later than 6 months after the date on which an application for a permanent residence card and proof that the person has such a right is submitted to the Secretary of State."

17. It is common ground that a residence card is not the source of a right of an EEA national or family member to reside in the UK, but merely evidence of it. The source of the right is the 2006 Regulations and in particular Regulation 15, which implements the Citizens Directive (directive 2004/38/EC). I shall return to this point in due course.
18. It is almost also common ground that in accordance with the Hardial Singh principles detention is only lawful insofar as reasonably necessary to carry out the process of removal and therefore there must be a reasonable prospect of removal within a reasonable period of time; see for example R (Lumba) v SSHD [2011] UKSC 12.

Fourth application for permanent residence

19. Before dealing with the key issue relating to the defendant's letter dated 16 July 2013 and its effect, I should deal with a subsidiary issue relating to the claimant's fourth application for a residence card made on 30 August 2013. At that date the claimant was no longer a family member of an EEA national because of his divorce, which was final on 6 November 2012.
20. The claimant submitted that refusal of the fourth application was unlawful. It was submitted that the defendant acknowledged that she had received five years' worth of tax returns from the claimant's ex-wife. The application was refused on this occasion because the defendant misdirected herself when considering it as an application for a retained right of residence under Regulation 10 rather than correctly as an application for permanent residence. The application was refused because the claimant failed to demonstrate that his ex-wife was working at the time of her divorce. This is not a requirement for an application for permanent residence.
21. In my judgment those points do not avail the claimant for two reasons. First, at no stage did the grounds of claim challenge his detention on the ground of refusal of the fourth application for permanent residence being unlawful for this reason, which was raised for the first time in the claimant's skeleton argument and no application for leave to amend has been made. However, secondly, and in any event, although the application for permanent residence relies upon regulation 15(1)(b), that was erroneous because the claimant was no longer a family member of an EEA national as a result of his divorce, therefore he had to rely upon Regulation 15(1)(f) and Regulation 10(5) and (6). The Secretary of State's refusal of that application correctly dealt with it on that basis, as did the First Tier Tribunal, which in due course allowed the claimant's appeal.
22. Complaint was also made that the defendant should have allowed the application because the claimant's ex-wife was exercising treaty rights at the time of her divorce. However, as was pointed out on behalf of the defendant, evidence to that effect was only submitted to the First Tier Tribunal on the appeal; see paragraph 8 of the First Tier Tribunal decision.
23. In consequence, in my judgment there is nothing unlawful about the Secretary of State's consideration of the fourth application for permanent residence and the evidence necessary to substantiate a right to permanent residence under Regulation 15(1)(f) was not submitted until the appeal, which was lodged after the claimant was released from detention. Therefore it cannot be said that his detention was unlawful in reliance on the fourth application.

Third application for permanent residence

24. In order to deal with the key issue relating to the third application it is necessary to say a little bit more about the way in which the Secretary of State dealt with it. After the application had been refused and judicial review of that decision rejected, on 18 January 2013 the claimant submitted further representations, stating that he should have been granted permanent residence. The representations included self assessment tax documentation showing that his wife had income from self employment from before 14 May 2006 to the end of the 2010/2011 tax year, but not beyond. In other words the documentation did not show that his ex-wife had been exercising treaty rights in the UK for a continuous period of five years, as required by regulation 15(1)(b). Therefore at that stage the claimant had not provided evidence showing that he was entitled to permanent residence under that provision.
25. Those representations were considered by the defendant in a letter dated 2 July 2013 in which she reconsidered her decision on the third application. Before turning to the contents of that letter I note that at the hearing counsel for the defendant, Ms Claire Van Overdijk, informed the court that although there was a formal Home Office policy applying to applications for decisions to be reconsidered, that did not apply in this case. She produced a copy of that policy which expressly excludes decisions regarding EEA nationals and their families from its ambit. Accordingly, she submitted that it was entirely a matter for the Secretary of State's discretion whether she reconsidered a decision or not.
26. After the hearing counsel informed court that there is in fact a separate policy dealing with reconsideration of European decisions. Paragraph 2 sets out cases where a reconsideration would be appropriate and paragraph 3 sets out cases where a reconsideration would not be appropriate. Cases where a reconsideration would not appropriate include "the applicant/representative submits documentary evidence after the refusal decision has been issued."
27. It is not clear from the documents before the court whether any new material was submitted on 18 January 2013 because the bundle does not include the third application itself or the judicial review of it. However it would appear that something new was submitted because the 2 July 2013 letter did not reject the new representations on the ground that the claimant failed to provide evidence of nationality, the ground of refusal of the third application initially. Further, the letter states on page 4 that the evidence submitted "largely" duplicates evidence previously submitted, suggesting that some further material had been included in the representations submitted on 18 January.
28. Notwithstanding that, the defendant did reconsider her decision and addressed the claimant's evidence and representations in some detail in the six page letter dated 2 July. The letter states:

"(1)Thank you for your letter of 24 May 2013 requesting that the Home Office consider the further representations which you submitted on 18 January 2013 on behalf of your client, John Edward Imafidon...

(5) In your representations you state that your client 'should have been granted permanent residence when he applied as a family member on 18/11/2010.' You also stated that your client should be granted permanent residence 'based on his retained right of residence' and that your client's representation 'must not have been refused on 9 November 2012 with no rights of appeal.' Consideration has been given to your client's claims under the Immigration, European Economic Area Regulations 2006...

(10)As the acknowledgement of service [in the previous judicial review proceedings] stated, we obtained your client's former wife's tax records, which indicated no trace of any PAYE employment on HMRC systems for the period covering 6 April 2004 to date. The check also confirmed that she was not exercising treaty rights as she had not returned her tax return form for 2011/12. She was shown to have commenced as a sole trader on 14 May 2006 and therefore up until the end of the 2010-11 tax year she had not been exercising treaty rights continuously for five years...

(12)Following your representations we submitted a new request to HMRC on 4 June 2013 asking for details of Mrs Imafidon's tax records. As before, the response from HMRC showed that there was no PAYE employment records for Mrs Imafidon since 2004-05 and that she had not submitted a self assessment return for 2011-12 or subsequently.

(13)Therefore your client does not acquire the right to reside in the UK permanently under regulation 15(1)(b)."

29. It is also worth noting that the letter also considers whether the claimant had acquired a permanent right of residence post his divorce pursuant to Regulation 10(5) of the 2006 Regulations but concludes that he had not submitted the necessary evidence. What letter does not say is that because of the claimant's divorce he was no longer entitled to rely upon Regulation 15(1)(b).
30. The lacuna in the claimant's evidence relating to the claim relying on regulation 15(1)(b) having been pointed out, on 4 July the claimant's ex-wife submitted her tax return for 2011-12. On 12 July the claimant's solicitors wrote to the defendant enclosing evidence from HMRC to that effect and requesting the Secretary of State to "consider these further representations at the earliest opportunity".
31. The HMRC documentation submitted with those representations is in the court bundle. It comprises a letter from HMRC dated 10 July 2013 to the claimant's ex-wife enclosing her tax calculation for 2011/2012. That tax calculation shows profit from self-employment in the sum of £6,890. It refers to the personal allowance of £7,475 and goes on to say "total income on which tax is due: £0" and accordingly no income tax was due.
32. The defendant's reply to that letter dated 16 July 2013 says this:

"1. Thank you for your letter dated 12 July 2013, and enclosures (sic), addressed to the Home Office's Thames Valley & Surrey Immigration Compliance and Engagement (ICE) Team, about your above named client's representations. Your submissions have been passed to us for consideration and reply.

2. Your representations have not been considered by the Secretary of State personally, but by an official acting on her behalf.

3. You once again submit that your client's former wife has been exercising treaty rights in the United Kingdom since 2006 and that your client is therefore entitled to a permanent right of residence here. In support of your client's claim, you have resubmitted a self assessment statement dated 8 October 2012, a self assessment tax calculation document dated 14 January 2012, a self assessment statement dated 6 December 2011 and tax calculation documents from 2006 to 2011. Those documents have all been considered previously by the Home Office and/or the independent judiciary.

4. In addition, you have submitted a printout showing that a tax return was submitted online on 4 July 2013 for 2011 - 2012. This tax return has clearly been submitted in direct response to comments in the Home Office's letter dated 2 July 2013, and some six months after the HMRC deadline for such documents. Furthermore, it is noted that your client's former wife's income for that period was zero which does not demonstrate that she was trading or exercising treaty rights in the United Kingdom, merely that she was registered as self employed for the relevant period.

5. Your client's claim to be entitled to a permanent right of residence in the United Kingdom on the basis of his former marriage to an EEA national who had exercised treaty rights for a continuous period of five years, has been fully considered on a number of occasions, including by a High Court Judge on 8 March 2013, who refused your client permission to apply for judicial review and found his claim to be totally without merit. The Home Office also fully reviewed your client's claim on 2 July 2013 and upheld the decision to reject your client's representations. Your latest submissions dated 12 July 2013 add no weight to your client's claim, for the reasons given above.

6. In the absence of any strong countervailing circumstances there is no barrier to your client's removal and arrangements to remove him from the United Kingdom will therefore proceed. Any further enquiries should be directed to the Home Office's Thames Valley & Surrey ICE team, who are responsible for the conduct of your client's case."

33. It is immediately apparent that the second sentence of paragraph 4 of the letter is in error because the HMRC document does not show the claimant's former wife's income as zero, only her taxable income as zero. The claimant's solicitors wrote to the defendant again on 24 July pointing that out.

"In your letter dated 16 July 2013 you have stated at paragraph 4 'in addition, you have submitted a printout showing that a tax return was submitted online on 4 July 2013 for 2011 - 2012. This tax return has clearly been submitted in direct response to comments in the Home Office's letter dated 2 July 2013 and some six months after the HMRC deadline for such documents.' We submit that it is NOT relevant that the tax return was submitted in direct response to comments in the Home Office letter. We also submitted that it is NOT relevant that the tax return was submitted six months after the HMRC deadline. The only relevant matter is whether our client's ex partner was exercising her treaty rights in the year 2011-12 or not. The HMRC letter dated 10 July 2013 and the tax calculation clearly states that our client's ex-wife was exercising her treaty rights. That means that our client's ex-wife was exercising her treaty rights continuously for more than five years from 14 May 2006 up to the end of 2011-12 tax.

In your letter dated 16 July 2013, you have also stated at the same paragraph that 'furthermore, it is noted that your client's wife's former income for that period [2011-2012] was zero, which does not demonstrate that she was trading or exercising treaty rights in the United Kingdom, merely that she was registered self-employed for the relevant period. We submit that you incorrectly stated that the income was zero, therefore it was not in evidence that she was exercising treaty rights.' That is obviously wrong - the income above the tax threshold was zero but there was income of over £6,000 and there is no requirement that self-employment has to generate enough for her to be self sufficient or any particular minimum level of maintenance."

34. The Secretary of State's final word on the matter is set out in her reply dated 16 August 2013:

"I refer to your representative's letter of 24 July 2013 in which you have requested reconsideration of the decision to refuse your application for European residence documentation.

The application was considered under section 15 of the immigration EEA regulations 2006. Decisions can only be reversed where it is clear that the original decision was NOT taken in line with the prevailing policy and immigration law at the time the decision was reached. The onus is on applicants to demonstrate that they satisfy the statutory requirements.

I have reviewed the consideration given to your application and the decision made on it and I am satisfied that the correct procedures were followed and the correct decision was taken to refuse. There are no grounds for reconsideration of the application. Any further representations should now be directed to your immigration compliance and engagement team.

This decision is final. Any additional request to review this decision will not be considered and further correspondence will not be acknowledged or responded to. If you have further evidence now available to support an application under the Immigration (European Economic Area) Regulations 2006 then you are advised to submit a new application for consideration."

Submissions

35. The claimant submits that the decision to continue to detain him with a view to his removal in reliance on the letter of 16 July 2013 was unlawful. There is no bar to the defendant considering evidence submitted after the date of the original application, as the reconsideration dated 16 July 2013 demonstrates. In that letter the defendant engages with the merits of the claimant's further representations and does not say "I am refusing to consider them, you must make a new application" as she does in the 16 August 2013 letter. The author of the letter has misread the HMRC document, which clearly shows that the claimant's ex-wife had income from self-employment and had therefore been exercising treaty rights for a continuous period of five years. The claimant had therefore acquired a right of permanent residence under Regulation 15(1)(b) and fact that he did not have a residence card to prove it was immaterial. He could not be lawfully removed, there was no reasonable prospect of his removal and accordingly his continued detention for that period was unlawful.
36. It was submitted on behalf of the defendant that she did not consider that reconsideration was appropriate in the letter of 16 July. The decision points to the fact that evidence regarding the claimant's ex-wife's continuous exercise of treaty rights for a period of five years was not available when the third application for permanent residence was refused on 9 November 2012. Thus the letter properly refuses reconsideration in line with the policy on reconsideration of EEA decisions, because the claimant had submitted documentary evidence after the refusal decision was issued. Thus, although the subsequent reference to the latest tax consideration showing zero income was a mistake, because the defendant was under no obligation to reconsider the matter, and did not in fact do so, the error was not material. Even if the mistake had not been made it would have been open to defendant to refuse to reconsider her decision even if she had accepted that all of the information showed that the claimant had acquired a right of permanent residence.
37. The Secretary of State only has an obligation under regulation 18(2) to issue a permanent residence card where an application is made proving that the applicant has a permanent right of residence under Regulation 15. The point of reference for these purposes is the informational documentation provided with the actual application for a permanent residence card and not with the request for reconsideration made after refusal of the application. Only this can properly determine whether the Secretary of State must recognise an EEA right of residence. Thus when the claimant made his third application he was unable to prove that he was entitled to a permanent right of residence pursuant to regulation 15 and there was no obligation to issue him with a permanent residence card. Equally the Secretary of State was within the parameters of the discretion afforded to her to refuse to reconsider the refusal of the claimant's further application (even if the further evidence provided by him purportedly showed that the claimant's ex-wife was exercising treaty rights for a continuous period of five years). Thus there was no obligation on her to recognise any alleged right of permanent residence that may have existed at the time.
38. Consequently, even if the court finds that as a matter of fact the claimant had demonstrated to the Secretary of State in July 2013 that his wife was continuously exercising treaty rights for five years, this does not mean that his detention was unlawful as the Secretary of State was entitled in accordance with her policy to refuse to recognise that he had an EEA permanent right of residence on the basis of his third application and to require him to submit a further application to evidence this.
39. Ms Van Overdijk also relied upon the decision in R(Byczek) v SSHD [2014] EWHC 4298 (Admin) in which Jay J held that the 2006 Regulations regime runs in parallel with the Immigration Rules but separate from them. A similar point was made by Blair J in R(Abdullah) v SSHD [2009] EWHC 1771 (Admin) at paragraph 28:

"I also accept the defendant's submissions that the appellate regime under the EEA Regulations 2006 and under the 2002 Act are distinct. The original removal directions of 27 November 2008 followed from the fact that the claimant was an overstayer whose appeal rights in respect of his asylum application had been exhausted. The removal directions do not themselves constitute an appealable decision. The refusal of a residence card could not change the nature of the removal directions. Consequently there was in my view no appeal pending at the time of the claimant's removal on 10 February 2009, the effect of which under either Regulation 29 or section 78 was to prevent the claimant's removal. In particular the appeal against the decision refusing to issue him with a residence card did not have that effect. For that reason his removal on that date was not unlawful."

40. Thus the defendant submitted that the claimant was an overstayer who had been served with notice of liability to be removed under section 10 of the Immigration and Asylum Act 1999 and could be removed at any time.

Decision

41. There is no dispute that the defendant was entitled to refuse the third application for permanent residence on the material before her. When further representations were made asking her to reconsider her decision, she had a discretion. She could have decided to reconsider the refusal. Alternatively, she would have been within her rights to refuse to reconsider the decision and require the claimant to make a fresh application with whatever new material he had available. In this case the Secretary of State did both of those things.
42. When the first application for reconsideration was made, she engaged with it on its merits and reviewed the decision in the light of all of the new material submitted. This is clear not only from the substance of the letter dated 2 July 2013 but also from the formal structure of it. On the other hand when the third application for a reconsideration was made the defendant refused to reconsider her decision. She did not engage with any of the arguments put forward on the merits but instead told the claimant he had to make a fresh application.
43. Although it is asserted that the defendant had a policy regarding reconsideration of EEA decisions it is not clear to me whether she took that policy into account or indeed applied it. The decision to reconsider on 2 July 2013 would appear to have been contrary to the policy, because new material had been submitted post the initial refusal. Equally, the refusal to reconsider on 16 August 2013 does not refer to any of the three types of case listed in paragraph 3 of the policy, a copy of which was provided to me on behalf of the defendant, where a reconsideration would not be appropriate.
44. Unfortunately the defendant's letter of 16 July 2013 in response to the second request for a reconsideration does not clearly reconsider the merits as a whole in the formal way that such letters are usually drafted, in line with the format of the letter of 2 July, nor does it refuse to reconsider the matter and require a fresh application to be made, as the 16 August letter does. Instead, the 16 July letter appears to adopt a form of half way house, pointing out that the new material has only been obtained after the last decision and in consequence of it but also engaging with the new material upon its merits, saying that it does not fill the lacuna identified in the letter of 2 July. However, in my judgment it does not matter whether that letter amounted to a reconsideration of the defendant's previous refusal or constitutes a decision not to reconsider.
45. I accept the submission on behalf of the Secretary of State that she is entitled to determine applications for a permanent residence card in accordance with the material submitted with the application. Whether she chooses to reconsider her decision after further representations are made is a matter for her, although any decision not to reconsider has to be exercised rationally, having regard to any applicable policy on reconsiderations.
46. However, in my judgment there is a distinction to be drawn between whether the Secretary of State is bound to reconsider an application for a permanent residence card and, if appropriate, issue one and whether an applicant has acquired the right of permanent residence under the 2006 Regulations.
47. As was pointed out on behalf of the claimant in written submissions which I permitted to be made on this subject after the hearing ended, Article 25(1) of the Citizens Directive states:

"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 care or a permanent residence card may under no circumstances be made a pre-condition 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."

48. That proposition was recently confirmed by the ECJ in Dias [2011] EU ECJ C-325/09-paragraph 48:

"As the court has held on numerous occasions, the right of nationals of a Member State to enter the territory of another Member State and to reside there for the purposes intended by the EC treaty is a right conferred directly by the Treaty or, as the case may be, by the provisions adopted for its implementation. The grant of a residence permit to a national of a Member State is to be regarded not as a measure giving rise to rights, but as a measure by a Member State serving to prove the individual position of a national of another Member State with regard to provisions of the European Union law."

49. There is no dispute that as at 16 July 2013 the Secretary of State had all of the material before her necessary to prove that, as at the date of the third application for permanent residence, the claimant had acquired a permanent right of residence. Further, what is clear about the 16 July letter is that the Secretary of State is not saying because the claimant had divorced there had been a change in circumstances and the claimant could no longer be regarded as a family member and therefore could no longer rely on Regulation 16(1)(b). Rightly or wrongly, the letter is still addressing the circumstances as they relate to the claimant's third application made on 10 September 2012.
50. It was not submitted by Ms Van Overdijk that the Secretary of State could have refused to accept that the claimant had acquired a permanent right of residence under Regulation 15(1)(b) as at that date because of his divorce. In relation to the claimant's position, therefore, on 16 July 2013 he was entitled to a permanent right of residence under regulation 15(1)(b).
51. The Secretary of State had no obligation to grant a permanent residence card because the third application had lawfully been refused and she was entitled to refuse to reconsider that decision. But the claimant's rights derive from the fact that he met the criteria in Regulation 15(1)(b) and had proved that with evidence not from a residence permit. Further, the 16 July 2013 letter is not just about the claimant's application for a permanent residence card but also about his detention. It states:

"Your latest submissions dated 12 July 2013 add no weight to your client's claim for the reasons given above. In the absence of any strong countervailing circumstances there is no barrier to your client's removal and arrangements to remove him from the United Kingdom will therefore proceed."

52. That is a decision to the effect that the claimant has not acquired a permanent right of residence and therefore should be removed.
53. In my judgment that decision was clearly taken on an erroneous basis and is unlawful. The Secretary of State had all of the evidence necessary to show that the claimant had acquired a permanent right of residence and moreover she had considered that evidence. The claimant could not be lawfully removed and his continued detention was unlawful.
54. It is not strictly necessary for me to consider whether this approach is consistent with the decision in Abdullah. That case concerned an extended family member not a family member of an EEA national who applied for a residence card under section 16(1) of the 2006 Regulations, which gives the Secretary of State a discretion to issue a residence card in certain circumstances. Extended family members do not have the same rights under the Citizens Directive and 2006 Regulations as family members. I have not heard any argument on the implications of the acquisition of a permanent right of residence as opposed to the grant of a residence card on the reasoning of the decision in Abdullah, Blair J not being referred to the acquisition of a permanent right of residence and it would be wrong for me to express any view about it.
55. It follows from my decision that there may be circumstances in which the Secretary of State lawfully refuses to reconsider a decision to refuse to issue a permanent residence card where further material is submitted after the original application is refused, yet the evidence in fact shows that the applicant has acquired a right of permanent residence. In many cases that will not matter. The applicant may submit a further application or appeal under Regulation 26.
56. However, where the applicant is in detention it clearly will matter. I accept that this may result in the Secretary of State having to reconsider a refusal to issue a permanent residence card in response to repeated further representations when she would not have reconsidered the decision if the applicant had not been in detention, because otherwise there would be a risk of the detention being found to be unlawful. However, in my judgment that is right. A person should not be detained if they have be acquired a permanent right of residence and the Secretary of State should reconsider decisions which have implications for the lawfulness of their detention.
57. For all of these reasons in my judgment the Secretary of State's decision to continue to detain the claimant after 16 July 2013 was unlawful.
58. THE DEPUTY JUDGE: I have not seen any costs schedules.
59. MR MOHAMED: My Lady, we have agreed that today is probably a date where you could consider, perhaps, the issue of costs in principle and to what extent they will apply to the grounds that were subsequently withdrawn and of course ground three, which you have found in favour of the claimant. And so on that basis I am happy to first make my submissions or you may want to hear from my learned colleague, or which ever way you are minded to proceed I am happy to assist.
60. THE DEPUTY JUDGE: Well I think the logical consequence of my decision is that the claimant was entitled to bring all of the judicial review proceedings and therefore he should have his costs but I will listen to anything you want to say to the contrary.
61. MR MOHAMED: I will make my submissions in the following two parts. It is our principal position that as far as grounds one and two are concerned, you have set out the chronology, I won't repeat it, but all I will say is that first of all those grounds were effectively never given permission as far as judicial review was concerned. You will know from His Honour Judge Thornton's decision that he goes through a great deal of information but he doesn't actually deal with permission then later we have the First Tier Tribunal's decision of 1 April which renders it otiose. And then on 13 October Collins J refuse permission and the only time we have permission being granted is by McGowan J and that is on of the basis of ground three. So the principal argument would be that no costs as far as grounds one and two are concerned but if you are not with us on that, then we would submit that you should allow for costs up until the First Tier Tribunal's decision on grounds one and two, so maybe the date of 1 April 2014, the First Tier Tribunal's determination, and for ground three the period in which the matter was pursued. I don't know if you have the bundle in front of you, I can give you the paginated bits and pieces, page 124 is His Honour Judge Thornton's decision and all I will say is he goes through the argument and doesn't actually deal with the issue of permission. If we take one step back at page 123 we have Collins J's refusal and then at 128, again further back, there is a stay of proceedings at that page. At 114 is the order that we have from McGowan J and that simply just says permission is granted but we know at that stage only ground three is live. My Lady, that is what we say in principle; grounds one and two, we say in principle shouldn't be allowed.
62. If you are not with us, I have given you the time period from which in our submission they should be granted costs, so effectively up until the First Tier Tribunal decision. I make that submission for the reasons I have explained but also just to add to that, the fact that as far as the Secretary of State's decision is concerned, no permission was granted on those first two. My Lady, that is all I will say about that.
63. In relation to the other matters, potentially my learned colleague will say something about damages and permission to appeal. I am happy to rise again if there are any disputes.
64. THE DEPUTY JUDGE: Right. I am ordering the defendant to pay the claimant's costs of this action to date. The challenge was squarely to the detention and decision to remove the claimant after he produced evidence to show that he had acquired a permanent right of residence and those costs will be assessed if not agreed and there will be legal aid assessment of the claimant's costs.
65. There is a claim for damages. I am minded to adjourn that, and it should be capable of being agreed. If it can't be then the claimant's solicitors will have to apply to the court to have the case re-listed.
66. MR EATON: Would it be appropriate if it is re-listed it is transferred to the Queen's bench division for the consideration of damages, or --
67. THE DEPUTY JUDGE: I think we will leave it as it is. If it can't be agreed the claimant's solicitors will have to apply to the court for directions and depending on what the position is at that stage, directions can be given either for transfer, for service of further evidence, skeletons and the like. I will wait and see what emerges.
68. MR EATON: My Lady, thank you.
69. MR MOHAMED: My Lady, the only thing I was going to add is to say that I was going to say to my learned colleague we are content for it to be transferred to the Queen's Bench Division if that is what you prefer to order today. If you prefer it to be stayed for submissions on the damages or, if at all, leaving to permission to appeal, I am in your hands.
70. THE DEPUTY JUDGE: I would be grateful for your assistance. This is the first case I have done where I have found detention is unlawful, so.
71. MR EATON: My Lady, I am happy to stick with the track you have set out earlier, and we will see where we are. If necessary, I hope we will be able to reach an agreement between the parties, if necessary we will seek directions from the court after that.
72. THE DEPUTY JUDGE: Right.