Neutral Citation Number: [2015] EWHC 2118 (Admin)

Case No: CO/16858/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 20/07/2015

Before :

MR JUSTICE NICOL
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Between :

	Michael Otobo	Claimant	
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	Secretary of State for the Home Department	Defendant	

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Mark Henderson (instructed by Lawrence Lupin, Solicitors) for the Claimant
Lisa Busch (instructed by Government Legal Department) for the Defendant

Hearing dates: 14th July 2015
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Approved Judgment

Mr Justice Nicol : 

1.	Michael Otobo is the Claimant in this application for judicial review. He is an Irish Citizen and says he has been living for many years in the UK pursuant to his treaty rights as an EEA national. However, so far as I can see, the real purpose of the proceedings is to benefit Michael’s brother, George. I mean no disrespect to the two men by referring to them by their first names. George is a Nigerian national who has, he says, been living in the UK for more than 5 years as the extended family member of Michael. George has an outstanding application with the Secretary of State for the Home Department (‘SSHD’) for a permanent residence card pursuant to the Immigration (European Economic Area) Regulations 2006 SI 2006 No. 1003 (‘the EEA regulations’) reg. 18. By this claim for judicial review Michael seeks to establish that, when deciding this application, it would not be lawful for the SSHD to dispute that he (Michael) was indeed exercising his treaty rights in the UK during the relevant period. 
2.	While that brief introduction sets the scene, it is necessary to go into the history of the matter in greater detail.
3.	In November 2005 Michael applied for a residence card for himself and his then wife, Tracy Otobo. The application was refused in April 2006. Tracy appealed. On 24th May 2006 the appeal was dismissed. I have not seen the decision, but a later letter from the SSHD records that this was because Michael failed to demonstrate that he was self-employed or otherwise an EEA national who was exercising EEA treaty rights of free movement. In the EEA regulations this is referred to as a ‘qualified person’ and there was a similar expression used in the predecessor regulations which were in force at the time.
4.	In December 2006 George applied for a family residence card based on his relationship to Michael and his dependency on Michael. It was granted and issued to him on 20th September 2007. 
5.	On 25th September 2008 George’s residence card was revoked. It seems that this led to judicial review proceedings (CO/541/2012) which were settled on the basis that the SSHD would reconsider the revocation. This was done, but on 28th February 2012 the SSHD maintained the position that the revocation should stand. In part this was because the SSHD was not satisfied that George was dependent on Michael. However, the SSHD also noted that two companies for whom Michael had said he worked, Mikis and Co LLP and Maliz Rights LLP could not be traced. In consequence the SSHD was not satisfied that Michael was exercising his treaty rights or that he was a qualified person for the purpose of the EEA regulations. On 5th March 2012 this outcome was incorporated into an appealable immigration decision.
6.	George did indeed appeal. The appeal was heard by First-tier Tribunal Judge Raymond. At the appeal hearing the SSHD was not represented, nor was there any report from whoever carried out the SSHD’s inquiries which had led to the decision to maintain the revocation of George’s residence card. Accordingly, on 18th July 2012 Judge Raymond allowed the appeal. 
7.	The SSHD appealed  to the Upper Tribunal.
8.	George’s residence card had been issued for 5 years. On 19th August 2012 (and so shortly before it would have expired on 20th September 2012) George submitted an application for a permanent residence card. 
9.	On 7th September 2012 George issued further judicial review proceedings (CO/9491/2012). I have not seen the claim form in these proceedings but they are referred to indirectly by the judges who considered the application for permission to apply for judicial review (HHJ Bidder QC and Ms. D. Gill, both sitting as Deputy Judges of the High Court). 
10.	On 3rd November 2012 Upper Tribunal Judge Chalkley dismissed the SSHD’s appeal from Judge Raymond’s decision. He said that there was no error of law. The SSHD had the burden of proof to establish that revocation was justified. Judge Raymond was entitled to decide that the letter of 28th February 2012 (absent any further report of the inquiries which the Home Office had made) was insufficient to do that. Nor was Judge Raymond obliged to remit the matter to the SSHD for further decision. Judge Chalkley said,
‘The judge did not find that the appellant’s brother is a qualified person; he was simply not satisfied on the balance of probabilities that the appellant’s brother is not a qualified person and that the respondent was thereby entitled to revoke the residence card.’
11.	On 26th February 2013 the SSHD refused George’s application for a permanent residence card. In part the decision was made because George had not provided Michael’s passport or identity card. In part reliance was placed on the same information which had featured in the letter of 28th February 2012 in order to lead again to the conclusion that Michael was not exercising his treaty rights and so was not a qualified person.
12.	This decision was not appealable. George did issue another claim form seeking judicial review (CO/2672/2013). Again I have not seen the claim form itself but it seems to have been later joined with CO/9491/2012 and it was the two applications for permission which were considered by Judge Bidder and Ms. Gill. 
13.	On 8th May 2013 George made a second application for a permanent residence card. It is this application which remains outstanding. 
14.	The EEA regulations are the UK’s implementation of Directive 2004/38/EEC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. Article 20 deals with permanent residence cards for family members who are not nationals of a Member State. Article 20(2) says, 
‘The application for a permanent residence card shall be submitted before the residence card expires. Failure to comply with the requirement to apply for a permanent residence card may render the person concerned liable to proportionate and non-discriminatory sanctions.’
	There does not seem to be any transposition of the requirement that the application for a permanent residence card has to be made before the expiry of the residence card into the EEA regulations. In any event, the SSHD has not suggested in correspondence that this second application by George for a permanent residence card was in some way invalid because it was made after the expiration of the residence card.
15.	On 15th August 2013 HHJ Bidder QC sitting as a Deputy High Court Judge refused George permission to  apply for judicial review in CO/9491/2012 and CO/2672/2013. He said, 
‘Although, having regard to the decision of the First-tier Tribunal, there would have been no defence to this claim, the residence card in question has now expired and a new application must be made. The decisions of the First-tier Tribunal are sufficient satisfaction for the complaints made by the Claimant about inaccurate information held by the Defendant and the claim is now academic.’
16.	 On 17th October 2013 the SSHD refused George’s second application for a permanent residence card. She did so on almost identical grounds to the decision letter of 26th February 2013 i.e. a failure by George to provide his passport and also because Michael was not accepted to have been a qualified person exercising treaty rights in the UK. 
17.	On 12th November 2013 the claim form in the present proceedings was issued by Michael. He drafted it himself. It sought relief in the form of an order that the SSHD expunge inaccurate data held by it. Mr Henderson who was later instructed to represent the Claimant and who appeared before me on the Claimant’s behalf, confirmed that the Claimant was no longer seeking this form of relief.
18.	On 26th November 2013 Ms D. Gill sitting as a Deputy High Court Judge refused renewed applications for permission to apply for judicial review by George in CO/9491/2012 and CO/2672/2013. She noted that in both matters George was seeking an order that the SSHD restore his original (i.e. 5 year) residence card following the outcome of the successful appeal to the FTT and the SSHD’s unsuccessful appeal to the Upper Tribunal.  Ms Gill observed that this was impossible since the 5 year card had expired on 20th September 2012 and could not be reinstated. She added this,
‘If an issue arises in the future in which it is relevant for the Claimant to show that he accrued residence in the UK as the EEA family member of a qualified person during the period 20 September 2007 (the date of its issue) to 20 September 2012 (the date of its expiry), he will be able to rely upon that residence card and the determinations of the First-tier Tribunal and the Upper Tribunal to show that he had indeed accrued in such a capacity for such a period. That is his alternative remedy to the extent that this is his concern. A residence card does not confer a permit to reside under the EEA regulations; it merely confirms a right that exists because the conditions were satisfied.’
19.	The second refusal of a permanent residence card on 17th October 2013 had (in part) been on the basis that George had not submitted his passport. On 16th January 2014 the SSHD acknowledged that this was a mistake. George had previously submitted his passport to the Home Office in 2012. The SSHD understood that George wanted it back so that he could travel abroad. The passport had been sent to him by recorded delivery, but the Post Office had returned it undelivered to the Home Office. In this letter the SSHD asked for evidence of Michael’s passport and evidence that he had exercised treaty rights in the UK over the relevant 5 year period.
20.	On 14th October 2014 Ouseley J. granted permission to Michael to bring this claim for judicial review. He said,
‘The claim is not well formulated for the real point to emerge, and it is not surprising that the AoS does not address it. It is this. In the case of George Otobo, the revocation of the residence card, expired though it became, was based on the allegation that his brother Michael was not a qualified person, that is an EEA national, importantly exercising his treaty rights here. The appeal was allowed, the SSHD having failed to attend to maintain by evidence her assertion that Michael was not a qualified person.
As I understand the essence of this claim, it is not a repeat of George’s claim or his wife’s. It is a claim that the decision in George’s claim means that the basis upon which the SSHD had concluded that George was not entitled to a residence card, that Michael was not a qualified person, must be expunged from government record, and that the SSHD must now acknowledge Michael to be a qualified person, for whatever significance that may have in reality or to Michael for other purposes. The nature of the solicitor’s firm for whom he was said to be working, or of his relationship with them, may be relevant. However, much may turn on the significance of the way in which the decision by the UT was reached in George’s case, and on whether it was more than a decision on the burden of proof rather than a finding as to the status of Michael. It may be that two different decisions can lawfully be reached. But that may be arguable. The remedies sought all depend on that point. That is the only substantive point upon which I grant permission to proceed, though I think that is the point which the Claimant wishes to raise, though relief if he is successful is also a matter for debate.’
21.	 As I have said, Michael acted for himself when this claim was issued. He later obtained representation. Amended grounds were drafted by Mr Henderson and served on 5th May 2015.  On 27th May 2015 Ms Busch for the SSHD served supplementary detailed grounds of defence, supplementing those originally served on 17th November 2014.
22.	Mr Henderson argues that the First-tier Tribunal has rejected the SSHD’s case for saying that Michael was not exercising treaty rights in the UK. The Upper Tribunal upheld that decision. It is a clear principle that the SSHD must abide by that factual conclusion and cannot properly seek to have a ‘second bite at the cherry’. This principle is established by a number of cases, notably R v SSHD ex parte Mersin [200] INLR 511 (QB) and SSHD v TB (Jamaica)  [2009] INLR 221, [2008] EWCA Civ 977 (CA). The position might be different if there were evidence of fraud, further developments, or further evidence which for some good reason was not presented to the First-tier Tribunal in 2012. But, Mr Henderson submits, the SSHD does not allege fraud or developments after the previous Tribunals heard the matter. The letters which were written to George in February 2013 and October 2013 rely entirely on the same points as had been set out in the SSHD’s letter maintaining the decision to revoke George’s 5 year residence card.
23.	For the SSHD Ms Busch takes two initial points. First, she submits that this claim is an abuse of process because it is, effectively, a re-run of the two judicial review applications brought by George and for which HHJ Bidder and Ms Gill  refused permission to apply. (I emphasise that this preliminary argument is based on repetition of arguments which have previously been considered by the Administrative Court. She does not submit that it is an abuse or cannot be maintained on grounds that the Claimant is Michael rather than George). Secondly, she argues the claim is premature. The SSHD has acknowledged that George’s (second) application for a permanent residence card is outstanding. If it is successful, Michael’s challenge will effectively fall away. If it is unsuccessful, George will at least know precisely the reasons for the decision. There may or may not be a right of appeal, but if George believes that the SSHD has erred in law in reaching her decision he can apply again for judicial review. But his present challenge, in advance of knowing whether the application will be refused and, if it is, the reasons for the refusal, is premature.
24.	Mr Henderson says that the proceedings are not an abuse. The context has moved on since the decisions of Judge Bidder and Ms Gill. Nor should I refuse to deal with the substance of the argument on grounds of prematurity. Shortly before this hearing, the Claimant’s solicitors had written to the Government Legal Department asking (among other things) whether the SSHD maintained her position that she did not recognise that Michael was a ‘qualified person’ as defined by the EEA regulations. In its letter of 30th June 2015 the GLD had replied ‘I am instructed to confirm that the Secretary of State maintains her position.’ Mr Henderson argued that in view of this it would be wasteful of time and resources for the Court not to resolve the matter.
25.	I do not accept Ms Busch’s argument that this application is an abuse of process because it is a re-run of George’s unsuccessful applications for judicial review. I recognise, as I said at the beginning of this judgment, that the present case is really about George’s status. There has been no evidence that the issue of Michael’s status as a ‘qualified person’ is relevant to anything other than George’s outstanding application for a permanent residence card. It is precisely because that application is outstanding that the position is different from that which Judge Bidder and Ms Gill faced when they were considering George’s applications for permission to apply for judicial review. When the matter came before Judge Bidder, the 5 year residence card would have expired and there was no point in debating whether the SSHD had erred by not restoring it subsequent to the decisions of the Tribunals. The applications were then academic. Ms Gill came to the same conclusion. She said that George’s recourse was to apply again for a residence card. She was told that he had made just such an application. She was told that it had been refused for other reasons. Mr Henderson criticises the SSHD for not making clear to Ms Gill that this was only partially true. There were other reasons (what was at the time believed to be a failure to produce George’s passport), but, as I have shown, these were in addition to the SSHD’s belief that Michael was not a qualifying person. Ms Gill may not, therefore, have fully understood the position adopted by the SSHD in response to George’s application for a permanent residence card. This, though, is immaterial. The application for a permanent residence card appeared to have been dealt with. What has changed and why this is not simply a re-run of the previous applications for judicial review is that the SSHD now appreciates that George’s application for a permanent residence card was refused on a basis that was at least partially false (because the Home Office did in fact have his passport) and the decision on that application needs to be taken again. 
26.	However, it is also because George’s application for a permanent residence card does remain outstanding that I agree with Ms Busch that this application for judicial review is premature. In view of the GLD’s letter of 30th June 2015 which says that the SSHD maintains her position that Michael was not a qualified person during the period of George’s residence card I recognise that the prospects of George’s application for a permanent residence card being successful are not good. But Ms Busch is right to say that, until the SSHD takes a final decision on George’s application the reasons for any refusal (if that is what it is) cannot be known. Until then, it is premature for the Court to rule on what the SSHD’s stance might be. It cannot be known, for instance, as to whether the SSHD is intending to rely simply on the material which was available to her previously or whether there is new material germane to the issue and, if there is, what, if any, justification the SSHD would put forward for being able to rely on this when it was not put before Judge Raymond.
27.	In the course of the hearing, I asked Mr Henderson to identify the decision of the SSHD which Michael was seeking to challenge by this application for judicial review. He said that it was the SSHD’s continuing refusal to acknowledge that Michael had a right to reside in the UK as a qualified person between 2007-2012. The relief that he was seeking was a declaration that the SSHD was obliged to acknowledge that he did or, alternatively, a judgment of the Court to the same effect. However, in my judgment there was no legal duty on the SSHD to provide the acknowledgement that Mr Henderson was seeking as a distinct and separate step from providing a response to George’s application for a permanent residence card. This is another way of saying that Ms Busch’s prematurity objection is well-founded.
28.	The GLD’s letter of 30th June 2015 also said that ‘no new decision has subsequently been made [on George’s outstanding application for a permanent residence card] because [George] has not provided requested information.’ That appears to be a reference back to the letter of 16th January 2014 in which the SSHD had sought (among other things) ‘Evidence that your sponsor has exercised Treaty rights in the UK for a continuous period of five years’. It would, of course, be open to George to provide such further evidence. In the course of her submissions, Ms Busch accepted that the 5 year residence card (which Judge Raymond had held was wrongly revoked) would be evidence that Michael had exercised Treaty rights in the UK for the relevant 5 year period, although she stressed it would not be determinative. It would, therefore, I suppose, be open to George to say that he wished the SSHD to proceed to consider the application for a permanent residence card on the basis of his 5 year residence card without submitting any further evidence that Michael had exercised his treaty rights in the UK over that 5 year period. George would need to make that clear and be clear as well about his response to the request for evidence as to the other matters in the letter of 16th January 2014. Once that is done, the SSHD would be obliged to determine the outstanding application for a permanent residence card. If she refuses the application she will have to set out her reasons. I agree with Ms Busch that it would only be then that the Court (or Tribunal if there is a right of appeal) would be in a position to assess whether the SSHD has acted lawfully.
Conclusion
29.	Since this claim for judicial review is premature it is dismissed.