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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> AB & Anor v Home Office [2012] EWHC 226 (QB) (16 February 2012) URL: http://www.bailii.org/ew/cases/EWHC/QB/2012/226.html Cite as: [2012] EWHC 226 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London WC2A 2LL |
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B e f o r e :
Sitting as a Deputy Judge of the Queen's Bench Division
BETWEEN:
____________________
(1) A.B. (2) M.V.C. |
Claimants |
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- and - |
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HOME OFFICE |
Defendant |
____________________
Mr Navjot Atwal
(instructed by the Treasury Solicitor)
appeared for the Defendant
Hearing dates: 25, 28, 29, 30 November, 1 December 2011, 16 February 2012
____________________
Crown Copyright ©
MR SALTER QC:
Introduction
4.1. First, they say that the conduct of the Home Office failed to give effect to their rights under Articles 20 and 21[2] of the Treaty on the Functioning of the European Union (the "TFEU")[3] and/or under Articles 7, 8 and 10 of Directive 2004/38 EC of the European Parliament and of the Council on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States ("the Citizens' Directive")[4] and/or Regulations 12 and 17 of The Immigration (European Economic Area) Regulations 2006 (the "2006 Regulations")[5], and that they are accordingly entitled to damages for breach of statutory duty.
4.2. Secondly, they say the conduct of the Home Office amounted to misfeasance in public office, entitling them to damages in tort.
4.3. Thirdly, they say that they are entitled to compensation or damages for breach by the Home Office of the undertaking which it gave on 15th July 2010.
4.4. Finally, they say that the conduct of the Home Office was incompatible with their right under Article 8 of the European Convention on Human Rights to respect for their private and family life, and was so unlawful under the Human Rights Act 1998 s 6(1). They accordingly claim damages under s 8(1) of that Act.
The Background Facts
It has now been accepted that there is family life between you [ie Ms C] and [Mr B]
However, paragraph 103 of the letter went on to note that
.. the HMRC tax credit return for 2007/2008 and a bank statement from Mr [B] from 2009 show that he is in receipt of Income Support.
The relevance of the first of these points to Ms C's application for an EEA residence permit is plain. However, the second point is also potentially relevant because (for reasons that I shall explain later in this judgment) it called into question in Mr Iling's mind Mr B's own immigration status as an EU citizen exercising Treaty rights in the UK, on which Ms C's application for residence as his unmarried partner depended.
.. genuinely puzzled as to why precisely the [Senior Immigration Judge] granted [permission to appeal] .. [Immigration Judge] Turquet did not deny the existence of family life but found that its existence was not proven by the documents before her to the threshold of the balance of probabilities ..
.. if there is an error here, it is that of [Mr B] in not submitting the required evidence ..
.. He claims that he is exerting [sic] treaty rights but failed to satisfy the Home Office or the Tribunal of this, and indeed, is on income support. This point is crucial as, if [Mr B] is not a qualified person, any appeal is invalid ...
4. .. Mr Walker conceded and I find that [Immigration Judge Turquet] made a material error of law. There was evidence before her which was clearly relevant to the question of whether [Ms C] and [Mr B] had been living together in a stable relationship which she failed to consider, notably the letter from [D's godmother].
5. Having found that there was a material error of law, I was invited to and agreed to hear all the evidence. I heard evidence from [Ms C], [Mr B] and [D's godmother] and Mr Walker cross-examined them. At the conclusion of [Ms C's] case Mr Walker reconsidered [the Home Office's] position, and conceded that [Ms C] was entitled to the grant of a residence card as a family member of an EEA national. On behalf of the Secretary of State he gave an undertaking that a residence card would be issued to her and, relying on that undertaking, [Ms C] withdrew her appeal. I record the undertaking given on behalf of [the Home Office] and that [Ms C] has withdrawn her appeal.
Please see below. I am sorry to say that I am becoming rather irritated that I have had no real response from SAT yet as to the course ahead. I firmly believe that [Ms C] had no valid appeal, as [Mr B] is not a qualified person; and that that no concession should have been made in this case. However we need to know what the current situation is before deciding how to proceed with the EEA application and asylum appeal.
Peter, This is, I am afraid, a sneaky way of approaching the case. .. I must admit, I don't think we'll get anywhere with this but it was the only near-feasible approach I could think of using here. We should hear in 2-3 weeks so I may be in touch then.
.. as you conceded the recon hearing, leaving us no alternative, please ensure the file is passed to Liverpool .. as they refused the permit originally and upheld it at reconsideration, they should issue the permit and implement the determination ..
Ms Hasting's response to Mr Iling was that she had spoken to Mr Walker, who had been waiting to receive a copy of Upper Tribunal Judge Moulden's Determination before forwarding Ms C's file to Liverpool. Ms Hastings' email to Mr Iling said that she had now supplied Mr Walker with a copy of the Determination, and accordingly "the next you should hear of this is that the residence card has been issued and the appellant writing to withdraw the appeal".
The Relevant Statutory Provisions
The TFEU
Article 20
(1) Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.
(2) Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:
(a) the right to move and reside freely within the territory of the Member States ..
These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder
Article 21
Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.
The Citizens' Directive
This Directive lays down the conditions governing
(a) the exercise of the right of Citizens' and residence within the territory of the Member States by Union citizens and their family members;
(b) the right of permanent residence in the territory of the Member States for Union citizens and their family members;
(c) the limits placed on the rights set out in (a) and (b) on grounds of public policy, public security or public health.
.. all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2[12] who accompany or join them.
(a) are workers or self-employed persons in the host Member State[13]; or
(b) have 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; or
(c) – are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and
– have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have 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
(2) The right of residence provided for in paragraph 1 shall extend to family members who are not nationals of a Member State, accompanying or joining the Union citizen in the host Member State, provided that such Union citizen satisfies the conditions referred to in paragraph 1(a), (b) or (c). ..
(4) By way of derogation from paragraphs 1(d) and 2 above, only the spouse, the registered partner provided for in Article 2(2)(b) and dependent children shall have the right of residence as family members of a Union citizen meeting the conditions under 1(c) above. Article 3(2) shall apply to his/her dependent direct relatives in the ascending lines and those of his/her spouse or registered partner.
"Family member" means:
(a) the spouse;
(b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State;
(c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b);
(d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b).
In order to maintain the unity of the family in a broader sense and without prejudice to the prohibition of discrimination on grounds of nationality, the situation of those persons who are not included in the definition of family members under this Directive, and who therefore do not enjoy an automatic right of entry and residence in the host Member State, should be examined by the host Member State on the basis of its own national legislation, in order to decide whether entry and residence could be granted to such persons, taking into consideration their relationship with the Union citizen or any other circumstances, such as their financial or physical dependence on the Union citizen.
Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:
(a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;
(b) the partner with whom the Union citizen has a durable relationship, duly attested.
The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.
Member States shall issue a residence card to family members of a Union citizen who are not nationals of a Member State, where the planned period of residence is for more than three months.
Article 10 then provides that:
(1) The right of residence of family members of a Union citizen who are not nationals of a Member State shall be evidenced by the issuing of a document called "Residence card of a family member of a Union citizen" no later than six months from the date on which they submit the application. A certificate of application for the residence card shall be issued immediately. ..
(2) For the residence card to be issued, Member States shall require presentation of the following documents: ..
(f) in cases falling under Article 3(2)(b), proof of the existence of a durable relationship with the Union citizen.
The 2006 Regulations
(1) In these Regulations, "qualified person" means a person who is an EEA national and in the United Kingdom as (a) a jobseeker[15]; (b) a worker[16]; (c) a self-employed person[17]; (d) a self-sufficient person[18]; or (e) a student[19].
(2) A person who is no longer working shall not cease to be treated as a worker for the purpose of paragraph (1)(b) if .. (d) he has voluntarily ceased working and embarked on vocational training that is related to his previous employment.
.. exceed the maximum level of resources which a United Kingdom national and his family members may possess if he is to become eligible for social assistance under the United Kingdom benefit system ..
.. the partner of an EEA national (other than a civil partner) and can prove to the decision maker that he is in a durable relationship with the EEA national ..
.. a family member of a qualified person residing in the United Kingdom .. for so long as he remains the family member of the qualified person ..
(3) Subject to paragraph (4), a person who is an extended family member and has been issued with an EEA family permit, a registration certificate or a residence card shall be treated as the family member of the relevant EEA national for as long as he continues to satisfy the condition .. [that he is the partner of an EEA national (other than a civil partner) and can prove to the decision maker that he is in a durable relationship with the EEA national] in relation to that EEA national and the permit, certificate or card has not ceased to be valid or been revoked.
(4) Where the relevant EEA national is a student, the extended family member shall only be treated as the family member of that national under paragraph (3) if .. the residence card was issued under regulation 17(4).
(1) The Secretary of State must[21] issue a residence card to a person who is not an EEA national and is the family member of a qualified person or of an EEA national with a permanent right of residence under regulation 15 on application and production of:
(a) a valid passport; and .
(b) proof that the applicant is such a family member.
(2) The Secretary of State must issue a residence card to a person who is not an EEA national but who is a family member who has retained the right of residence on application and production of:
(a) a valid passport; and.
(b) proof that the applicant is a family member who has retained the right of residence. .
(3) On receipt of an application under paragraph (1) or (2) and the documents that are required to accompany the application the Secretary of State shall immediately issue the applicant with a certificate of application for the residence card and the residence card shall be issued no later than six months after the date on which the application and documents are received.
(4) The Secretary of State may[22] issue a residence card to an extended family member not falling within regulation 7(3) who is not an EEA national on application if
(a) the relevant EEA national in relation to the extended family member is a qualified person or an EEA national with a permanent right of residence under Regulation 15; and
(b) in all the circumstances it appears to the Secretary of State appropriate to issue the residence card.
(5) Where the Secretary of State receives an application under paragraph (4) he shall undertake an extensive examination of the personal circumstances of the applicant and if he refuses the application shall give reasons justifying the refusal unless this is contrary to the interests of national security.
Without proof of a durable relationship, the Regulation 17(5) duty does not apply. That becomes clear when the Regulations are considered in the light of Article 3(2) of the Citizenship Directive, by which the obligation to undertake and extensive examination applies to a "partner with whom the Union citizen has a durable relationship, duly attested[23].
Ms C's right to reside in the United Kingdom
Treaty rights
Rights as mother and carer of D
Rights as the unmarried partner of Mr B
.. [T]he concept of worker .. has a specific Community meaning . As the Court has already held, any person who pursues an activity which is effective and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, is to be treated as a worker .. The essential characteristic of the employment relationship is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration ..[37]
.. Obstacles to the right of entry and the issuance of residence cards to third-country family members accompanying or joining EU citizens moving to other Member States include excessive requirements for documents to be submitted, cumbersome administrative procedures and delays. Other family members of EU citizens (eg de facto partners) may encounter problems in having their right of entry and residence facilitated. Further problems occur when the concept of 'other family members' is either not reflected in national legislation or is interpreted in a manner contrary to EU law ..
The Claimants' Claims
Breach of Statutory Duty
104.1. First, the Home Office's failure to issue to Ms C a certificate evidencing her application for a residence card. Mr B submits that this certificate should, under Article 10 of the Directive and regulation 17(1) of the 2006 Regulations, have been issued immediately, and would thereafter have allowed Ms C lawfully to work in the United Kingdom; and
104.2. Second, the Home Office's failure to issue a residence card to Ms C. Mr B submits that this should, under Article 10 of the Directive and Regulation 17(3) of the 2006 Regulations, have been issued to Ms C at the latest within 6 months of the date of her application.
… the decisive test for finding that a breach of Community law is sufficiently serious is whether the Member State or the Community institution concerned manifestly and gravely disregarded the limits on its discretion.
The factors which the competent court may take into consideration include the clarity and precision of the rule breached, the measure of discretion left by that rule to the national or Community authorities, whether the infringement and the damage caused was intentional or involuntary, whether any error of law was excusable or inexcusable, the fact that the position taken by a Community institution may have contributed towards the omission, and the adoption or retention of national measures or practices contrary to Community law ..[55]
Reporting requirements
Misfeasance in Public Office
128.1. Failing correctly to address the Certificate of Application letter dated 17th April 2008 which it sent to C2[61];
128.2. Failing to send a further copy of that letter and/or of its subsequent letter dated 17th February 2009 upon being informed on 2nd April 2009 that neither letter had in fact been received[62];
128.3. Deciding Ms C's application on the erroneous basis (a) that those letters had been received, when the Home Office's own records showed that they had not[63], and (b) that Ms C had therefore failed to provide any sufficient evidence of her durable relationship with Mr B, when sufficient evidence had in fact been provided, but had not found its way onto the file[64]; and
128.4. Taking a total of 19 months, from 26th March 2008 until 11th November 2009, to deal with Ms C's application, even on that erroneous basis[65];
cannot sensibly be justified by any considerations of policy or by the need to allocate scarce resources (and Mr Atwal did not attempt to do so on the Home Office's behalf). In these respects, the way in which the Home Office dealt with Ms C's application can, in my judgment, properly be criticised by the Claimants as having fallen short of the standard of performance which they were reasonably entitled to expect from a department of Her Majesty's Government.
.. the Crown has a duty to obey the law as declared by the Courts. .. In ordinary circumstances ministers of the Crown and government departments invariably scrupulously observe decisions of the courts. Because of this, it is normally unnecessary for the courts to make an executory order against a minister or a government department since they will comply with any declaratory judgment made by the courts ..[66]
.. there is a clear public interest to be observed in holding officials of the state to promises made by them in full understanding of what is entailed by the bargain ..
Breach of Undertaking
.. The only sanction for breach of an undertaking would be the imprisonment of the culprit or sequestration of his assets or a fine on the ground of his contempt of court. An undertaking given to the court, unless the circumstances are such that it has some collateral contractual operation between the parties concerned, confers no personal right or remedy upon any other party. The giver of the undertaking assumes thereby an obligation to the court but to nobody else ..[76]
Article 8 of the European Convention on Human Rights
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.'
.. The essential object of art 8 is to protect the individual against arbitrary interference by public authorities. There may however be positive obligations inherent in an effective "respect" for family life. These obligations may involve the adoption of measures designed to secure respect for family life even in the sphere of relations between individuals, including both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting rights and the implementation, where appropriate, of specific steps . . . In both the negative and United Kingdom positive contexts, regard must be had to the fair balance which has to be struck between the competing interests of the individual and the community, including other concerned third parties, and the state's margin of appreciation
[45] In so far as art 8 imposes positive obligations, these are not absolute. Before inaction can amount to a lack of respect for private and family life, there must be some ground for criticising the failure to act. There must be an element of culpability. At the very least there must be knowledge that the claimant's private and family life were at risk: see the approach of the European Court of Human Rights to the positive obligation in relation to art 2 in Osman v UK[85] and the discussion of Silber J in R (on the application of N) v Secretary of State for the Home Dept[86]. Where the domestic law of a state imposes positive obligations in relation to the provision of welfare support, breach of those positive obligations of domestic law may suffice to provide the element of culpability necessary to establish a breach of art 8, provided that the impact on private or family life is sufficiently serious and was foreseeable.
[46] Where the complaint is that there has been culpable delay in the administrative processes necessary to determine and to give effect to an art 8 right, the approach of both the Strasbourg court and the Commission has been not to find an infringement of art 8 unless substantial prejudice has been caused to the applicant .. in Askar v UK App no 26373/95[87] the Commission held inadmissible a complaint of substantial delay in granting permission for the family of a refugee to join him in this country, observing:
'The commission recalls that delay in proceedings concerning matters of "family life" may raise issues under art 8 of the convention. In the case of H v UK, the court found a violation of art 8 in respect of proceedings concerning the mother's access to her child which lasted two years and seven months. However, the court had regard in reaching that conclusion that the proceedings concerned a fundamental element of family life (whether a mother would be able to see her child again) and that they had a quality of irreversibility, lying within an area in which delay might lead to a de facto determination of the matter, whereas an effective respect for the mother's family life required that the question be determined solely in the light of all relevant considerations and not by mere effluxion of time.'
.. The Commission continued:
'The commission finds that the present case is not comparable. The subject-matter of the proceedings concerns the granting of permission to enter the United Kingdom for members of the applicant's family, whom the applicant had not seen for at least six years and with some of whom the nature of his ties has not been specified beyond the fact that, pursuant to Somali tradition, the applicant has on the death of his father become head of the extended family group. Further, it is not apparent that the delay in the proceedings has any prejudicial effect on their eventual determination or that the effect of the passage of time is such as to prevent the proper and fair examination of the merits of the case.'
[47] We consider that there is sound sense in this approach at Strasbourg, particularly in cases where what is in issue is the grant of some form of welfare support. The Strasbourg court has rightly emphasised the need to have regard to resources when considering the obligations imposed on a state by art 8. The demands on resources would be significantly increased if states were to be faced with claims for breaches of art 8 simply on the ground of administrative delays. Maladministration of the type that we are considering will only infringe art 8 where the consequence is serious.
[48] .. in considering whether the threshold of art 8 has been reached it is necessary to have regard both to the extent of the culpability of the failure to act and to the severity of the consequence. Clearly, where one is considering whether there has been a lack of respect for art 8 rights, the more glaring the deficiency in the behaviour of the public authority, the easier it will be to establish the necessary want of respect. Isolated acts of even significant carelessness are unlikely to suffice.
Loss and Damage
- £18,000 in respect of the Loan which he took out to pay for his LPC course
- £6,700 in respect of the amount which he still owes for course fees to BPP; and
- £20,000 in respect of loss of earnings for 2010-2011.
Conclusion
.. Apart from the limited private law cause of action for misfeasance in public office and the statutory causes of action in EU law and under the Human Rights Act, there is today no cause of action against a public authority for harm done to individuals, even foreseeably, by unlawful acts of public administration ..[92]
Note 1 In practice, an EEA residence card is not always a card. It often takes the form of an endorsement in the holder’s passport (which is sometimes referred to as a 'vignette'). Alternatively, it may sometimes be a separate card or document called an 'immigration status document'. [Back]
Note 2 See paragraph 55 below. [Back]
Note 4 See paragraphs 58 to 69 below. [Back]
Note 5 SI 2006 No 1003. See paragraphs 70 to 79 below. [Back]
Note 6 See, for instance Grzelczyk v Centre Public d’Aide Sociale d’Ottignies Louvain la Neuve (Case C-184/99) [2001] ECR I-6193 at [31]; Baumbast v Secretary of State for the Home Department (Case C-413/99) [2003] ICR 1347 at [82]; Garcia Avello v Belgium (Case C-148/02) [2004] 1 CMLR 1 at [21]; Chen and Zhu v Secretary of State for the Home Department (Case C-200/02) [2005] QB 325 at [25]; Rottmann v Freistaat Bayern (Case C-135/08) [2010] 3 CMLR 2 at [43]; and Ruiz Zambrano v Office national de l’emploi (Case no C-34/09) [2011] 2 CMLR 46 at [41]. [Back]
Note 7 See the Commission’s EU Citizenship Report 2010, COM (2010) 603 final, paragraph 1. [Back]
Note 8 See Baumbast (supra) at [82]; Chen (supra) at [26]. [Back]
Note 9 The rights inherent in EU citizenship are further enshrined in the Charter of Fundamental Rights of the EU: see Chapter V “Citizens’ Rights”. However, neither side has placed any reliance before me on any specific provision of the Charter, and I therefore do not consider it further. [Back]
Note 10 See Baumbast (supra) at [84]; Chen (supra) at [26]. [Back]
Note 11 See Baumbast (supra) at [84 and [85]; Chen (supra) at [26]. [Back]
Note 12 Set out in paragraph 64 below. [Back]
Note 13 Article 7(3) of the Directive provides that “For the purposes of paragraph 1(a), a Union citizen who is no longer a worker or self-employed person shall retain the status of worker or self-employed person in the following circumstances: (a) he/she is temporarily unable to work as the result of an illness or accident; (b) he/she is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a job-seeker with the relevant employment office; (c) he/she is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than a year or after having become involuntarily unemployed during the first twelve months and has registered as a job-seeker with the relevant employment office. In this case, the status of worker shall be retained for no less than six months; (d) he/she embarks on vocational training. Unless he/she is involuntarily unemployed, the retention of the status of worker shall require the training to be related to the previous employment.” [Back]
Note 14 Which provides that “The right of all Union citizens to move and reside freely within the territory of the Member States should, if it is to be exercised under objective conditions of freedom and dignity, be also granted to their family members, irrespective of nationality”.. [Back]
Note 15 Defined in Regulation 6(4) to mean “a person who enters the United Kingdom in order to seek employment and can provide evidence that he is seeking employment and has a genuine chance of being engaged”. [Back]
Note 16 Defined in Regulation 4(1)(a) to mean “a worker within the meaning of Article 39 of the Treaty establishing the European Community [now Article 45 of the TFEU]”. [Back]
Note 17 Defined in Regulation 4(1)(b) to mean “a person who establishes himself in order to pursue activity as a self-employed person in accordance with Article 43 of the Treaty establishing the European Community [now Article 49 of the TFEU]”. [Back]
Note 18 Defined in Regulation 4(1)(c) to mean “a person who has (i) sufficient resources not to become a burden on the social assistance system of the United Kingdom during his period of residence; and (ii) comprehensive sickness insurance cover in the United Kingdom”. [Back]
Note 19 Defined in Regulation 4(1)(c) to mean “a person who (i) is enrolled at a private or public establishment, included on the Department for Education and Skills' Register of Education and Training Providers or financed from public funds, for the principal purpose of following a course of study, including vocational training; (ii) has comprehensive sickness insurance cover in the United Kingdom; and (iii) assures the Secretary of State, by means of a declaration, or by such equivalent means as the person may choose, that he has sufficient resources not to become a burden on the social assistance system of the United Kingdom during his period of residence”. [Back]
Note 20 With effect from 2nd June 2011(ie, after the events with which the present case is concerned), a new Regulation 4(4) was substituted by the Immigration (European Economic Area) (Amendment) Regulations 2001, SI 2011 No 1247. [Back]
Note 21 Emphasis added. [Back]
Note 22 Emphasis added. [Back]
Note 23 R v Secretary of State for the Home department, ex parte Abdullah [2009] EWHC 1771 (Admin) at [31], per Blair J. The Court of Appeal dismissed an appeal from this decision, without consideration of the merits: [2010] EWCA Civ 250. [Back]
Note 26 London Borough of Harrow v Ibrahim (Case C-310/08) [2010] 2 CMLR 51. [Back]
Note 29 See Article 3(2), which is set out in paragraph 67 above. [Back]
Note 30 Chen, as regard Zhu’s right of residence in Ireland;Zambrano. [Back]
Note 31 Supra, at [39]. [Back]
Note 32 Baumbast;Chen, as regard Zhu’s right to come to the UK to live; Ibrahim. [Back]
Note 33 See to similar effect Maria Teixeira v London Borough of Lambeth and Secretary of State for the Home Department (Case C-480/08), where the focus was on what was necessary in order to give effect to the child’s right to pursue his/her education in accordance with Article 12 of Regulation No 1612/68. [Back]
Note 34 Or was exercising some other relevant right, such as the right to pursue her education. [Back]
Note 35 See Chen (supra) at [42] to [44]. Mr B submitted that the decisions of the Court of Appeal in the cases of Pedro v Secretary of State for Work and Pensions [2009] EWCA Civ 1358 and SM (India) v Entry Clearance Officer (Mumbai); OQ (India) and another v Entry Clearance Officer (Mumbai) [2009] EWCA Civ 1426 show that, on this point, Chen was wrongly decided. Mr B made this submission in the course of his closing submissions, and was not able to supply me at the time with copies of the reports. Since the conclusion of the hearing, I have read and carefully considered both of these cases. In my judgment, neither of them casts any doubt whatsoever on the correctness of this aspect of the decision in Chen (and the judges who decided these cases do not suggest anywhere in any of their judgments that they are seeking to do so). Chen is, in any event, a decision of the Court of Justice of the European Communities and so, with regard to matters of European law, is binding upon the Court of Appeal. [Back]
Note 36 In the past, the family courts in the United Kingdom often applied a working rule that, when dealing with young children, the right place for them to be is with their mother unless there is some substantial reason why they should not be: see eg M v M (custody of children) (1982) 4 FLR 603 at 609. The modern position is that there is no presumption in favour of the mother: but, as Lord Donaldson MR observed in Re S (a minor) (custody) [1991] FCR 155 “the whole question of whether there is a presumption in favour of small children, in particular, small female children, being cared for by their mothers is difficult and may be a matter [of] semantics as much as anything else. As Butler-Sloss, LJ has said, it is natural for young children to be with their mothers. Given that situation, if you take enough cases, you will almost certainly find that, in the majority of them, it is in the interests of the child that he or she should be with the mother. Whether or not that amounts to a presumption, I know not”. An unbroken relationship between a mother and her baby or toddler will usually be difficult to displace: see Re S (supra) at 390, CA, per Butler-Sloss LJ. See also Re A (a minor) (custody) [1991] FCR 569, CA.; Re W (residence) [1999] 3 FCR 274; and Brixey v Lynas [1997] 1 FCR 220. [Back]
Note 37 Brown v The Secretary of State for Scotland (Case 197/86) [1988] ECR 3161 at 21. [Back]
Note 38 Which is set out in paragraph 71 above. [Back]
Note 39 See eg Kempf v Staatssecrestaris van Justitie, re part-time music teacher (Case 139/85) [1986] ECR 1741. [Back]
Note 40 Entry on Home Office computer record dated 7th July 2010 written by Mr Iling. [Back]
Note 41 EU Citizenship Report 2010, COM(2010) 603 final, paragraph 2.3.1 [Back]
Note 42 Not the least of which is the real practical difficulty which the Home Office would otherwise face in discriminating between those couples whose (necessarily) short relationship is nevertheless a “durable” one, even though they have not as yet made the long-term commitment to each other involved in a marriage or civil partnership, and those whose relationship is not yet so “durable”. [Back]
Note 43 (Cases C-6/90 and 9/90) [1993] 2 CMLR 66. [Back]
Note 44 [2000] 1AC 524. [Back]
Note 45 Set out in paragraph 66 above. [Back]
Note 46 Set out in paragraph 67 above. [Back]
Note 47 See paragraph 79 above. [Back]
Note 48 “[Miss Mountfield submitted that] other family members, do not have the derived rights provided to art 2(2) family members. There is merely a duty on the host member State by national legislation to facilitate entry and residence and a requirement to justify denial of entry or residence .. .[My conclusion is that] close family members of Union citizens can move freely with Union citizens who might otherwise be inhibited from exercising their rights of freedom of movement. On the other hand, Member States are merely obliged, as Miss Mountfield put it, to give open-minded consideration to those extended family members who have demonstrable need. Such an interpretation, as well as being in accordance with the language of the Citizens' Directive, is consistent with the approach of the European Court of Justice in Metock 84-9: Pedro v Secretary of State for Work and Pensions [2009] EWCA Civ 1358 at [16] and [67], per Goldring LJ. [Back]
Note 49 Set out in paragraph 75 above. [Back]
Note 50 Set out in paragraph 77 above. [Back]
Note 51 See R v Secretary of State for the Home department, ex parte Abdullah (supra). Mr Iling’s view that no right of appeal was available to Ms C was, on the basis of this decision, wrong in law. [Back]
Note 52 See Factortame (supra) at 499; Haim v Kassenzahnarztliche Vereinigung Nordrhein Case (C-424/97) [2000] ECR I-5123 at [36]; Köbler v Austria (Case C-224/01) at [51] [Back]
Note 53 Cf Bourgoin SA v Ministry of Agriculture, Fisheries and Foods [1986] QB 716. [Back]
Note 54 Brasserie du Pecheur SA v Federal Republic of Germany; R v Secretary of State for Transport, ex p Factortame Ltd (No 4) (Joined cases C-46/93 and C-48/93) [1996] QB 404; sub nom Brasserie du Pêcheur SA v Federal Republic of Germany; R v Secretary of State for Transport, ex p Factortame Ltd [1996] ECR I-1029. [Back]
Note 55 Quoted in Test Claimants in the FII Group Litigation v Revenue and Customs Commissioners [2010] EWCA Civ 103, [2010] STC 1251, at [199]. [Back]
Note 56 [2003] 2 AC 1 at 191. [Back]
Note 57 [2003] 2 AC 1 at 235. [Back]
Note 58 Watkins v Secretary of State for the Home Department and others [2006] UKHL 17, [2006] 2 AC 395, at [22], per Lord Bingham of Cornhill. [Back]
Note 59 Home Office v Mohammed [2011] EWCA Civ 351. [Back]
Note 61 See paragraph 11 above. [Back]
Note 62 See paragraph 16 above. [Back]
Note 63 See paragraphs 19 and 23 above. [Back]
Note 64 See paragraphs 17, 19 and 23 above. [Back]
Note 65 It was the Home Office’s failure to get the decision right in the first place which gave rise to the need for an appeal. On one view, therefore, the Home Office might be said to be responsible for the whole of the delay from March 2008 until 5th November 2010, including the time taken in the appeals process. [Back]
Note 66 M v Home Office [1994] 1 AC 377 at 397, per Lord Woolf. [Back]
Note 67 In relation to such matters, the Upper Tribunal has the same powers as the High Court (see paragraph 145 below): and, in the High Court, the Court would usually regard itself as retaining a residual discretion in exceptional circumstances to release a party from an undertaking which he had given, even where that undertaking was recorded in a final order made by consent: see cases such as Miller v Score [1996] 1 WLR 1122;Eronat v Tabbah, [2002] EWCA Civ 950; Placito v Slater [2003] EWCA Civ 1863, [2004] 1 WLR 1605; and Warren v The Random House Group Ltd [2008] EWCA Civ 834, [2009] QB 600. However, it is very unlikely that the circumstances upon which Mr Iling sought to rely would have been regarded as sufficiently exceptional. [Back]
Note 68 See paragraph 35 above. [Back]
Note 69 See paragraph 36 above. [Back]
Note 70 R (on the application of Cart) v Upper Tribunal (Secretary of State for Justice and others, interested parties) (Public Law Project intervening); R (on the application of MR (Pakistan)) v Upper Tribunal (Secretary of State for the Home Department and another, interested parties) (Public Law Project intervening) [2011] UKSC 28 at [30], per Lady Hale. [Back]
Note 71 See paragraph 44 above. [Back]
Note 72 [1984] HKLR 411 at 417-418: cited with approval by Lord Griffiths, with whom on this issue a majority of their Lordships agreed, in R v Horseferry Road Magistrates' Court, ex parte Bennett [1994] 1 AC 42 at 61. [Back]
Note 73 See paragraph 100 above. [Back]
Note 74 See The “Ocean Frost” [1985] 1 Lloyd’s Rep at 57, per Robert Goff LJ. [Back]
Note 75 See eg Clark v Lucas Solicitors LLP [2010] 2 All ER 955. [Back]
Note 76 Re Hudson, Hudson v Hudson [1966] Ch 209 at 214, per Buckley J. [Back]
Note 77 Van Colle and another v Chief Constable of Hertfordshire Police [2006] EWHC 360 (QB), [2006] 3 All ER 963 at [57], per Cox J. [Back]
Note 78 [2000] 3 FCR 193 at 208-209 paragraph [63] [Back]
Note 79 R (on the application of TG) v Lambeth London Borough Council (Shelter intervening) [2011] EWCA Civ 526 at [38], per Wilson LJ. [Back]
Note 80 [2003] EWCA Civ 1406, [2004] QB 1124. [Back]
Note 82 At [16] and [17]. [Back]
Note 83 I take this useful summary from Van Colle (supra) at [58]. [Back]
Note 84 At [45] to [48] [Back]
Note 85 (1998) 5 BHRC 293. [Back]
Note 86 [2003] EWHC 207 (Admin) at [126]–[148]. [Back]
Note 87 (16 October 1995, unreported). [Back]
Note 88 See paragraphs 128 and 134 above. [Back]
Note 90 (Supra) at [49] and following. [Back]
Note 91 [2011] EWCA Civ 351 at [12] and [24]. [Back]
Note 92 The Law Commission was provisionally in favour of the reform of this area of the law, so as to widen the causes of action and the monetary remedies available: see its Consultation Paper (No 187)Administrative Redress: Public Bodies and the Citizen. However, by the time of its eventual report in May 2010 (Law Commission 322), the project had foundered on the implacable opposition of Her Majesty’s Government to the proposed reforms. [Back]