Case No: C5/2007/1368
C5/2007/1368(A)

Neutral Citation Number: [2008] EWCA Civ 664
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATRION TRIBUNAL 
[AIT No: IM/14670/2006]
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 21st May 2008

Before:

LORD JUSTICE RICHARDS
LORD JUSTICE LAWRENCE COLLINS
and
LORD JUSTICE STANLEY BURNTON
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Between:

	KG (SRI LANKA)
	Appellant	
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT	
Respondent	

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Mr M Gill and Ms S Bayati (instructed by Birnberg Pierce & Partners) appeared on behalf of the Appellant.
Mr R Palmer (instructed by Treasury Solicitors) appeared on behalf of the Respondent.
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Judgment
Lord Justice Richards:

1.	The appellant is a 32 year old national of Sri Lanka.  He and his older brother once lived together in Sri Lanka with other members of their family.  The brother left Sri Lanka in 1990, was recognised as a refugee by France in 1991 and was naturalised as a French citizen in 2000.  The appellant left Sri Lanka in 2001, came to the United Kingdom and claimed asylum here.  The claim was refused and the appellate process was exhausted in June 2002, but he remained in this country.

2.	In June 2004 the appellant’s brother moved to the United Kingdom, exercising his rights of free movement under EU law as a worker.  Since then the brother has lived with the appellant and supported him financially.  Indeed he started supporting him in late 2003 by sending remittances from France when the appellant’s own entitlement to support from the National Asylum Support service came to an end.  

3.	On 17 August 2004 the appellant applied for a residence document under the Immigration (European Economic Area) Regulations 2000 (“the 2000 Regulations”) as a dependent of his brother.  The application was refused on 4 March 2005, a delay of more than six months.  An appeal was lodged but there was a further long delay in the processing of the appeal and it was not until 3 May 2006 that the appeal was heard by Immigration Judge Braybrook.  This was just a few days after the coming into force of the Immigration (European Economic Area) Regulations 2006 (“the 2006 regulations”), which implemented directive 2004/38/EC (“the Directive”) and replaced the 2000 Regulations.  

4.	In his decision promulgated on 7 June 2006 the Immigration Judge held that the appeal had to be considered under the 2006 Regulations and that the appellant did not qualify for a residence card under them, in particular because he had not lived with the brother in France and so did not come within the definition of “extended family member” in regulation 8.

5.	Reconsideration was ordered but in a decision issued on 30 March 2007 it was held by Immigration Judge Bird that the first Immigration Judge had made no material error of law.

6.	An appeal is now brought against that decision on two grounds.  The first ground relies on the definition of “other family members” in Article 3(2)(a) of the Directive, which is said to apply to the appellant even though he did not live with his brother in France, it being sufficient that they lived together in the same household in Sri Lanka before the brother went to France.  That interpretation of the Directive was rejected by the Court of Appeal in KG and AK (Sri Lanka) v SSHD [2008] EWCA Civ 13.  Mr Manjit Gill QC, counsel for the appellant, accepts that the decision in that case determines the issue against him in this court, though he wishes to keep the point open because a petition for appeal to the House of Lords is pending in KG and AK (Sri Lanka).  

7.	In my view it is sufficient in those circumstances formally to dismiss the first ground of appeal on the basis of KG and AK (Sri Lanka), by which we are bound, without saying any more about it.  I think it better to adopt that course, bringing finality at this level of appeal, albeit leaving it open to the appellant to petition the House of Lords, rather than granting an adjournment or stay as suggested by Mr Gill so as to leave the matter open pending the House of Lords’ decision in relation to KG and  AK (Sri Lanka).  That view is reinforced by the consideration that on the appellant’s submissions ground 2 may bring in, in part, certain matters covered by the decision in KG and  AK (Sri Lanka), yet I am satisfied that ground 2 ought now to be decided by this court and indeed we have already refused an application by Mr Gill for a general adjournment or stay of the case before us.

8.	The second ground of appeal is that the appellant qualified under the 2000 Regulations and that the 2006 Regulations are either to be read as providing for a right of appeal which protects the benefits accruing to him under the 2000 Regulations or, if they cannot be read in that way, are ultra vires on grounds of unfairness and irrationality.  This issue was included in the grounds for reconsideration but was not addressed by Immigration Judge Bird in his decision.  The issue remains live and is the one that I will address in the remainder of my judgment.  

9.	The Home Office’s original decision letter of 4 March 2005 stated that the appellant had applied for a residence document as confirmation of a right of residence in the United Kingdom as the family member of an EEA national.  The Secretary of State had considered the application in accordance with regulation 10 of the 2000 Regulations but was not satisfied that there were “sufficient grounds” for issuing the confirmation sought.  The decision was therefore a decision not to issue a residence document.

10.	Regulation 10 of the 2000 Regulations concerned dependants and members of the household of EEA nationals.  It provided:

“(1) If a person satisfies any of the conditions in paragraph (4), and if in all the circumstances it appears to the decision-maker appropriate to do so, the decision-maker may issue to that person an EEA family permit, a residence permit or a residence document (as the case may be).

(2) Where a permit or document has been issued under paragraph (1), these regulations apply to the holder of the permit or document as if he were the family member of the EEA national and the permit or document had been issued to him under regulation 13 or 15 …

(4) The conditions are that the person –
(a) is dependent on the EEA national or his spouse;
(b)	is living as part of the EEA national’s household outside the United Kingdom; or
(c)	was living as part of the EEA national’s household before the EEA national came to the United Kingdom.”

11.	It is the appellant’s case that he satisfied condition (a) since the fact of dependency was clearly established.  He also says that he satisfied condition (c) but that it is not necessary for him to rely upon that provision.  It is submitted that the discretion in regulation 10(1) was therefore engaged.  There is nothing to show that the Secretary of State gave consideration to it.  The tribunal on appeal should therefore have considered exercising the discretion for itself or alternatively should have remitted the matter to the Secretary of State for further consideration of the discretion.  As to the possibility of the tribunal considering the discretion for itself, reliance is placed on FD (EEA discretion: basis of appeal) Algeria [2007] UKAIT 00049, in which it was held that the tribunal has jurisdiction to review the exercise of the Secretary of State’s discretion under the EEA regulations applying to extended family members and is not confined in such cases to considering whether the decision was a lawful one.

12.	Had the discretion been exercised then it is submitted that it would, or would almost certainly, have been exercised in the appellant’s favour.  Mr Gill says that it is an open ended discretion which can take account of a wide range of compassionate factors.  Although the appellant’s claim for asylum failed on the basis of the country conditions as they stood in 2002, there may be good reasons why a person in his position should now be allowed to remain with his brother, whose own entitlement to refugee status has been recognised.  Discretions of this kind must be exercised in accordance with fundamental principles of human rights - in this case, it is said, the right to live together as an interdependent family unit.  Further, to the extent that one is considering an exercise of discretion now, the point is also taken the appellant has been in this country for a substantial period.  All of those matters are said to be relevant to what is said to have been the probability of a favourable outcome.  

13.	For the Secretary of State Mr Palmer in his skeleton argument submits that, far from being likely to succeed, the appellant’s application under the 2000 Regulations was doomed to failure. There was no evidence that the appellant was the brother’s dependant in Sri Lanka, it being submitted that the required dependency is dependency in the place of origin of the family member or in the state from which the family member has come at the time of applying to join the EEA national.  Nor was there any evidence that the appellant had ever lived as part of the brother’s household, as distinct from their both living in the family home.  But even assuming that one of the relevant conditions in regulation 10(4) was satisfied it is said that the appellant could  not have expected an exercise of discretion in his favour  under  regulation 10(1).  That discretion was exercised in accordance  with  instructions found at Chapter 2.4 of the then European Directorate Instructions, conveniently reproduced at paragraph (12) of the tribunal’s determination in SY and Others (EEA Reg 10(1) --dependency alone insufficient) Sri Lanka  2006 AIT 00024.  The relevant passage stated that in considering cases under regulation 10 “we would normally refuse those who have for example: lived in a third country whilst the EEA national has resided in another member state prior to entering the United Kingdom …”  This, it is submitted, was consistent with the underlying policy of the Regulations, since refusal of the appellant’s application to reside in the United Kingdom could not possibly have deterred the brother from exercising his EU rights of free movement.  For all those reasons Mr Palmer submits that the appellant had no real prospect of success under regulation 10 of the 2000 Regulations. 

14.	I will come back to that argument but I propose for the time being to set out how the appellant’s case has developed on the assumption that it had a real prospect of success if the matter had been considered under regulation 10.

15.	The 2006 Regulations came into force on 30 April 2006.  At that time the appellant’s appeal to the tribunal against the Secretary of State’s refusal of his application under the 2000 Regulations was still pending.  By regulation 31(1) and schedule 3(2) of the 2006 Regulations, the 2000 Regulations were revoked in their entirety subject to the transitional provisions in Schedule 4.  Paragraph 5 of Schedule 4 contains the relevant transitional provision in these terms: 
“(1) Where an appeal against an EEA decision under the 2000 Regulations is pending immediately before 30 April 2006 that appeal shall be treated as a pending appeal against the corresponding EEA Decision under these Regulations …

(3) For the purposes of this paragraph …
(e) a decision not to issue or renew or to revoke an EEA family permit, a registration certificate or a residence card under these Regulations corresponds to a decision not to issue or renew or revoke an EEA family permit, a residence permit or a residence document under the 2000 Regulations, respectively.”

16.	I should add, though I do not think it really adds anything to one’s understanding of paragraph 5, that “EEA decision” is defined in regulation 2(1) of the 2006 Regulations as “a decision under these Regulations that concerns a person’s … (a) entitlement to be issued with or have renewed, or not to have revoked, a registration certificate, residence card, document certifying permanent residence or permanent residence card.”

17.	On the face of it therefore the appellant’s appeal was to be treated after 30 April 2006 as an appeal against a decision not to issue a residence card under the 2006 Regulations.  

18.	The 2006 Regulations themselves differ in structure and detailed content from the 2000 Regulations.  The provisions on which the appellant has to rely if the 2006 Regulations apply to his case are primarily regulation 8 and regulation 17(4). Regulation 8 defines “extended family member”.  It provides: 
“(1) In these Regulations “extended family member” means a person who is not a family member of an EEA national under regulation 7(1)(a), (b) or (c) and who satisfies the conditions in paragraph (2), (3), (4) or (5).

“(2) A person satisfies the condition in this paragraph if the person is a relative of an EEA national, his spouse or civil partner and – 
(a)	the person is residing in an EEA state in which the EEA national also resides and is dependent upon the EEA national or is a member of his household;
(b)	the person satisfies the condition in paragraph (a) and is accompanying the EEA national to the United Kingdom or wishes to join him there; or
(c)	the person satisfied the condition in paragraph (a), has joined the EEA national in the United Kingdom and continues to be dependent upon him or to be a member of his household.”

I can omit the conditions in regulation 8(3), (4) and (5) which have no relevance to this case.

19.	Regulation 17(4) confers a discretion on the Secretary of State to 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”.

20.	Because the appellant at no time lived with his brother in France he does not satisfy the condition in regulation 8(2). His attempt to get round that problem by reliance on the Directive is precluded by KG and AK (Sri Lanka).  Accordingly he does not even engage the discretion of the Secretary of State under regulation 17(4) and he cannot obtain the residence card under the 2006 Regulations.  He contrasts this with the position under the 2000 regulations in which he says he satisfied at least condition (a) in regulation 10(4) and therefore did engage the Secretary of State’s discretion under regulation 10(1). 

21.	That difference is at the heart of the appellant’s case under ground 2.  Mr Gill submits that there is on the face of it a problem in the transitional provisions, in that they appear to deprive the appellant of a substantive benefit he enjoyed under the regulations in force at the date of the decision under appeal.  At the date of the decision he was entitled to rely on regulation 10 of the 2000 Regulations as engaging the Secretary of State’s discretion, but there is no equivalent provision in the 2006 Regulations upon which he can rely in the course of the appeal as engaging that discretion.  Such a result, it is submitted, cannot be right.  Either there is a lacuna in the 2006 Regulations or the 2006 Regulations must be read as allowing the appeal still to be considered by reference to the 2000 Regulations, or the failure to provide for an appeal to proceed on that basis is so unfair and irrational as to render the 2006 Regulations ultra vires the regulation making power in Section 109 of the Nationality, Immigration and Asylum Act 2002 and Section 2(2) of the European Communities Act 1972 in so far as the Regulations fail to make such a provision.  That the application of the 2006 Regulations to appeals outstanding at the date when the Regulations came into force might create difficulties and affect the outcome of an appeal was identified by the tribunal in GM and AM (EU national establishing self-sufficiency) France [2006] UKAIT 00059 at paragraph 16, where it was unnecessary to resolve the problem.  Mr Gill seeks a resolution of it in the present case.

22.	Both counsel have drawn our attention to Section 85(4) of the 2002 Act, which provides that on an appeal under Section 82(1) or Section 82(3) against a decision the tribunal “may consider evidence about any matter which [it] thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision.”  That provision enables the tribunal to consider the evidential position as at the date of the appeal, which is of especial importance in asylum cases, but the focus remains on the decision against which the appeal is brought.  The tribunal’s task in summary is to determine under Section 84(1) of the 2002 Act whether the decision is in accordance with the law.  Section 84(1) applies so far as material to an appeal under the 2006 Regulations by virtue of regulation 26(7) and Schedule 1, and there were similar provisions in the 2000 Regulations.  I would agree with Mr Gill’s submission that Section 85(4) of the 2002 Act has no impact on the issue before us.

23.	Mr Gill relies on the presumption against retrospectivity; a principle of statutory construction.  He cites for example this passage from the judgment of Staughton LJ in Secretary of State for Social Security v Tunnicliffe [1991] 2 All ER 712 at 724 f-g: 

“In my judgment the true principle is that Parliament is presumed not to have intended to alter the law applicable to past events and transactions in a manner which is unfair to those concerned in them, unless a contrary intention appears. It is not simply a question of classifying an enactment as retrospective or not retrospective.  Rather it may well be a matter of degree – the greater the unfairness, the more it is to be expected that Parliament will make it clear if that is intended.”

24.	In Plewa v Adjudication Officer [1995] 1 AC 249 the House of Lords did not disagree with the statements of principle of the Court of Appeal in Tunnicliffe but overruled the actual decision in that case because of the unfairness that would result if the statutory provision to which it related were given retrospective effect.

25.	The obvious difficulty faced by the appellant in seeking to rely on the presumption against retrospectivity is that the presumption has to give way to clear words, and the relevant provisions of the 2006 Regulations are in my judgment clear.  Schedule 3 revoked the 2000 Regulations subject to the transitional provisions in Schedule 4, and paragraph 5 of Schedule 4 stated in plain terms that the pending appeal was to be treated as an appeal against the corresponding decision under the 2006 Regulations (and it explained what was meant by such a corresponding decision).  There is simply no scope for reading the 2006 Regulations as allowing a pending appeal to continue to the reference to the 2000 Regulations.  The 2000 Regulations are displaced in their entirety by the 2006 Regulations and any pending appeals have to proceed on that basis.

26.	Of the authorities to which we have been referred, the nearest factually to the present case is R v SSHD ex p Mundowa [1992] 3 All ER 606.  That case concerned discretionary decisions by the Secretary of State to deport the appellants.  Under Section 19 of the Immigration Act 1971 one of the grounds of appeal for the tribunal was that the discretion should have been exercised differently, thus allowing the tribunal to consider the merits of the exercise of discretion.  This was changed by Section 5 of the Immigration Act 1988, which limited the grounds of appeal to whether there was power in law to make a deportation order for the reasons stated in the notice of decision.  The appellants contended that since the facts giving rise to the making of the deportation orders, which in turn gave rise to the right of appeal, occurred before Section 5 of the 1988 Act came into force, Section 5 was not to be read as limiting with retrospective effect their right of appeal.  The Court of Appeal rejected that argument by reference to the plain wording of the statute.  Of course, the case concerned primary legislation held to embody the considered intention of Parliament, whereas the present case concerns secondary legislation.  It is also true that Section 5 restricted rights of appeal only in respect of decisions received after the section came into force and that it did not affect accrued rights of appeal in respect of decisions received before the section came into force.  But in my view Mr Gill can derive nothing from the case that is helpful to his own submissions.  

27.	Despite Mr Gill’s various arguments I am satisfied that the 2006 Regulations are not to be read as allowing the appellant’s appeal to be considered by reference to the 2000 Regulations.  Equally, insofar as it is advanced as a separate argument, I am satisfied for the same reasons there is no lacuna in the 2006 Regulations.

28.	There remains the question where the result is so unfair and irrational as to render the 2006 Regulations ultra vires in so far as they fail to provide for the appeal to proceed by reference to the 2000 Regulations.  As to that it seems to me that the impact of the transitional provisions is greatly overstated by Mr Gill.  The 2006 Regulations do not take away accrued rights of appeal; they simply require an appeal to proceed by reference to the substantive provisions of the 2006 Regulations rather than those of the 2000 Regulations.  The differences between the substantive provisions of the two sets of regulations do not appear to be major and it may be that some of them work to the advantage of appellants, even if others work to their disadvantage.  

29.	In the present case the disadvantage to the appellant is in reality a small one.  I am prepared to assume, though as I have indicated it is disputed by Mr Palmer, that under the 2000 Regulations the appellant could have satisfied one of the conditions whereby the Secretary of State’s discretion was engaged, whereas under the 2006 Regulations he does not get that far.  Even on that assumption I do not think that the appellant had any real prospect of an exercise of discretion in his favour under the 2000 Regulations if it had come to the point of the Secretary of State or the tribunal considering the exercise of that discretion.  The fact that before coming to the United Kingdom the appellant had lived in Sri Lanka for many years, while his brother was living in France, was the reason why, in accordance with the standing instructions, the discretion would normally be exercised against him, a position that seems to me to be entirely consistent with the purpose of the Regulations to prevent obstacles to free movement of an EU or EEA national.  We have been shown nothing in the individual circumstances of the appellant’s case that could realistically have counteracted that consideration and given rise to a different outcome.  Any point about the change in conditions in Sri Lanka since the refusal of his asylum claim is to my mind plainly insufficient for that purpose and I note that there has been no attempt to make a fresh asylum claim based upon a change in the objective conditions in Sri Lanka.  Nothing turns on the brother’s support, which can be given to the appellant wherever he lives.  I do not accept that the right to live together as an interdependent family unit, as Mr Gill put it, could prevail over all the other considerations relevant in this case.  Nor do I accept that the length of time that the appellant has now spent here, taken together with everything else, could realistically be expected to give rise to an exercise of discretion in his favour, let alone to have done so at the time when any relevant decision might have been made.

30.	Accordingly I am not satisfied that the effect of the transitional provisions is to cause any unfairness, let alone such unfairness or irrationality as to justify a finding that the 2006 Regulations are ultra vires in failing to provide for the appellant’s appeal to proceed by reference to the 2000 Regulations.

31.	I reach that conclusion without needing to consider a further point advanced by Mr Palmer, that the Secretary of State could not lawfully have exercised his discretion under the 2000 Regulations on grounds unconnected to the effective exercise of the appellant’s brother’s EU rights of free movement, to which it is said that the appellant’s residence in this country was unrelated.

32.	I should also make clear that I attach no significance to the delay that occurred in reaching the original decision of the Secretary of State or in processing the subsequent appeal.  I accept that the possibility of delay can be taken into account in considering the potential unfairness of a retrospective application of the 2006 Regulations, but in the circumstances, as will be apparent from what I have already said, I do not think that the delay can have had any material effect on either the interpretation of the 2006 Regulations or on their vires.  Nor, for the reasons already given, did it in my view have any effect on the outcome of the appellant’s application or appeal, which would in my judgment have been the same under the 2000 Regulations as under the 2006 Regulations.  

33.	For all those reasons I would dismiss this appeal.

Lord Justice Lawrence Collins:  

34.	I agree that the appeal should be dismissed.

Lord Justice Stanley Burnton:

35.	I agree.  I would only add that the right of which the appellant contends he was deprived as a result of the decision under appeal was a right to the exercise of discretion by the Secretary of State or a tribunal. In relation to a contention that regulations are ultra vires, there is a substantial distinction between regulations which deprive an applicant of an exercise of discretion and one which deprives him of an unqualified substantive right. It is more difficult to establish that regulations are ultra vires in the former case than in the latter. 
36.	For the reasons my Lord has given I too would dismiss this appeal.

Order: Appeal dismissed