DA (EEA – revocation of residence document) Algeria [2006] UKAIT 00027

Asylum and Immigration Tribunal 	

THE IMMIGRATION ACTS

Heard at Field House	Determination Promulgated	
On 17 February 2006	On  09 March 2006	
Prepared 	…………………………………	

Before

Mr D K Allen – Senior Immigration Judge 
Mr T B Davey – Immigration Judge 
Mrs S I Hewitt

Between

Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant:	In person
For the Respondent: 	Ms S Leatherland, Home Office Presenting Officer 	

Where a qualified person within the meaning of the Immigration (European Economic Area) Regulations 2000 leaves the United Kingdom, it is not inconsistent with relevant EU law for the United Kingdom to make provision for revocation of the residence document of the family member of the qualified person, as set out in Regulation 22(2)(b)(ii).

DETERMINATION AND REASONS

1.	The appellant appealed to an Adjudicator against the decision of the Secretary of State of 1 October 2002 revoking his residence document under the Immigration (European Economic Area) Regulations 2000, in particular Regulation 29 with reference to Regulation 22(b)(ii).  In a determination promulgated on 16 November 2004 the Adjudicator, Mr S Blackford, dismissed his appeal.  Subsequently the appellant sought permission to appeal to the Immigration Appeal Tribunal, and permission was granted on 10 January 2005 by a Vice President.  By virtue of a transitional provisions order the appeal comes before us as a reconsideration of the Adjudicator’s decision.  

2.	The appeal was first listed for hearing on 8 November 2005.  On that date the appellant appeared without representatives.  He said that though he had paid them quite a lot of money they had asked for more which he did not have.  In the light of the issues raised in the grounds of appeal it seemed to us that there were some significant issues of law potentially to be argued in this case.  We decided to adjourn 
the appeal to enable the appellant to obtain representation and advised him of the possibility of getting representation from the Refugee Legal Centre or the IAS.  We also directed the Secretary of State to produce a skeleton argument directed to the points raised in the appellant’s grounds of appeal and in particular to deal with the authorities cited therein.  We subsequently received a skeleton argument with attached authorities.  We are grateful to the Secretary of State for providing these.

3.	The hearing before us next took place on 17 February 2006.  Again the appellant was unrepresented.  Ms S Leatherland appeared on behalf of the Secretary of State.  

4.	The appellant told us that he had obtained fresh representation but again he had had problems in that he was unable to pay the money that the representatives wanted from him and therefore they had withdrawn representation.  We stated that in the circumstances it seemed unlikely that he would be any more successful if we adjourned again and therefore we concluded that it was proper for us to go ahead and hear the appeal today.  We explained to the appellant the essence of the Secretary of State’s case as we saw it, and we also heard submissions from Ms Leatherland and from the appellant.  

5.	Ms Leatherland developed the points made in the skeleton argument.  It was accepted by the appellant that his wife was not and had not for some little time been exercising Treaty rights in the United Kingdom, indeed she had not been here since July 2002.  There was therefore no question of the Secretary of State being required to prove this.  The appellant’s wife was not a qualified person as she was not in the United Kingdom and was not working, and the Secretary of State had the power in law to revoke a residence permit.  

6.	The Immigration (European Economic Area) Regulations 2000 represented the United Kingdom’s interpretation of the appropriate directive.  It was a high test to say that this was not a correct representation of the law.  The United Kingdom was bound not to legislate in a manner deviating from the spirit of the free movement legislation, and that was so in this case as the wife was not here and not working and therefore the spirit of the legislation remained intact.   

7.	It was accepted that the directive was silent on the issue of revocation.  However, the fact of revocation did not prevent anyone from exercising their treaty rights.  There was no need to cancel the wife’s permit.  If she were in the United Kingdom and exercising treaty rights, that would be sufficient without the need to have papers, and the same must be true in reverse.  Eligibility rather than documentation was the issue.  The purpose of the directive was to facilitate free movement of EEA citizens and not of third country spouses.  The decision did not impinge on the wife’s rights so it could not be said to be deviating from the intention of the directive.  

8.	We asked the appellant if there was anything he wished to say and he said that he had been given five years and had done his best to be a good resident and had learned English and had worked.  We explained to him that the decision to revoke the permit was in no sense a criticism of his conduct while in the United Kingdom but simply a conclusion on the part of the Secretary of State that in the light of the fact that his wife was not exercising Treaty rights it was not open to him any longer to be in the United Kingdom as his presence here was directly related to her exercise of Community rights.  

9.	We reserved our determination.

10.	Council Directive of 15 October 1968 (68/360/EEC) is concerned with the abolition of restrictions on movement and residence within the Community for workers of member states and their families.  The relevant provisions of this are as follows:

“Article 2

1.	Member States shall grant the nationals referred to in Article 1 the right to leave their territory in order to take up activities as employed persons and to pursue such activities in the territory of another Member State.  Such rights shall be exercised simply on production of a valid identity card or passport.  Members of the family shall enjoy the same right as the national on whom they are dependent.

	…

Article 4

	…

2.	As proof of the right of residence, a document entitled “Residence Permit for a National of a Member State of the EEC” shall be issued.  This document must include a statement that it has been issued pursuant to Regulation (EEC) No.1612/68 and to the measures taken by the Member States for the implementation of the present Directive.  The text of such statement is given in the Annex to this Directive.  

…

4.	A member of the family who is not a national of a Member State shall be issued with a residence document which shall have the same validity as that issued to the worker on whom he is dependent.  

Article 6

1.	The residence permit:

(a)	must be valid throughout the territory of the Member State which issued it; 

(b) 	must be valid for at least five years from the date of issue and be automatically renewable. 

2.	Breaks in residence not exceeding six consecutive months and absence on military service shall not affect the validity of a residence permit.  

	… 

Article 7

1.	A valid residence permit may not be withdrawn from a worker solely on the grounds that he is no longer in employment, either because he is temporarily incapable of work as a result of illness or accident, or because 

he is involuntarily unemployed, this being confirmed by the competent employment office.

	…

Article 10

	Member States shall not derogate from the provisions of this Directive save on grounds of public policy, public security or public health.”

11.	We turn now to relevant provisions of Regulation (EEC) No.1612/68 of the Council of 15 October 1968, which is concerned with freedom of movement for workers within the Community.  

“Article 10

1.	The following shall, irrespective of their nationality, have the right to install themselves with a worker who is a national of one Member State and who is employed in the territory of another Member State:

(a)	his spouse and their descendants who are under the age of 21 years or are dependants;     

(b)	dependent relatives in the ascending line of the worker and his spouse.
		
2.	Member states shall facilitate the admission of any member of the family not coming within the provisions of paragraph 1 if dependent on the worker referred to above or living under his roof in the country whence he comes.”

12.	The Immigration (European Economic Area) Regulations 2000 (SI 2000 No.2326) are designed to implement the free movement provisions of EU law.  It is perhaps appropriate to set out in full the provisions of paragraph 10 of the Regulations.

“10.	Dependants and members of the household of EEA nationals

(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 an EEA national and the permit or document had been issued to him under Regulation 13 or 15.  

(3)	Without prejudice to Regulation 22, a decision maker may revoke (or refuse to renew) a permit or a document issued under paragraph (1) if he decides that the holder no longer satisfies any of the conditions in paragraph (4).  

(4) 	The conditions are that the person is a relative of an EEA national or his spouse and -

(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.

(5)	However, for these purposes “EEA national” does not include - 

(a)	an EEA national who is in the United Kingdom as a self-sufficient person, a retired person or a student;

(b)	an EEA national who, when he is in the United Kingdom, will be a person referred to in sub-paragraph (a).  

		13.	Issue of EEA Family Permit

(1)	An Entry Clearance Officer must issue an EEA family permit, free of charge, to a person who applies for one if he is a family member of - 

(a)	a qualified person; …

(2)	But paragraph (1) does not apply if - 

(a)	the applicant; 

(b)	the person whose family member he is,

falls to be excluded from the United Kingdom on grounds of public policy, public security or public health.  

…

		14.	Right of Residence 

(1)	A qualified person is entitled to reside in the United Kingdom without the requirement for leave to remain under the 1971 Act, for as long as he remains a qualified person.

(2)	A family member of a qualified person is entitled to reside in the United Kingdom, without the requirement for such leave, for as long as he remains the family member of a qualified person.”

13.	In this regard it is relevant to refer to Regulation 5 which defines the term “qualified person”.  A “qualified person” includes a person who is a worker, a self-employed person, a provider of services and a recipient of services.  Such person must be an EEA national and in the United Kingdom as a worker, self-employed person, provider of services, recipient of services or any of the other matters set out in sub-paragraph (1) of Regulation 5.  It is clear that a worker does not cease to be a qualified person 

solely because they are temporarily incapable of work as a result of illness or accident or involuntary unemployment.

	It is also relevant to quote from Regulation 22.  

22.	Refusal to issue or renew residence permit or residence document and revocation of residence permit, residence document or EEA family permit.

(1)	The Secretary of State may refuse to issue a residence permit or residence document (as the case may be) if the refusal is justified on grounds of public policy, public security or public health.

(2)	The Secretary of State may revoke, or refuse to renew, a residence permit or residence document if – 

(a)	the revocation or refusal is justified on grounds of public policy, public security or public health; or 

(b)	the person to whom the residence permit or residence document was issued - 

	(i)	is not, or has ceased to be, a qualified person; 

(ii)	is not, or has ceased to be, the family member of the qualified person.”

14.	Thereafter the appeal rights are set out at Regulation 29.

15.	We turn to the facts of the case, which do not appear to be in dispute.  The appellant said that he first entered the United Kingdom on 1 May 2001.  On 20 November 2001 his wife (a French national whom he married on 15 October 2001) and he applied respectively for a residence permit and a residence document.  On 4 January 2002 the appellant was issued with a five-year residence document, valid until 4 January 2007, as a confirmation of his right to remain in the United Kingdom as the family member (spouse) of his wife, an EEA national exercising a Treaty right in the United Kingdom under the Treaty of Rome.

16.	It appears to be common ground that the appellant’s wife left the United Kingdom in July 2002 to go to Romania in order to care for her mother who was severely ill, and the appellant has not seen her since.  He told the Adjudicator that he had sent money to his wife on a number of occasions since her departure, and in March 2003 he had travelled to Algeria to visit his family and friends and it was on his return from that visit, it seems, that he learnt of the decision to revoke his residence document.

17.	He told the Immigration Judge that his wife was still in Romania and he was still in touch with her.  She was not working in Romania but was looking after her mother who was very ill with diabetes and her father was dead and she was an only child and there was no one else to help her mother.  They had talked about the possibility of her mother coming to the United Kingdom but she was too old and very ill and she could not come back to London.

18.	In a relatively brief determination the Adjudicator concluded that the appellant’s wife had ceased to exercise any Treaty rights that she may have been exercising prior to July 2002 and was satisfied as a consequence that the appellant had no right to remain in the United Kingdom.

19.	In the grounds it is argued that the provisions of Directive 68/360 and Regulation 1612/68 do not make express provision for the cancellation of a residence document.  They simply state that family members, as we have seen above, have the right to reside or “to install themselves with the worker”, and Directive 68/360 provides merely that breaks of residence not exceeding six consecutive months should not affect the validity of a residence permit.  It is argued that the only basis upon which a permit properly issued may be withdrawn or revoked is in accordance with Directive 64/221, that is to say on the grounds of public policy, public security or public health.  No such grounds have been invoked by the Secretary of State.

20.		It is also argued in the grounds that Community Law recognises a right to continue to reside for a purpose covered by the Treaty once the EEA principal has left the territory, and reference is made to decisions of the Court of Justice in Echternach and Moritz, cases 389/87 and 390/87, and also Baumbast and R case C-413/99.  It is also contended that a family member who has validly been issued with a family document is entitled to rely on it so long as the EEA national on whose status its issue depends is in possession of a residence permit.  It had not been suggested that the appellant’s wife’s residence permit had been revoked and therefore, it was argued, this must be a condition precedent to revocation of the appellant’s family document and hence the revocation of that document was unlawful.

21.	As we say, a skeleton argument was provided on behalf of the Secretary of State together with copies of the decisions in Echternach and Moritz and in Baumbast and R.  In addition we referred the parties to a decision of the Court of Appeal in R v Secretary of State for the Home Department ex parte Sandhu [1983] 3CMLR 131, [1983] IAR 61.  We have set out above Ms Leatherland’s submissions based on the skeleton.  

22.	It is, we think, common ground that there is nothing in either the Directive or the Regulations concerning revocation of a residence permit other than on the grounds specified in Article 10 of the Directive.  It is not in dispute that at the time when the appellant and his wife were issued with their residence permit and residence document they were entitled to these documents, in the case of the appellant’s wife as an EEA national exercising Treaty rights, and the appellant as a member of her family within the definition set out in Article 10 of the Regulations.  It is also not in dispute, we think, that the relevant provisions of Community legislation are reflected in the Immigration (European Economic Area) Regulations 2000 concerning their rights in this regard.  The point of difference is that the Community legislation is silent on the ability of the authorities of a Member State to revoke a residence document except in the circumstances contemplated in the Directive at Article 10 which allows for derogation on grounds of public policy, public security or public health, which itself follows from the Council Directive of 25 February 1964 (64/221/EEC) subtitled the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health.

23.	The essential point of disagreement between the parties is whether the Immigration (European Economic Area) Regulations 2000 (hereafter the 2000 Regulations) 

properly reflect the relevant Community law in particular in the provision set out there permitting revocation of a permit or document if the relevant conditions are no longer satisfied.  The relevant provisions in particular are to be found at Regulation 22 of the Immigration Regulations which we have set out above.  This is clearly not a case where it has been sought to justify the revocation on grounds of public policy, public security or public health.  The decision is founded on Regulation 22(2)(b)(ii) in that it is said that the appellant is not a family member of a qualified person, since, though it is not disputed, we think, that he remains married to his wife, it is said that she is no longer a qualified person within the definition in Regulation 5 since she is not an EEA national who is in the United Kingdom as a worker or any in other of the capacities identified in Regulation 5(1).  

24.	It is to our mind clear that the ability of the Secretary of State to revoke the residence document in the case of a family member such as the appellant is not contingent upon revocation of the residence permit of the qualified person.  As Ms Leatherland pointed out in submissions, just as the qualified person does not need formal documentation to exercise her community rights in an EEA state, equally it seems to us it must be right to say that it is true that if such a person fails or ceases to exercise community rights that carries no obligation to make a formal revocation of their residence permit.  Though the appellant’s right is derived from his wife’s, as will be the case for a family member of a qualified person, it does not to our mind follow that there must be revocation of her documentation in order for his rights to be revoked.  

25.	The essential issue is however whether the absence of provision in the Community legislation for revocation in the circumstances envisaged in the Immigration Regulations, comprises a failure properly to translate community rights into domestic law which entails the decision in this case being unlawful.  

26.	We have concluded it is not unlawful.  It is clear that this is not a case where the national law contradicts or fails to implement a provision of Community law.  The principle of supremacy of Community law, first adumbrated by the Court of Justice in Van Gend en Loos (case 26/62), and recognised by the House of Lords in R v Secretary of State for Transport, ex parte Factortame Ltd [1991] AC 603, does not preclude a provision in national legislation which does no more than supplement provisions of Community law.  It is rather a question of whether a purposive interpretation of the directly effective Directive and Regulation in this case can be said to be embodied in the 2000 Regulations.  We see nothing inimical to the aims of the relevant Community legislation in this case, specifically with regard to Regulation 22 of the 2000 Regulations.  If the rights conferred on a worker are no longer being exercised because the worker has left the host state (and, indeed, left the Community), there is nothing inconsistent with Community legislation designed to make provision for free movement of workers within the Community in bringing to an end the derivative rights of the worker’s family member at that point.        

27.	We consider that our views in this regard are reinforced by the decision of the Court of Appeal in Sandhu to which we have referred above.  In that case the applicant for judicial review was a citizen of India who in 1975 had married a citizen of the Federal Republic of Germany, in Germany.  They were granted temporary leave to enter the United Kingdom on 4 April 1975 and this was later extended for five years until 10 	October 1980.  A son was born to them in March 1976 but thereafter the wife returned to Germany with the child, and the applicant acknowledged that the parting appeared to be permanent.  His application for revocation of conditions and unrestricted leave to remain was refused.  An appeal to an Adjudicator against that 

decision was dismissed.  An application for judicial review was granted and the Secretary of State appealed to the Court of Appeal which allowed his appeal.  This was, of course, before the days of the Immigration Regulations.  The Court of Appeal considered the wording of Regulation 1612/68 and noted that in the preamble there is reference to “the worker’s right to be joined by his family” rather than “the family’s right to join the worker”.  It was said, at page 65 in the Immigration Appeal Reports, that the right given to the spouse was not a right to come on their own or to come independently of the other spouse but a right to install themselves with the worker who, and here the Court of Appeal emphasised the tense involved, “is employed in the territory of another member state”.  This wording is taken from Article 10 of the Regulations.  The court went on to say that one could not simply look at the preamble to the Regulations which was in general terms and spell out a broad independent right in the worker concerned, since the Regulations themselves more specifically showed that the right was a limited one and limited in terms of the Article which conferred the right.  The point is also made on page 65 that a number of provisions of European law establishing rights for EEC nationals and rights in the national in respect of their dependants, only create rights in the dependant himself where they are derivative rights, depending on the exercise by the European national of his or her own rights, except when the legislation itself specifically confers independent rights.  Examples of that are given at page 66, but it is clear that the case before the Court of Appeal did not involve the specific conferring of independent rights.  This led the court to the conclusion that any right given to someone other than an EEC national is to be found specifically in the Regulations and the extent of that right was very carefully spelled out.

28.	It is also relevant to note that in the case of Sandhu it seems that the House of Lords refused to make a reference to the Court of Justice, on the basis that the issue was “acte clair”.  

29.	We also note Regulation 1251/70 on the right of workers to remain in the territory of a Member State after having been employed in that State.  Article 3 of the Regulation makes provision for members of a worker’s family who are residing with him in the territory of a Member State to remain there permanently if he has the right to do so, even after his death, and even, in certain circumstances, if he dies before acquiring the right to remain in the territory of the State concerned.  The Regulation is however silent on the question of rights of workers’ family members to remain in other circumstances, which is not without significance. 

30.	It is also relevant to note Directive 2004/38/EC, which has to be implemented by 30 April 2006 and which, inter alia, repeals Directive 68/360/EEC and amends Regulation (EEC) 1612/68.  It is clear, for example from Article 7, that rights of residence given to Union citizens and their family members depend upon the Union citizen being a worker or self-employed, or having sufficient resources not to become a burden on the social assistance system of the host member state, or are in education or training or have comprehensive sickness insurance cover in the host member state.  None of these criteria is met in this case.

31.	In Echternach and Moritz a German student had received education in the Netherlands while his father was working for an international organisation there.  After his father’s employment came to an end, and the family left the Netherlands, the student experienced difficulties in going on to higher education in Germany, as the German college did not recognise his Netherlands diploma.  He therefore returned to the Netherlands and resumed his education there.  It was held that, despite his father’s departure, he was entitled to a grant, under Article 12 of Regulation 1612/68, on the basis that, having entered the Dutch educational system at a time when his father was exercising Treaty rights, he retained rights of his own under Community law.

32.	In Baumbast and R a migrant EC national divorced a US citizen, but remained in the United Kingdom.  She was the principal carer for their children, who had the right to remain.  It was held that as a corollary of the children’s rights the mother had the right to remain.

33.	In our view these cases are of only marginal relevance.  As is pointed out in the skeleton, in each case the EEA national from whom benefits were derived remained in the EU.  Also, the cases are concerned with the situation of couples looking after dependent children, and with rights of, and derived from children.  In no sense can they be said to illustrate a general principle that Community law recognises a right to continue to reside for a purpose covered by the Treaties, once the EEA principal has left the territory, as is contended in the grounds.  

34.	For these reasons therefore we have concluded that there is nothing in European law precluding the United Kingdom from having legislated in the way in which it has in the Immigration Regulations in this regard.  It is clear that the appellant’s case falls expressly within the provisions of paragraph 22(2)(b)(ii) of those Regulations, and accordingly the decision to revoke the appellant’s residence document was lawful.  We therefore conclude that there is no material error of law in the Adjudicator’s determination, and his decision dismissing the appeal stands.                           

 
Signed								Date

D K Allen
Senior Immigration Judge