RG (EEA Regulations – extended family members) Sri Lanka [2007] UKAIT 00034

ASYLUM AND IMMIGRATION TRIBUNAL

THE IMMIGRATION ACTS

Heard at: Field House                                                 	Date of Hearing: 28 November 2006
Date of Promulgation: 22 February 2007

Before:

Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
Senior Immigration Judge Allen

Between

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation
For the Appellant:	Ms S O’Rourke, instructed by Tamil Welfare Association 
For the Respondent:		Mr C Avery, Home Office Presenting Officer 

(1)  The provisions of subparagraphs (a), (b) and (c) of regulation 8(2) of the Immigration (EEA) Regulations 2006 are alternatives, and the tenses are important.  Thus, a claimant may fulfil the requirements of reg 8(2) by showing that he presently meets the requirements of subpara (a), or that he did meet those requirements in the past and now falls within (b) or (c).  (2)  Because of the definition of ‘EEA State’ in reg 2, residence in the UK by either the applicant or the proposed sponsor does not count as residence in an EEA State for the purposes of reg 8(2).  (3) The wording of reg 12 is not apt to include the case of a person (not being an EEA national) who is in the UK and is joined here by a relative who is an EEA national.  (4)  Article 37 of the Citizens Directive 2004/38/EC is not a ‘standstill’ clause and does not prevent any Member State adopting national law less advantageous than that in force previously provided in all cases that the national law implements the rights given by the Directive.  (5) Although EEA nationals from non-EU countries are entitled in the UK (and in many other countries) to rights equivalent to or modelled upon those available to EU citizens under EU law, the claim that national legislation does not implement a Directive is not available to them unless the Directive applies to them.

DETERMINATION AND REASONS

1.	This is the reconsideration of the appeal of the appellant, a citizen of Sri Lanka, against the decision of the respondent on 15 June 2006 refusing to issue him with a residence card as confirmation of his right of residence in the United Kingdom as the extended family member of an EEA national.

2.	The appellant arrived in the United Kingdom on 15 March 1998 and applied for asylum.  He had apparently previously applied for asylum in some other European country.  He was refused asylum.  He appealed, and the appeal was dismissed.  A further appeal to the Immigration Appeal Tribunal was also dismissed.  His brother, whom we shall call “T”, left Sri Lanka in 1989 and moved to Switzerland.  We do not know precisely the basis of his admission to that country, but he lived there until he obtained Swiss nationality in March 2005.  He then came to the United Kingdom.  He arrived here in November 2005.  He is, we understand, working here.  It is on the basis of his presence here and his Swiss nationality that the appellant seeks a residence card as his dependant relative.  The Immigration Judge’s determination states as a fact that is not in issue that “the appellant is the brother of an EU citizen exercising Treaty rights in the United Kingdom.”  That is not quite right: Switzerland is not a member of the European Union.  It is, however, treated for most purposes as being in the European Economic Area, and it is common ground that, so far as United Kingdom law is concerned, the decision against which the appellant appeals is an EEA decision within the meaning of the Immigration (European Economic Area) Regulations 2006 (SI 1003/2006).  Despite the reference in Reg 12 to Entry Clearance Officers, it was also common ground that the relevant regulations are as follows:

	“’Extended family member’
8.-(1)	In this 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) [which the appellant is not] 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 his 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 satisfied 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 on him or to be a member of his household.
[there is no suggestion that the appellant could qualify under paragraph (3), (4) or (5)]

	…

	Issue of EEA family permit
	12. –(1)	An Entry Clearance Officer must issue an EEA family permit to a person who applies for one if the person is a family member of an EEA national and –
		(a)	the EEA national – 
			(i)	is residing in the UK in accordance with these Regulations; or
			(ii)	will be travelling to the United Kingdom within six months of the date of the application and will be an EEA national residing in the United Kingdom in accordance with these Regulations on arrival in the United Kingdom; and
		(b)	the family member will be accompanying the EEA national to the United Kingdom or joining him there and - 
			(i)	is lawfully resident in an EEA State; or
			(ii)	would meet the requirements in the Immigration Rules (other than those relating to entry clearance) for leave to enter the United Kingdom as the family member of the EEA national or, in the case of direct descendants or dependent direct relatives in the ascending line of his spouse or his civil partner, as the family member of his spouse or his civil partner, were the EEA national or the spouse or civil partner a person present and settled in the United Kingdom. 
	(2)	An Entry Clearance Officer may issue an EEA family permit to an extended family member of an EEA national who applies for one if - 
		(a)	the relevant EEA national satisfies the condition in paragraph (1)(a); 
		(b)	the extended family member wishes to accompany the relevant EEA national to the United Kingdom or to join him there; and
		(c)	in all the circumstances, it appears to the Entry Clearance Officer appropriate to issue the EEA family permit.  
	(3)	Where an Entry Clearance Officer receives an application under paragraph (2) 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.

	…”

3.	The reasons for the respondent’s refusal of the appellant’s application as set out in a letter dated 15 June 2006, are that the respondent was not satisfied that the appellant was dependent upon T, and that the evidence available to the respondent suggested that T had a spouse and child in the United Kingdom and a low income, and would therefore not in any event be able to maintain the appellant.  Further, “a refusal would not deter the EEA national from exercising his Treaty rights in the United Kingdom”.  

4.	The Immigration Judge heard oral evidence from the appellant, T and another witness.  There was substantial documentary evidence.  There were submissions from Ms O’Rourke to the effect that dependency was a question of fact on the evidence, and that sub-paragraphs (a), (b) and (c) in Regulation 8(2) were to be read disjunctively, giving alternative ways in which extended family membership could be established.  The Immigration Judge considered LS  Sri Lanka [2005] UKIAT 00132 and PB India [2005] UKIAT 00082 and reasoned as follows:

	“21.	… it is suggested that where there are semi-colons between sub-clauses, those sub-clauses are to be read disjunctively, not conjunctively.  

	22.	Whilst I accept that as a general rule of interpretation one must look at the Rule itself.  In this Rule it is clear that is not the intention of the draftsman for the paragraphs to be read disjunctively.  Firstly sub-paragraphs (b) and (c) require the person to have already satisfied the condition of (a).  If sub-paragraph (a) itself were the sole qualifying condition it would make no sense if that person had to also have other qualifying conditions as set out in sub-paragraphs (b) and (c).

	23.	Furthermore it is quite clear when carefully reading Regulation 8 that the reference to an EEA State in sub-paragraph (a) is not meant to refer to the United Kingdom.  That is also clear because of the references to the United Kingdom in paragraphs (b) and (c).  

	24.	If one therefore reads sub-paragraph (a) in the way I have indicated above, it requires that the person seeking to be an extended family member must have first lived in another EEA State with an EEA national.  In this case the appellant was not living with the EEA national at any of the relevant times.  He did stay with his brother for several months in 1998, but at that time his brother was not an EEA national.  In any event there was a break in residence together of over seven years.  Looked at this way, the appellant has never resided in Switzerland at a time when his brother was a Swiss national.  I therefore find that the appellant fails to qualify under sub-paragraph (a) because he had not resided in an EEA State with an EEA national upon whom he is dependent.

	25.	Furthermore the appellant does not qualify under both paragraph (b) or (c).  He is not seeking to accompany the EEA national or follow him to the UK.  Further he had not already joined the EEA national in the UK.  The situation here is quite the reverse.  The EEA national has come to join the non-national. 

	26.	For these reasons I do not think that the appellant qualifies under Regulation 8.”

5.	The Immigration Judge then considered Article 3.2 of Directive 2004/38/EC, which the Regulations are supposed to implement.  She found that there was nothing there casting doubt on her decision, and made further reference to paragraphs 12 and 13 of PB.  She dismissed the appeal.  She had, however, found as a fact that the appellant had proved that he is a dependant of T, an EEA national, and that T could maintain him.  

6.	The Grounds for Review were that:

“The IJ usurped the function of the ECO (SSHD) in accordance with Regulation 12(2) and (3) of the EEA Regulations 2006.  … Having found dependency the next step should have been to refer back to the in-country ECO via the SSHD to use his discretion in accordance with Regulation 12(2) and (3) as guided by case law (SY and Others (EEA Regulations) 10(1) Sri Lanka [2006] 00024 … .  Accordingly the IJ had no power to make a decision for the first time that has not yet been made by the respondent.”

	The Grounds go on to make further submissions on SY, PB and LS.  The Grounds conclude by submitting that the matter should be referred back to the respondent for a decision.

7.	We heard extensive submissions from Ms O’Rourke.  We did not need to call on Mr Avery to reply to them.  We have no difficulty at all with the submission that if the appellant shows that he comes within a class of persons in respect of whom the respondent is given a specific discretion, and if he also shows that no consideration has been given to the exercise of the discretion, the Immigration Judge ought to allow the appeal to the extent of ruling that the appellant’s application remains outstanding before the respondent, awaiting a lawful decision.  Mr Avery readily accepted that that was so.  The problem is that Ms O’Rourke’s grounds skate very lightly over the Regulations as they apply to this appellant.  It is simply not the case that, as she asserts in her grounds, once dependency was established, the appellant fell within the class of persons in respect of whom the Secretary of State has a discretion under Regulation 12(2).  

8.	We consider first Regulation 8.  We are satisfied that the Immigration Judge erred in her interpretation of this Regulation.  Modern statutory drafting has abandoned the old fashioned but entirely clear way of listing “(a) or (b) or (c)” or “(a) and (b) and (c)”.  Lists of that type appear in modern statutes as “(a), (b) or (c)” and “(a), (b) and (c)”.  We doubt if any meaning is to be attributed to the use of semi-colons in such lists: in our experience, a semi-colon is very often used at the end of each element of a list other than the last.  Nothing in the layout, punctuation or linking wording of the sub-paragraphs of Regulation 8(2) leads us to suppose that the three sub-paragraphs are not meant to be true alternatives.  If the paragraph was to be read in the way the Immigration Judge indicated, we would expect the elements to be linked as “(a); and either (b) or (c)”.  

9.	The reasoning adopted by the Immigration Judge at paragraph 22 of her determination would be very powerful if it had been based on a viable reading of the words of the Regulation; unfortunately, it is not.  It fails to acknowledge the difference in tense between sub-paragraph (a) on the one hand and sub-paragraphs (b) and (c) on the other.  Sub-paragraph (a) refers to a condition which exists at the present time; sub-paragraphs (b) and (c) refer to circumstances in which the condition in paragraph (a) is not presently satisfied, but was in the past.  It is clear to us that a person can satisfy the conditions in paragraph (2) if he is a relative of an EEA national and falls within any one of sub-paragraphs (a), (b) or (c).  To that extent we agree with Ms O’Rourke.  We suppose that her claim that mere dependency is enough to bring Regulation 12(2) into play is based simply upon that matter of interpretation.  The appellant’s dependency on T is, apparently, the point upon which she relies.  She makes, however, no submission on the Immigration Judge’s reasoning in paragraphs 23 and 24 of her determination.  Regulation 8(2) does not merely require dependency.  It requires, either at present or in the past, that the claimant be resident “in an EEA State in which the EEA national also resides”.  The Immigration Judge decided as a matter of the interpretation of Regulation 8 that “EEA State” in Regulation 8 could not mean the United Kingdom.  As it happens, of course, Regulation 2 shows that she was right.  The phrase is there defined to mean:

	“(a)	A member State, other than the United Kingdom; 
(b)	Norway, Iceland or Liechtenstein; or
(c)	Switzerland”.	

10.	It is beyond doubt that residence in the United Kingdom cannot be residence “in an EEA State” for the purposes of Regulation 8.  Residence of neither the appellant nor T in the United Kingdom is of any relevance for Regulation 8.  Further, as the Immigration Judge pointed out, although the appellant lived with T for a period, apparently in 1998, that was not residence with an EEA national in an EEA State because T was not at that time an EEA national.

11.	For these reasons we should have decided, with the Immigration Judge, that the appellant does not fall within Regulation 8(2).  It is fair to say that these issues were not canvassed at the hearing, largely because of the way Ms O’Rourke had completely ignored these matters in her Grounds.  If our determination had depended upon this point, we should have recalled the parties to hear their further submissions.  As will become clear, however, our determination does not depend on that issue alone.

12.	Assuming, contrary to our actual conclusion, that the appellant is entitled to be regarded as an extended family member, Ms O’Rourke’s submission was that he therefore comes within the ambit of Regulation 12(2) and is therefore a person in respect of whom, under that Regulation, the Entry Clearance Officer “may issue an EEA family permit”.  That, however, cannot be so.  Regulation 12(2) does not apply to all extended family members.  It applies only to those extended family members who fulfil the requirements of Regulation 12(2).  Sub-paragraph (a) appears to be satisfied; and sub-paragraph (c) is the discretion.  Sub-paragraph (b) presents the appellant with real problems.  It is very difficult indeed to see that he can be described as the person who “wishes to accompany the relevant EEA national to the United Kingdom or to join him there”.  He is here and he has remained here.  Certainly so far as the ordinary meaning of the words is concerned, a person who stays in the United Kingdom at all relevant times cannot be regarded as accompanying anybody to the United Kingdom or joining such a person here.  We reject Ms O’Rourke’s submission that the words should be read as including a person who is joined here by the relevant EEA national: nothing in the wording of the Regulation suggests that.  Ms O’Rourke then referred us to the Directive, and in particular to Article 37, which reads as follows:

	“More favourable national provisions

The provisions of this Directive shall not affect any laws, regulations or administrative provisions laid down by a Member State which would be more favourable to the persons covered by this Directive.”

13.	Ms O’Rourke submitted as follows.  First the Regulations previously in force in the United Kingdom, the Immigration (European Economic Area) Regulations 2000 (SI 23226/2000) as amended, would have given the appellant the right to be considered as a possible object of the decision-maker’s discretion.  Secondly, Article 37 of Directive 2004/38/EC had the effect of not merely preserving any more generous national legislation, but of preventing a member state from subsequently amending its legislation in order to be less generous, even if it still complied with the substantive requirements of the Directive.  Thirdly, the 2006 Regulations should therefore be read in the light of Article 37 as so interpreted to preserve any right the appellant had under the 2000 Regulations.

14.	We reject those submissions.  First, we very much doubt whether the appellant could have succeeded under the 2000 Regulations.  It is true that the requirements now contained in Regulation 12(2)(b) (and indeed in Regulation 8(2)) were not set out in such precise terms, but the operation of those regulations was explored in PB, and it appears to us that the present Regulations make express the restrictions that the Tribunal in PB decided were implicit in the 2000 Regulations.  Secondly, Article 37 does not mean what Ms O’Rourke submitted that it does.  It is not a “standstill” clause.  It does not impose any requirement on member states to leave more generous provisions untouched.  What it does is to provide that the Directive does not itself affect any more generous provisions.  It does that for two reasons.  The first is that without some such provision, it might be argued that the superior status of the Directive in any member state had itself overridden any more generous provisions in the member state’s own law; the second is that without it, a member state which had and retained more generous provisions might be regarded as having failed to implement the Directive with its lower standards.  That is the purpose of Article 37.  When we asked Ms O’Rourke what substance she could give to her submission on the meaning of Article 37, she referred in general terms to the Preamble, and when asked to be more specific referred to paragraphs 5 and 6.  She then referred also to Articles 2 and 3 of the Directive itself.  Nothing in those paragraphs, or Articles, or in the Preamble generally leads to the conclusion Ms O’Rourke asks us to draw.  Paragraphs 5 and 6 of the Preamble set out some of the main purposes of the Directive itself, but nothing there or anywhere else, so far as we can see, suggests that it is a purpose of the Directive to preserve disparate treatment.  All member states are required to implement the Directive.  Provided that they do so, and provided that their national legislation is in compliance with the Directive, there is nothing to prevent any member state from changing its own national legislation from time to time, even if the effect of such changes is to be less generous to nationals of members states and their families than it once was.

15.	Thirdly, there is no reason at all why the Directive should be read as giving any comfort to the appellant in his claim to a residence permit.  Paragraph 5 of the Preamble, which is the paragraph most in point, reads as follows:

“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.  For the purposes of this Directive, the definition of ‘family member’ should also include the registered partner if the legislation of the host Member State treats registered partnership as equivalent to marriage.”

16.	In the present case there is no suggestion at all that the absence of a family permit for the appellant has, has had, or could have any effect on T’s ability to exercise his rights of free movement and residence.  Any right that the appellant has is not a free-standing right of his own: it exists only in order to enable a person who has a right of residence or of free movement to exercise that right without hindrance.  Where there is no hindrance, there is no reason to construe (let alone to distort) the wording of legislation in order to give a right to the family member.  

17.	There is a fourth problem.  T is a national of Switzerland.  He is an EEA national for the purposes of the United Kingdom’s Regulations.  He is not, however, an EU national.  He derives no rights of free movement or residence from Directive 2004/38/EC.  The appellant cannot therefore invoke the Directive as an aid to interpreting the Regulations in his case.  As we have indicated, the Immigration Judge appears to have treated T as though he were an EU national.  So far as we understand her submissions on the Directive, Ms O’Rourke must have been doing the same.  The position is substantially more complicated.  If there is to be an appeal to any international agreement, it must be that entitled “Agreement between the European Community and its Member States of the one part, and the Swiss Confederation, of the other, on the free movement of persons” [2002] O.J. L114/6.  Article 7 of that agreement imposes on the contracting parties a duty to make provision for certain rights in relation to the free movement of persons, in accordance with the provisions of Annex I of the agreement.  “Members of the family” are defined in Article 3(2) of the Annex in terms similar to those defining a family member in Regulation 7 of the EEA Regulations.  That definition is incapable of assisting the appellant.  Article 3(2) concludes with the following words:

“The Contracting Parties shall facilitate the admission of any member of the family not covered by the provisions of this paragraph under (a), (b) and (c), if that person is a dependant or lives in the household of a national of a Contracting Party in the country of provenance.”

18.	It is not possible to argue that the possibilities envisaged by the “or” include simply being a dependant, because there would then be no provision as to whose dependant the person in question was.  That person  must be
(i)	a dependant of the national of a Contracting Party in the country of provenance; or
(ii)	living in the household of the national of the Contracting Party in the country of provenance.
As we understand it those possibilities are embodied within Regulation 8(2)(a) of the EEA Regulations.  Sub-paragraphs (b) and (c) of the Regulations give further rights that are not required by the terms of the Swiss agreement.  This appellant is not entitled to rely on the Directive as an aid to construing the Regulations.  Nothing before us suggests that if he had instead relied on the Swiss agreement he could have shown any fault in the Regulations.

19.	For the foregoing reasons we take the view that there is no reason not to read the relevant portions of the Regulations in their obvious sense.  The appellant does not meet the requirements of Regulation 8; but, even if he did, he would still not meet the requirements of Regulation 12(2)(b).  Although the Immigration Judge erred in her approach to the construction of Regulation 8, she could not but have dismissed the appeal if she had not made that error.  Her error was therefore not material.

20.	We order that the Immigration Judge’s determination dismissing this appeal shall stand.

C M G OCKELTON
DEPUTY PRESIDENT
          Date: