APPEAL UNDER SECTION 13 OF THE TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007 BY AA AGAINST THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
SECOND DIVISION, INNER HOUSE, COURT OF SESSION
[2017] CSIH 38
XA130/16
Lord Justice Clerk
Lady Paton
Lord Drummond Young
OPINION OF THE COURT
delivered by LADY DORRIAN, the LORD JUSTICE CLERK
in the APPEAL
under section 13 of the Tribunals, Courts and Enforcement Act 2007
by
AA
Appellant;
against
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent:
Pursuer: Party
Respondents: McIlvride, QC; Office of the Advocate General for Scotland
28 June 2017
Introduction
[1] The appellant is a national of Nigeria married to a British citizen. The issues in the appeal arise out of the appellant’s application for a residence card on the ground of his marriage to a British national. Subsequent to the making of a deportation order (since ruled unlawful), the appellant was removed from the UK on 31 January 2011. In March 2011 in Lagos he married a British citizen with whom he had been in a relationship since 2007. He (and his wife) returned to the UK at an unknown date, after a short period in Germany. It is maintained that the appellant meets the conditions specified by Regulation 9 of the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”) and is entitled to a residence card.
[2] There have been sundry proceedings in respect of the application, fuller details of which may be found in the opinion of this Court : [2016] CSIH 39. Reference may also be made to the opinion of Lord Glennie in an associated Judicial Review: [2015] CSOH 158. In the Judicial Review the appellant was seeking an order that he was entitled to a Certificate of Application, which would enable him to work. The issue of whether a residence card should be granted to the appellant was not one for determination. However, in order to decide whether to grant the order sought, the Lord Ordinary considered that he required to take a view on whether the appellant would be likely to meet the requirements of Regulation 9. He expressed the view that the appellant satisfied the relevant conditions.
[3] The appellant’s application for a residence card had been refused by the First Tier Tribunal (FTT). The effect of the prior decision of this Court was that the matter was remitted to the Upper Tribunal (UT) to consider an appeal against the FTT decision on the basis of grounds upon which leave had previously been given. The UT has done so, and has refused the appeal. The grounds before the UT were as follows:
i. That the FTT erred by adopting findings from an earlier determination which had been set aside.
ii. That it had erred by applying an amended version of Regulation 9 rather than that in force at the time of the application.
iii. That the FTT had erred in taking account of the appellant’s motives for seeking residence in Germany.
iv. That the FTT erred by taking into account the brevity of the period during which the appellant’s wife worked in Germany.
v. That the FTT had failed properly to address the interests of the appellant’s child, a British and Irish citizen, under Article 8 ECHR.
Legal background
European Union law
[4] Under the Treaty on the Functioning of the European Union all Union citizens have the right to move and reside freely within the territory of the member states. Parliament and Council Directive 2004/38/EC set down certain conditions governing the exercise of that right by Union citizens and their family members. For these purposes, the member state in which a citizen exercises the right of free movement and residence is known as the “host” state. Of particular relevance to the present case are the following articles:
Article 3
“1. This Directive shall apply to 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 who accompany or join them.
Article 6:
“1. Union citizens shall have the right of residence on the territory of
another member state for a period of up to three months …
2. The provisions of paragraph 1 shall also apply to family members in possession of a valid passport who are not nationals of a member state, accompanying or joining the Union citizen.”
Article 7:
“1. All Union citizens shall have the right of residence on the territory of another member state for a period of longer than three months if they:
(a) are workers or self-employed persons in the host member state; 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; or
(d) are family members accompanying or joining a Union citizen who
satisfies the conditions referred to in points (a), (b) or (c).
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).”
Domestic law
The 2006 Regulations
[5] Regulation 9 as originally enacted provided as follows:
“9 – Family members of United Kingdom nationals
(1) If the conditions in paragraph (2) are satisfied, these regulations apply to a person who is the family member of a United Kingdom national as if the United Kingdom national were an EEA national.
(2) The conditions are that—
(a) the United Kingdom national is residing in an EEA State as a worker or self-employed person or was so residing before returning to the United Kingdom; and
(b) if the family member of the United Kingdom national is his spouse or civil partner, the parties are living together in the EEA State or had entered into the marriage or civil partnership and were living together in that State before the United Kingdom national returned to the United Kingdom.
(3) Where these regulations apply to the family member of a United Kingdom national the United Kingdom national shall be treated as holding a valid passport issued by an EEA State for the purpose of the application of Regulation 13 to that family member.”
[6] This was amended by virtue of the Immigration (European Economic Area) (Amendment) (No.2) Regulations 2013/3032 (“the 2013 Regulations”), with effect from 1 January 2014, so that its terms became:
“9 – Family members of British citizens
(1) If the conditions in paragraph (2) are satisfied, these regulations apply to a person who is the family member of a British citizen as if the British citizen (“P”) were an EEA national.
(2) The conditions are that –
(a) P is residing in an EEA State as a worker or self-employed person or was so residing before returning to the United Kingdom;
(b) if the family member of P is P’s spouse or civil partner, the parties are living together in the EEA State or had entered into the marriage or civil partnership and were living together in the EEA State before the British citizen returned to the United Kingdom; and
(c) the centre of P’s life has transferred to the EEA State where P resided as a worker or self-employed person.
(3) Factors relevant to whether the centre of P’s life has transferred to another EEA State include –
(a) the period of residence in the EEA State as a worker or self-employed person;
(b) the location of P’s principal residence;
(c) the degree of integration of P in the EEA State.
(4) Where these regulations apply to the family member of P, P is to be treated as holding a valid passport issued by an EEA State for the purpose of the application of Regulation 13 to that family member.”
The FTT had, inter alia, applied the “centre of life” test contained within the amended provision.
The decision of the UT
[7] The first two grounds were conceded. It was common ground that the practical task of the UT was to decide (a) whether the appellant was entitled to a residence card under Regulation 9 and (b) whether he had a right to remain under Article 8 ECHR outwith the Immigration Rules. The UT quoted para 55 of Secretary of State for the Home Department v Akrich [2004] QB 756 that:
“..the motives which may have prompted a worker of a member state to seek employment in another member state are of no account as regards his right to enter and reside in the territory of the latter state provided that he there pursues or wishes to pursue an effective and genuine activity.”
Acknowledging the irrelevance of motive, the UT nevertheless considered that the reference to “an effective and genuine activity” left certain matters unresolved.
[8] The UT accepted the respondent’s submission that Regulation 9 in its unamended form was enacted to give effect to the doctrine identified in R v Immigration Appeal Tribunal & Surinder Singh [1992] 3 CMLR 358, and was to be interpreted consistently with further cases in that line of authority, including O and B v Minister voor Immigratie, Intergratie en Asiel, [2014] QB 1163, which had noted at para 51 that the residence in question had to be “sufficiently genuine so as to enable that citizen to create or strengthen family life in that member state”. The appellant’s submission that he was entitled to a residence card on the face of the regulation, by virtue of the presence in Germany of his wife and himself, and her employment there, irrespective of ulterior motives, could not be upheld. The UT considered that the evidence justified the conclusion that it was
“more likely than not that the appellant set out to use the regulations to obtain an advantage by artificially creating the conditions for his purpose. I find that neither he nor his wife lived in Germany with any expectation of continuity in the longer term, so as to warrant a finding of residence within the ordinary meaning of the word. The obvious and overwhelming reason for their stay in Germany is that they planned to use it to legitimise the appellant’s residence in the UK (para 37).”
As to article 8, the UT concluded that the issue did not arise. The appellant has been given leave to appeal against that decision. The detail of the grounds appears from the submissions narrated below.
Submissions for the appellant
[9] (i) The UT ignored the concession made by the respondent earlier in the proceedings, referred to in the Court’s prior opinion, which had resulted in the case being remitted to the UT. The appellant submitted that the UT erred in para 37 of its decision in relying on “the same factors which had been conceded to be erroneous”- it was not open to the respondent or the UT to re-open this point.
[10] The next four grounds address the correct approach to be taken to the interpretation and application of Regulation 9, in light of domestic and European authority. We deal with them in turn.
(ii) The UT erred in its interpretation of Regulation 9, and failed to consider the treatment of this issue contained in the opinion of Lord Glennie in the Judicial Review proceedings. Lord Glennie had reached a conclusion favourable to the appellant; had the UT considered the matter properly they would have reached the same conclusion.
[11] Lord Glennie had expressed the view (para 70) that:
“[70] There is, to my mind, no doubt at all that the petitioner’s case satisfies the conditions of Regulation 9 as it applied at the time. It is difficult to see any basis from which he would not be entitled to a residence card under the EEA Regulations.”
[12] The appellant relies on the thread of reasoning which led to the expression of that opinion. This was (para 69) that
“..the EEA Regulations set out specific conditions in Regulation 9(2) which, if satisfied, entitle a family member of a United Kingdom national to be treated as if the United Kingdom national were an EEA national and, cutting through the somewhat intricate steps to reach this result, would entitle the petitioner to be issued with a residence card, subject to the public policy exception already discussed. Those conditions, as in force at the time, were that (a) the United Kingdom national is residing in an EEA State as a worker or self-employed person or was so residing before returning to the United Kingdom; and (b) if the family member of the United Kingdom national is his spouse, that they were living together in that EEA State before the United Kingdom national returned to the United Kingdom. That test is fully satisfied in this case. The petitioner’s wife was residing in Germany as a worker or self-employed person before returning to the United Kingdom. The petitioner is her spouse and they were living together in Germany before she (and they) returned to the United Kingdom. Nothing more is required.”
[13] The Lord Ordinary considered that the amendment to Regulation 9 was designed to give effect to developing jurisprudence of the CJEU, such as O and B, which had emphasised the need to establish a that residence in the host state was genuine. He observed (para 69) that:
“It may well be that case law from the Court of Justice has elaborated upon the circumstances in which residence and employment/self-employment in a Member State of which the Union citizen is not a national is or is not sufficient in terms of length and quality to entitle the Union citizen to bring his spouse or other family member back to his home state when he returns there; and it may well be that Regulation 9 has now been amended to attempt to give effect to this case law. But that amendment does not affect the petitioner, who applied for a residence card before it came into effect. Nor is the unamended regulation to be construed as though it reflected the developing jurisprudence from the Court of Justice; if it were to be construed in this way, there would have been no need to amend it in an attempt to give effect to that case law… If this means that the domestic regulations are more favourable to the petitioner than the provisions of Directive 2004/38, so be it. That is expressly permitted by article 37 of the Directive.”
[14] At paragraph 44(2) he had stated:
“… the terms of the regulation then in force do not contain any reference to the centre of life having transferred to the EEA State where the petitioner’s wife resided as a worker or self-employed person. The unamended regulation says nothing about the length or quality of residence as a worker or self-employed person. It is not permissible to read Regulation 9 in its unamended form as if it said much the same as the amended Regulation 9. Nor is it permissible to construe the domestic EEA Regulations by reference to case law from the Court of Justice interpreting Directive 2004/38 except, of course, in exceptional cases where it is permissible to do so in order to make domestic subordinate legislation compliant with the Directive to which it is intended to give effect. This is not necessary here because Directive 2004/38 expressly permits national provisions which are more favourable to individuals covered by the scope of the Directive than the terms of the Directive itself: see article 38. To give effect to the case law on this area emanating from the Court of Justice, and in particular the case of O v Minister voor Immigratie, Intergratie en Asiel, it was necessary to amend Regulation 9, as was done with effect from 1 January 2014. But the petitioner’s case falls to be considered under the unamended Regulation 9 which, to quote Judge McCarthy, “did not impose any time condition in relation to how long a British citizen had to have worked in another member state before they could rely on EU law”.
[15] The appellant relied on this analysis. The pre-amendment regulation, and transitional provisions preserving its application, created a legitimate expectation that a Court would address and apply the pre-amended regulation without recourse to developing jurisprudence of the CJEU relating to the Directive. If a Directive has been properly implemented into domestic law it is the terms of the implementing measure not the Directive which must be addressed. It is for member states to decide how a Directive should be implemented. Only if there is ambiguity in the implementing measure, or where the Directive has not fully been implemented, may one look behind the implementing measure: HB (Algeria) v Secretary of State for the Home Department [2008] UKAIT 69 para 1. The comment in CPC/4072/2013 (EU law: free movement) [2014] UKUT 573, para 24, that:
“The basic principle is that ”where an Act is passed to give effect to Community law, terms used in the Act must be construed in accordance with that law” (see Bennion on Statutory Interpretation, 6th edition, at p1156).”
was flawed. That principle applied only where the domestic measure was disconform to EU law. It is for the member states to decide how a Directive should be implemented. A state is entitled to incorporate the rights given by Directives in a way which is more favourable than that provided for by EU law, and if it does so it is the more favourable provision which must apply.
[16] (iii) The UT proceeded as if the case of Akrich had overruled the case of O and B and the principles enunciated therein.
[17] (iv) The UT acted unfairly in invoking motive and equiparating that with abuse of EU law. As an appellate body the UT was not entitled to consider an issue – alleged artificiality of residence – which had not been raised by the respondent or discussed by the FTT. There is nothing in law which stipulates how long residence must be.
[18] Akrich made clear that motive was not a relevant consideration. That was not altered by the decision in O and B: a person’s motivation does not determine whether he may be described as “resident” in the host State. The only question is whether the individual may properly be described as “resident” for the purpose of Article 7 of the Directive upon which the regulation is based. In Surinder Singh, para 24, the Court had observed that it was not the intention that those benefitting from rights under the treaty could use them to circumvent national legislation.
[19] However, it is clear from Akrich that motive does not constitute abuse. The advantages of free movement cannot be made contingent on a party’s objectives. In assessing whether the employment activity of the appellant’s wife, and their residence, in Germany, were genuine and effective no regard should be had to the motive of moving there. LN Styrelseon for Videregaende Uddannelser og Uddannelsesstotte [2013] 2 CMLR 37 is to similar effect. It is not an abuse to seek to take advantage of a fundamental right. There was an inconsistency with using O and B to take motive into account, when Akrich made it plain that motive is irrelevant.
[20] The basis of the respondent’s objection was that the claimed period of residence was too short: it had never been suggested that the residence was artificial or that it constituted an abuse of the Directive. It was an error for the UT to consider an issue which had not been raised by the respondent or the FTT. Reference was made to Miftari v Secretary of State for the Home Department [2005] EWCA Civ 481, paras 23-24. The UT were considering a case remitted to it with directions under section 14 of the Tribunals and Enforcement Act 2007. It had no power to determine issues of fact. In O and B the Court had decided that a period of residence of more than 3 months which is in accordance with Article 7 of the Directive was sufficient. The appellant’s case can be equiparated with that and the UT was not entitled to find otherwise.
[21] (v) In any event, the UT failed to consider matters relevant to the genuineness of the appellant’s residence in Germany, and that of his wife. These factors were said to be living in Germany for at least 4 months; moving around to follow job opportunities; the undertaking of a language course by the appellant; that his wife had a job which provided for them; that she had registered with a German GP, and received ante natal care; that they had German bank accounts and National Insurance, as well as mandatory health insurance; that they were registered for PAYE; and that the appellant’s wife had no connection with the UK since leaving for Ireland. All of this was evidence of an intention to settle in Germany, and the UT were not entitled to find otherwise. It had wrongly been asserted that there was no application to lead evidence before the UT: an application had been made to lead evidence relating to the appellant’s enrolment in a German integration course and relating to his wife’s medical treatment in Germany.
[22] In O and B the Court stated (para 58) that proof of abuse :
“….. requires, first, a combination of objective circumstances in which, despite formal observance of the conditions laid down by the European Union rules, the purpose of those rules has not been achieved, and, secondly, a subjective element consisting in the intention to obtain an advantage from the European Union rules by artificially creating the conditions laid down for obtaining it ……”
[23] The purpose of the rules is to remove obstacles and facilitate the movement of EU citizens and their families across the EU: that is the purpose for which the appellant’s wife moved to Germany, thus the purpose has been achieved. Consideration of the objective circumstances does not include consideration of motive. The subjective factors require an assessment of the evidence to ask whether the situation has been artificially created. There was no such evidence. A conclusion that the residence was not genuine might have followed where the employment of the appellant’s wife was marginal or not genuine; or where the period of residence was less than three months. The mere fact of consciously placing oneself in a situation conferring free movement is not a sufficient basis for a finding of abuse: Torresi v Consiglio dell’Ordine degli Avvocati di Macerata [2015] QB 331, paras 43-51.
[24] (vi) The UT erred in saying that the FTT had made no error of law in relation to article 8, that matter being conceded by the concession on the first ground of appeal. There clearly had been an error of law and the failure of the UT to appreciate that fact vitiated its decision.
Submissions for the respondent
[25] (i) The appellant’s first ground of appeal mischaracterises the terms and effect of the concession. The concession was simply that it had been an error of law, in accordance with the Devaseelan principle, for FTT Judge Bradshaw, as part of his own reasoning, to rely on certain conclusions made by a different judge in an earlier determination. The concession did not extend to the question of whether the appellant satisfied the requirements of Regulation 9, which issue remained open for determination by the Upper Tribunal.
[26] (ii) The UT did not fail to address the observations made by the Lord Ordinary in the judicial review proceedings and reached the correct interpretation of Regulation 9. The UT quoted at length from the Lord Ordinary’s opinion and explained in detail why it disagreed with his analysis. It correctly noted that the Lord Ordinary’s comments were not binding. The UT explained why the argument that the pre-amendment regulation had been designed to be more favourable to applicants than was required by the Directive was rejected. The UT accepted that it was the pre-amendment regulation which required to be considered.
[27] The UT found that this regulation had to be interpreted consistently with the decisions of the CJEU, including O and B. Such a conclusion was well-founded. Where a domestic legislative measure is designed to give effect to EU law, it must be construed in accordance with that law: CPC, para 24. The interpretation which the Court gives to EU law defines the meaning of that law as it should have been applied from the time of its entry into force, subject to the Court’s ability to modify the effect thereof in exceptional cases: Grzelczyk v Centre Public d’Aide Sociale d’Ottignies Louvain la Neuve [2011] ECR I-6193, paras 50-53; CPC para 25; R (Benjamin) v Secretary of State for the Home Department [2016] EWHC 1626 (Admin), paras 47,54 and 63. Accordingly both the pre- and post- amendment regulations require to be interpreted in the light of jurisprudence of the CJEU. That is particularly so when the regulation was designed to give effect to a decision of that court, explaining the reach of rights conferred by the Directive.
[28] The pre-amendment Regulation 9 was designed to give effect to the principle first explained in Surinder Singh, which proceeded on an earlier version of the treaty and of the Directive. That case confirmed that no right was conferred by the treaty on third parties, but to give effect to freedom of movement it is necessary to imply a derivative right on return to one’s own country from a host member state. Regulation 9 gives effect to that principle and the line of authority starting with Surinder Singh. To define the scope of that principle it is necessary to consider CJEU jurisprudence on the matter.
[29] The UT had made no error of law in its interpretation of O and B. The guidance to be taken from that case can be summarised as follows:
a. only “genuine residence” in the host state creates a derived right of residence on return to the State of origin: paras 51-56;
b. the residence must be “sufficiently genuine so as to enable [the Union] citizen to create or strengthen family life in [the host] Member State.”: paragraph 51;
c. a Union Citizen exercising the right under Article 6(1) of the Directive, enabling him to live for up to three months in the host state without any conditions or formalities other than holding valid means of identity does not intend to reside there in a way which would create or strengthen family life in that state (paragraph 52);
d. The scope of EU law does not permit abuses: this is expressly provided for in Article 35 of the Citizens’ Directive.
[30] It was accepted that member states may introduce provisions more favourable than EU law requires. This had not been the subject of submission before the Lord Ordinary. An inference that a state has deliberately made more favourable provision is not to be made lightly. There was no material before the UT (or the Lord Ordinary) evidencing an intention to confer rights more extensive than those derived from the Surinder Singh principles as explained in subsequent CJEU jurisprudence. The Lord Ordinary expressed the view that the appellant required only to satisfy the bare requirements that his wife had resided in Germany as a worker and that he had been living with her there as her spouse for Regulation 9 to be met.
[31] The Lord Ordinary’s view that his preferred construction was to be favoured, because there would not otherwise have been a need for amendment, is unsound. The fact that it was considered desirable to spell out its true meaning in greater express detail is entirely neutral as to how the Parliament which promulgated the amendment to Regulation 9 understood its pre-amendment form. It certainly cannot shed any light on the intention or will of the quite different Parliament (and Executive) responsible for promulgating the 2006 Regulations in their original form. Counsel referred to Kirkness (Inspector of Taxes) v John Hudson & Co Limited [1955] AC 696 as suggesting that there were circumstances in which one could interpret original legislation by considering later, or amended, legislation but submitted that the necessary circumstances for such an approach did not exist in this case.
[32] (iii) and (iv) What amounts to “genuine residence” for the purpose of the regulations is a question of fact and degree, addressing whether the individual lived in the host state with sufficient continuity or expectation of continuity to warrant the conclusion that he “resided” there within the ordinary meaning of the word. The Lord Ordinary erred in applying a literal interpretation:
“The petitioner is her spouse and they were living together in Germany before she (and they) returned to the United Kingdom. Nothing more is required. (para 68)”
That is wrong: what is required is a qualitative assessment of the residence in the host state. It was a qualitative question.
[33] The argument that the UT proceeded on an assumption that Akrich had been overturned by O and B is misconceived. The UT had full regard to Akrich, which it did not treat as over-ruled. It did not base its decision on motive as the only relevant factor. The UT correctly accepted that whilst an individual’s motives cannot prevent their family members from enjoying the right in Regulation 9 where they have genuinely resided in another member state, motives may nevertheless remain relevant to the assessment whether or not the individual was genuinely residing in that other state for the purpose of the regulation. The motive does not deprive an individual of benefits resulting from the exercise of treaty rights, but the question remains whether there has been a sufficiently genuine exercise of the right. This is a matter which had always been in issue. It was referred to in the decision of both the first and second FTT.
[34] The UT did not equate motive with abuse: rather it considered the factual issue of whether the evidence showed genuine residence. Akrich confirmed that motive alone cannot stop someone benefitting from Surinder Singh rights. The motive of taking advantage of an EU freedom will not prevent someone so benefitting, provided that the exercise of the treaty right giving the benefit is effective and genuine. However, not every residence gives rise to a Surinder Singh right. In other words, there is a qualitative test: it only arises where residence is sufficiently genuine to enable a citizen to create or strengthen family life (O and B, para 51). In the question whether genuine residence exists, motive remains a relevant factor. Intention must have a bearing on whether one becomes established.
[35] Insofar as the FTT’s decision had been based on grounds other than those pertaining to the deportation order, the UT overturned it, and correctly proceeded to remake the decision which had been overturned. In doing so it was acting as a first instance court and was not exercising an appellate jurisdiction. The UT was not restricted to the primary or inferential findings made by the FTT but was entitled to supplement or vary those findings with its own inferential findings. The factual issues listed by the appellant included those on which the FTT had made no findings in fact or had reached findings unfavourable to the appellant: neither party had asked the UT to admit new evidence. It was for the UT to determine as fact whether residence had been established. The only application which the appellant made related to documentary evidence which he sought to put before an earlier UT. He had made no application in respect of the hearing to which the decision under challenge related. In any event, doubt had to be cast on the document relating to the integration course since it bears to be from a (German) translation company which cannot spell “German”, “measures” or “ministry”. In any event, it related to a period when the appellant’s wife, whose claimed residence had to be the foundation of the claim, had already left Germany to live in the UK.
[36] (vi) The UT noted, without deciding, the respondent’s submission that in an appeal under the 2006 Regulations it was not competent to raise human rights arguments. That submission was sound. There was no determination by the respondent of an Article 8 claim, since no such claim had been made. Since deportation was not an issue, the question of whether a residence card would be granted did not itself require the appellant to leave the UK. The issue was considered in TY (Sri Lanka) v Secretary of State for the Home Department [2015] EWCA Civ 1233, per Jackson LJ, para 35. Furthermore, the UT in any event considered the Article 8 grounds on an alternative basis and carried out its own proportionality assessment in which it carried out a proper balancing exercise having regard to the best interests of the child. Its conclusion cannot constitute an error of law, even if this Court were to consider that it might have decided the question in a different way.
Analysis and decision
[37] The first ground of appeal is that the UT ignored the concession made by the respondent earlier in the proceedings, referred to in the Court’s prior opinion, which had resulted in the case being remitted to the UT. It is said that the UT erred in para 37 of its decision in relying on “the same factors which had been conceded to be erroneous”.
[38] In fact, as the respondent submitted, this ground of appeal misunderstands the nature and effect of the concession. The concession was simply that at the second FTT, the judge should not have relied on findings recorded in the decision of an earlier FTT, which decision had been set aside. It is not the case that the factors relied on by the FTT had been found to be erroneous. No decision had been made on that one way or the other. The simple point regarding the error of the FTT in relying on the findings of the earlier FTT is that he should not have done so: he should have addressed this matter afresh for himself. This is what the UT were required to, and did, do.
[39] Ground vi is to some extent associated with the first ground of appeal, and is affected by the same misapprehension. The error of law identified previously by this Court was not one which affected the merits in any way; it was not the decision which was faulted, rather it was the method of reaching that decision which was wrong. In any event, in our opinion no Article 8 point in fact arose, having regard to setting aside of the deportation order. As in the case of TY, if the appellant had good grounds for making a claim to remain in the UK on human rights grounds, he may make such a claim. In the meantime, we consider that the position is the same as the applicant in TY in respect of whose claim the Court said, para 35:
“It is impossible to say that the Secretary of State's decision to withhold a residence card (a decision which is correct under the EEA Regulations) will or could cause the UK to be in breach of the Refugee Convention or ECHR. The UK will only be in breach of those Conventions if in the future the appellant makes an asylum or human rights claim, which the Secretary of State and/or the tribunals incorrectly reject.”
In any event, it is clear that the UT addressed this matter on an esto basis, considered all relevant matters and reached a conclusion on the basis of proportionality with which there would be no ground for us to interfere. Accordingly, neither the first nor sixth grounds of appeal can succeed.
Regulation 9
[40] Regulation 9 finds its genesis in Surinder Singh, a case which involved the return to the UK with her third country spouse of a British national who had exercised her right of free movement by working and living in Germany, with her husband, for a period of almost three years. In addressing the question remitted to it, which related to the rights of the spouse, the ECJ stated that:
“[16] … the provisions of the Treaty relating to the free movement of persons are intended to facilitate the pursuit by Community citizens of occupational activities of all kinds throughout the Community, and preclude measures which might place Community citizens at a disadvantage when they wish to pursue an economic activity in the territory of another member-State.
[17] For that purpose, nationals of member-States have in particular the right, which they derive directly from Articles 48 and 52 EEC to enter and reside in the territory of other member-States in order to pursue an economic activity there as envisaged by those provisions..”
The case of course proceeded on the basis of the conditions set out in Community legislation which was the precursor to Directive 2004/38. However, from a point of principle, no significant difference need be noted in relation to the issues which arise in the present case.
[41] The Court noted that when a Community national exercised rights of free movement and residence, the applicable Directives and Regulations provided that the host state had to grant the third-country spouse and children of such a person rights of residence equivalent to that granted to the Community national. The applicable legislation did not apply to a return to the state of origin. The Court recognised that the Community national would re-enter the country of origin on the basis of nationality, not by virtue of rights given under Community law. However, the Court observed that the national of a member state might be deterred from exercising rights of free movement if, on return to their state of origin, their spouse or children were not entitled to enter the country on terms at least equivalent to those granted by Community law in the territory of another member state. Thus, in order to make the rights given under Community law fully effective
“... when a Community national who has availed himself or herself of those rights returns to his or her country of origin, his or her spouse must enjoy at least the same rights of entry and residence as would be granted to him or her under Community law if his or her spouse chose to enter and reside in another member-State.” (para 22)
In other words, in order to make the right of free movement effective, such ancillary rights required to be implied on return to the national’s country of origin, by virtue of the principle set out in Surinder Singh, whereby the national retained the right to be accompanied by his or her spouse. Under the Surinder Singh principle therefore, it would be necessary to apply on return to the home state the same minimum treatment guaranteed by the Directive in a host state.
[42] The current Directive (2004/38) equally does not address the Surinder Singh situation: it applies only to a movement to a state other than one’s state of nationality. Nevertheless, under EU law, the Surinder Singh principle continues to apply, for the same reasons which we have endeavoured to explain. This is made clear in O and B para 37-50. Regulation 9 is not therefore in implementation of the Directive but in implementation of the Surinder Singh principle. This has repeatedly been acknowledged in case law: see R (Benjamin), Lang J, para 54: “Regulation 9 places the Surinder Singh principle on a legislative footing.” See also HB (paras 12, 30); CPC para 20.
[43] The UT did not seek to apply the Directive: it correctly considered whether the appellant met the conditions of Regulation 9 in its pre-amendment form. However, the fact that the question was one of interpretation of the regulations does not mean that EU law relating to the Directive, or its predecessors, had no bearing on the correct interpretation of the phrase “residing in” as used in the regulations. As the Asylum and Immigration Tribunal observed in HB (para 26):
“In seeking to construe reg 14, we remind ourselves that although the 2006 Regulations are part of national law they were enacted in order to implement a Directive and as such we must adopt a Community law approach to their construction, i.e. that we must construe them as far as possible, in the light of the wording, context and purpose of the Citizens Directive, paying particular regard to that Directive's purpose, in order to achieve the result pursued (Case C-I06/89 Mar/easing [1990] ECR 1-4135, para 8).”
[44] Thus, it is incorrect to suggest that the regulations in general require to be interpreted in isolation from EU jurisprudence relating to the Directive. In any event, such an argument could not apply to Regulation 9 which was introduced in implement of case law, rather than the Directive. The correct interpretation of the phrase “residing in … as a worker” must therefore be determined under reference to CJEU jurisprudence, including O and B. It follows that the UT did not fall into error in doing so.
[45] Before we move on from the question of interpretation, we should add that we accept the primary submission of counsel for the respondent that the terms of the amended legislation offer no assistance on the question of how the original regulation should be interpreted. We do not see Kirkness as indicating otherwise. The approach in that case only applies where a provision is so ambiguous that it is capable of two equally clear and plain constructions.
Residence
[46] In O and B the Court noted that it would be an obstacle to free movement were equivalent rights not available on return to the citizen’s home state: however, a refusal to grant such rights would only create such an obstacle if (para 51):
“the residence of the Union citizen in the host member state has been sufficiently genuine so as to enable that citizen to create or strengthen family life in that member state.”
Not every residence will qualify: for example, someone pursuing residence under article 6 does not intend to settle in such a way as to create or strengthen family life. The opposite may be the case where someone “intends to exercise his rights” under article 7: genuine residence in conformity with that article would engage the derivative right (paras 52-54). The more so would the right be engaged had permanent residence in the host state been acquired under article 16.
[47] The appellant relied on these paragraphs to argue that as long as the residence in question lasted for at least three months, the terms of the article had been met and were sufficient for the purposes of Regulation 9. However, that argument fails to recognise the context in which the discussion takes place. It is central to the decision in O and B that for “residence in” the host state it is a “genuine residence” which requires to be established, not a residence of any specific duration. Of course, duration may be a relevant factor, but it is only one factor. As the Court went on to say in O and B
“57 It is for the referring court to determine whether [the sponsors], who are both Union citizens, settled and, therefore, genuinely resided in the host member state and whether, on account of living as a family during that period of genuine residence [the spouses] enjoyed a derived right of residence in the host member state.
“59. In that regard, short periods of residence such as weekends or holidays spent in a member state other than that of which the citizen in question is a national, even when considered together, fall within the scope of article 6 of Directive 2004/38
and do not satisfy those conditions.”
Elsewhere the Court stated that on return, the conditions which apply should not be any more strict than those which apply when the citizen has exercised his right of movement by “becoming established” in a host state (para 61).
[48] The reference to “becoming established” echoes the approach taken in Metock v Minister for Justice, Equality and Law Reform [2009] QB 318. In that case, the Court rejected an argument that the spouse’s derivative right to reside in the host state depended on that spouse having previously been lawfully resident within a member state. Faced with an argument that this would have serious immigration consequences for member states, the Court went on to say (para 73):
“On this point, the answer must be, first, that it is not all nationals of non-member countries who derive rights of entry into and residence in a member state from Directive 2004/38, but only those who are family members, within the meaning of article 2(2) of that Directive, of a Union citizen who has exercised his right of freedom of movement by becoming established in a member state other than the member state of which he is a national.”
[49] The use of the word “established” is significant. In that paragraph, and elsewhere, the Court discusses the nature of the derivative rights as those which follow when the EU national has become “established” in the host state (paras 68; 81; 89; 90). This was noted by the Advocate General in Surinder Singh, from whose opinion it is apparent that there was already jurisprudence of the ECJ to the effect that the economic activity which required to be the subject of free movement had to be effective and genuine; and that in assessing the genuine and effective nature of an activity, courts were entitled to take into account the irregular nature and limited duration of work done (para 14, p370). The same point arose in LN where the activity required to be more than marginal or ancillary.
[50] CPC was, like the present case, a decision based on Regulation 9 in its unamended form. The UT noted that:
“25. The CJEU took the opportunity in O and B to set out the principles governing claims by third-country nationals based on being family members of an EU national who had exercised rights of freedom of movement and, in some cases, residence, when those claims were asserted not against a host Member State of the EU national but against his own Member State following his return to it. Decisions of the CJEU are in general declaratory of how the law must be taken to have been, subject to the Court’s ability to modify the effects of such a decision in exceptional cases...”
[51] As in the present case, the argument advanced in CPC was that Regulation 9 created minimal criteria, and that the phrase “residing in an EEA state as a worker” meant no more than “being present in an EEA state as a worker”. The UT subjected O and B to a careful analysis, concluding (para 31) that “the Court’s concern was, if not with habitual residence, with a concept of residence which went beyond mere physical presence.” The concern was with a residence which was “sufficiently genuine” as to enable a person to create or strengthen family life there, which indicated a qualitative element. What is required of the decision maker (para 40)
“…is to make a judgement of fact and degree as to whether the individual has lived in the EEA State in question with sufficient permanence, continuity, or at least some expectation of continuity, to warrant the conclusion that he “resided” there within the ordinary meaning of the word.”
Abuse
[52] The discussion of “abuse” of rights in the present case stems from the UT’s observations in para 37 that the “obvious and overwhelming reason for their stay in Germany is that they planned to use it to legitimise the appellant’s residence in the UK.” This led to the argument that the UT had erred (a) in invoking motive; and (b) by equating motive with abuse. The issue of abuse of rights had been considered in Surinder Singh, where the Court observed (para 24) that:
“As regards the risk of fraud referred to by the United Kingdom, it is sufficient to note that, as the Court has consistently held … the facilities created by the Treaty cannot have the effect of allowing the persons who benefit from them to evade the application of national legislation and of prohibiting Member States from taking the measures necessary to prevent such abuse.”
[53] In Akrich the Secretary of State had refused entry clearance to the third country spouse on the basis that the parties’ residence in Ireland had been a temporary absence deliberately designed to manufacture a right of residence for the spouse on return to the UK, and that the UK national had not been genuinely exercising rights under the treaty as a worker in another state. The adjudicator however, found that although the admitted purpose of going to Ireland was indeed to obtain rights to return to the UK, there had been an effective exercise by the UK national of her Community rights, untainted by that motivation. The case appeared in the ECJ as a reference from the Immigration Appeal Tribunal, under reference to para 25 of Surinder Singh, on the relevance of motive. The ECJ stated that:
“55. As regards the question of abuse mentioned at para 24 of R v Immigration Appeal Tribunal and Surinder Singh, Ex p Secretary of State for the Home Department (Case C-370/90) [1992] ECR I-4265 , 4295, it should be mentioned that the motives which may have prompted a worker of a member state to seek employment in another member state are of no account as regards his right to enter and reside in the territory of the latter state provided that he there pursues or wishes to pursue an effective and genuine activity: Levin v Staatssecretaris van Justitie (Case 53/81) [1982] ECR 1035 , 1052, para 23.
56. Nor are such motives relevant in assessing the legal situation of the couple at the time of their return to the member state of which the worker is a national. Such conduct cannot constitute an abuse within the meaning of para 24 of the Singh judgment even if the spouse did not, at the time when the couple installed itself in another member state, have a right to remain in the member state of which the worker is a national.”
[54] It is entirely correct to say that the mere fact of moving to another country to take advantage of more favourable treatment will not itself constitute abuse of rights. However, that does not mean intention is irrelevant to the question of whether a genuine residence has been established. The appellant relied upon the following passage in UPC:
“77 Furthermore, the exercise of a fundamental freedom for the purpose of benefiting from the more favourable legislation of another Member State does not in itself suffice to constitute abuse of that freedom (see, to that effect, Case C-196/04 Cadbury Schweppes and Cadbury Schweppes Overseas EU: C:2006:544, paragraph 37).”
A similar passage is found in Torresi (para 50). We do not disagree with this, as far as it goes. However, it is not at odds with the conclusion which we have reached. In Torresi (para 46), as in O and B, the subjective element indicative of abuse was described as being artificially creating the conditions required to obtain the right in question. That too reflects a concern with the genuineness of the activity undertaken: it is not the intention to benefit from more favourable legislation in one country which constitutes abuse: it is that the conditions which must be satisfied to obtain that benefit have never genuinely existed which may do so. In determining whether they did genuinely exist, the intention of the individual will be one of several factors to be taken into account.
[55] On a referral from this Court the UT is entitled to remit to the FTT, or it may reconsider the case itself. If it does the latter, it is proceeding to determine the appeal on the same basis as it would in respect of an appeal directly from the FTT to the UT under section 12 of the 2007 Act. In such a situation the UT is empowered to make any decision which could have been made by the FTT and to make any findings of fact which it considers appropriate.
[56] The UT required to carry out a qualitative assessment of the evidence bearing on the residence in Germany of the appellant and his wife to determine whether it constituted genuine residence for the purpose of the regulation. In carrying out that exercise it was entitled to consider the parties’ intention as a relevant factor. It was entitled to proceed on the basis of the findings made by the FTT, and it did not take into account any irrelevant factor or ignore relevant ones. Had the appellant wished to place additional evidence before that UT, he was entitled to do so. He did not. The UT did not proceed on the basis that motive alone was sufficient to constitute abuse of rights, or to justify refusal of the appeal. Reading its decision as a whole, it proceeded on the basis, as discussed in Torresi, that the appellant and his wife artificially created the necessary conditions, that they had no intention of trying to settle in Germany, and that such residence which they had could not meet the necessary test of genuine residence. The UT acknowledged the conclusion in Akrich as to the irrelevance of motive, but registered also the reference in that case to genuine and effective activity. It was not the case that mere token presence in the host state would be sufficient. The UT accepted the respondent’s submission that what was required was residence sufficiently genuine to enable the individual to create or strengthen family life in the host state. The argument that the appellant and his wife genuinely intended to settle in Germany but were driven to change their plans by circumstances was rejected on the facts. This was a decision which the UT was entitled to reach. In the circumstances the appeal will be refused.