PETITION OF ADEBAYO AINA FOR JUDICIAL REVIEW OF THE SECRETARY OF STATE'S REFUSAL TO ISSUE A CERTIFICATE OF APPLICATION
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 158
P1251/14
OPINION OF LORD GLENNIE
In the petition of
ADEBAYO AINA
Petitioner;
for judicial review of the Secretary of State’s refusal to issue a Certificate of Application
Petitioner: Party
Respondent: Gill; Office of the Advocate General
24 November 2015
Introduction
[1] The petitioner is a national of Nigeria. On 14 May 2013 he applied for an EEA residence card on grounds that he is married to a British national: Regulation 17(1) of the Immigration (European Economic Area) Regulations 2006 (2006 No. 1003) (“the EEA Regulations”). He was duly issued with a Certificate of Application (“CoA”) under Regulation 17(3). That CoA acknowledged the application for a residence card and stated that a decision would be made “as soon as we can and, in any event, within the next 6 months”. More importantly, from the point of view of the applicant, the CoA states that that the applicant is entitled to accept offers of employment in the UK whilst the application is under consideration; and it tells potential employers that the fact that the petitioner has shown them a CoA may form part of a statutory defence against any potential liability on their part to pay a civil penalty under section 15 of the Immigration, Asylum and Nationality Act 2006 for employing an illegal migrant worker.
[2] On 17 December 2013 the petitioner’s application for a residence card was refused, the Secretary of State relying on Regulations 9 and 20 of the EEA Regulations. He appealed, unsuccessfully, to the First-tier Tribunal (“FTT”) and from there, successfully, to the Upper Tribunal (“UT”), which held that the FTT (and, by implication, the Secretary of State) had fallen into error. On 8 September 2014 the UT remitted the case back to the Secretary of State for a new decision to be made.
[3] On 8 December 2014, no fresh decision having been forthcoming, the petitioner lodged this petition seeking an order compelling the Secretary of State to make a decision on his application for a residence card. That part of the relief claimed in the petition is now academic since on 12 January 2015 the Secretary of State did make a fresh decision. She again refused the petitioner’s application for a residence card. That decision was appealed, again unsuccessfully, to the FTT and, from there, again successfully, to the UT. The case has again been remitted to the Secretary of State for her to make a fresh decision. No fresh decision has as yet been made.
[4] However, that part of the petition which relates to the Secretary of State’s refusal to issue the CoA remains live. The position so far as concerns that issue is this. A CoA was issued to the petitioner when he first applied for an EEA residence card. But the CoA is, in effect, time limited; on the face of the document it is made clear that after six months it cannot be relied on by a prospective employer as part of a defence against liability to pay a penalty for employing an illegal migrant worker. Its effectiveness expired on 19 November 2013.
[5] In October 2014, after the UT had remitted the case to the Secretary of State for the first time but before a fresh decision on the petitioner’s application for a residence card had been made, the petitioner applied to the Royal Mail for employment as a “Christmas casual”. He avers in the petition that he was offered such a job subject to proof of his right to work in the UK. To this end he applied to the Secretary of State for renewal of his CoA. That application was refused. The petitioner avers that this refusal was unlawful. He also avers that as a result of this refusal he was unable to get the job. He claims damages.
[6] The obligation to issue a CoA turns on a relatively short point of construction of the EEA Regulations and of Directive 2004/38/EC of the European Parliament and the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (“Directive 2004/38”) which the EEA Regulations implemented. But the issue has to be looked at in the context of the EEA Regulations and Directive 2004/38 as a whole and against the particular facts out of which this petition arises. This is in part because the Secretary of State argues that the obligation to issue a CoA is only owed to persons who are in fact entitled to a residence card. If she is right about that then, in order to determine the merits of the petitioner’s claim to be entitled to a CoA, this court must also consider, to some extent at least, the merits of his claim for a residence card. It is therefore necessary to set out the relevant parts of the EEA Regulations and Directive 2004/38 in some detail, along with a fuller account of the circumstances giving rise to this dispute.
Directive 2004/38
[7] Recitals (1), (2) and (3) to Directive 2004/38 emphasise that citizenship of the Union confers on every citizen of the Union a primary and individual right to move and reside freely within the territory of Member States, subject to limitations and conditions laid down in the Treaty establishing the European Community; that free movement of persons constitutes one of the fundamental freedoms of the internal market; and that Union citizenship should be the fundamental status of nationals of the Member States when they exercise their right of free movement and residence. Recital (5) then provides as follows:
“(5) 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. …”
The Recitals then go on to set out the policies and aspirations which Directive 2004/38 seeks to implement before emphasising, in Recital (29), that:
“(29) This Directive should not affect more favourable national provisions.”
[8] Article 1 identifies the subject matter of Directive 2004/38. It provides as follows:
“Article – Subject
This Directive lays down:
(a) the conditions governing the exercise of the right of free movement and residence within the territory of the Member States by Union citizens and their family members;
(b) the right of permanent residence in the territory of the Member States for Union citizens and their family members;
(c) the limits placed on the rights set out in (a) and (b) on grounds of public policy, public security or public health.”
It is apparent from article 1(c) that the rights of free movement and residence can only be limited on strictly defined grounds, namely public policy, public security or public health. These grounds, and the limits on the way they may be invoked, are set out in more detail in Chapter VI of Directive 2004/38.
[9] Article 3, entitled “Beneficiaries”, provides that Directive 2004/38 “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 … who accompany or join them” (emphasis added). “Union citizen” is defined in article 2 as meaning any person having the nationality of a Member State. “Family member” is also defined in article 2 and includes a spouse. I have italicised part of the passage quoted from article 3 to emphasise the fact that, as is to be expected with a Directive concerned with the exercise of the right of free movement and residence, Directive 2004/38 is not directly concerned in the issue of how a Member State treats its own nationals and their family members.
[10] Article 5 is entitled “Right of entry”. It provides inter alia as follows:
“Article 5 – Right of entry
1. Without prejudice to the provisions on travel documents applicable to national border controls, Member States shall grant Union citizens leave to enter their territory with a valid identity card or passport and shall grant family members who are not nationals of a Member State leave to enter their territory with a valid passport. …
2. Family members who are not nationals of a Member State shall only be required to have an entry visa in accordance with Regulation (EC) No 539/2001 or, where appropriate, with national law. For the purposes of this Directive, possession of the valid residence card referred to in Article 10 shall exempt such family members from the Visa requirement.”
[11] Chapter III is concerned with the rights of residence. Within that Chapter, articles 6, 7 and 8 are concerned with rights of residence for Union citizens. Under article 6, they have the right of residence on the territory of another Member State for a period of up to three months without any conditions or formalities other than the requirement to hold a valid identity card or passport. Article 7 is concerned with rights of residence for more than three months and provides inter alia as follows:
“Article 7 – Right of residence for more than three months
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). …”
[12] Against this background, articles 9-14 seek to extend those rights to family members of Union citizens who are not themselves nationals of a Member State. I need only refer in detail to articles 9 and 10. They provide inter alia as follows:
“Article 9 – Administrative formalities for family members who are not nationals of a Member State
1. Member States shall issue a residence card to family members of a Union citizen who are not nationals of a Member State, where the planned period for residence is for more than three months. …
Article 10 – Issue of residence cards
1. The right of residence of family members of a Union citizen who are not nationals of a Member State shall be evidenced by the issuing of a document called “Residence card of a family member of a Union citizen” no later than six months from the date on which they submit the application. A certificate of application for the residence card shall be issued immediately [emphasis added]. …”
Article 10 goes on to deal with the documentation which should be presented by an applicant for a residence card. That is not material to the current issue; nor need I set out any of the provisions of the other articles in that Chapter.
[13] Chapter V contains provisions common to the right of residence and the right of permanent residence. I am here concerned only with rights of residence – rights of permanent residence apply to the very different case of Union citizens who have resided legally in a host Member State for a continuous period of five years. Article 23 provides as follows:
“Article 23 – Related rights
Irrespective of nationality, the family members of a Union citizen who have the right of residence or the right of permanent residence in a Member State shall be entitled to take up employment or self-employment there.”
Article 24 provides that, with certain exceptions, all Union citizens residing on the basis of Directive 2004/38 in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State. It makes it clear that that right to equal treatment extends also to family members who are not nationals of a Member State but who have the right of residence or permanent residence there.
[14] Chapter VI sets out the possible restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health. The general principles are set out in article 27, which provides inter alia as follows:
“Article 27 – General Principles
1. Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends.
2. Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.
The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted. …”
Article 28 deals with protection against expulsion. It provides inter alia as follows:
“Article 28 – Protection against expulsion
1. Before taking an expulsion decision on grounds of public policy or public security, the host Member State shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin.
2. The host Member State may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent presence on its territory, except on serious grounds of public policy or public security. …”
[15] Chapter VII contains the final provisions. It is only necessary to mention here article 37 which states, as foreshadowed in the Recitals, that the provisions of Directive 2004/38 “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.”
Relevant EU case law
[16] It is convenient at this point to notice some of the decisions of the Court of Justice relating to the position of a non-Union spouse (i.e. a spouse of a Union citizen who is not a national of a Member State) under Directive 2004/38 and, in particular, the position of that spouse when the Union citizen to whom she is espoused seeks to return to the Member State of which he is a national. In this context I have been referred, or have myself referred, to the following decisions:
R v Immigration Appeal Tribunal and Surinder Singh, ex parte Secretary of State for the Home Department (C-370/90) [1992] ECR I-04265, [1992] 3 CMLR 358, [1993] Fam Law 294
Secretary of State for the Home Department v Akrich (C-109/1), [2003] I-09607, [2004] QB 756
Metock v Ministry of Justice, Equality and Law Reform (C-127/08) [2008] ECR I-6241, [2009] QB 318
O v Minister voor Immigratie, Intergratie en Asiel (C-456/12) [2014] 3 CMLR 17, [2014] QB 1163
S v Minister voor Immigratie, Intergratie en Asiel (C-457/12) [2014] 3 CMLR 18, [2014] QB 1207
Dano v Jobcenter Leipzig (C-333/13), [2015] 1 WLR 2519
McCarthy v Secretary of State for the Home Department (C-202/13) [2015] 2 CMLR 13, [2015] 1 QB 651
[17] These cases illustrate and provide authority for a number of propositions and lines of reasoning relevant to the case before me. The basic principles can be taken from the judgment of the Court of Justice in Surinder Singh. This was decided under the predecessor Treaty and Directive – but these were in substantially the same terms and the decision is regarded as authoritative. In summarising these principles, to avoid constantly saying “he or she” and “his or her”, I have treated the Union citizen as male and the spouse as female – I could as easily have done it the other way round.
(1) Union citizens, i.e. nationals of Member States, have the right, derived directly from the Treaty, to enter and reside in the territory of other (“host”) Member States in order to pursue an economic activity: Surinder Singh at paras [15]-[17]
(2) The host Member State must grant the spouse and children of such a Union citizen rights of residence equivalent to those granted to the Union citizen himself: Surinder Singh at para [18];
(3) A Union citizen might be deterred from leaving his country of origin (his home state) in order to work in the territory of another (host) Member State if, on returning to work in his home state, the conditions of his entry and residence in his home state were not, at the least, equivalent to those which he would enjoy under the Treaty or secondary law in the territory of the host Member State: Surinder Singh at para [19].
(4) In particular, he would be deterred from so doing if, on his return to his home state, his spouse and children were not also permitted to enter and reside in his home state under conditions at least equivalent to those granted them by Community law in the territory of the host Member State: Surinder Singh at para [20]
(5) It follows that a national of a Member State who has gone to another Member State in order to work there and returns to work in his home state has the right to be accompanied in his home state by his spouse, albeit a national of a non-member country, under the same conditions as applied in the host Member State: Surinder Singh at para [21]
(6) Accordingly, in a case where a Union citizen leaves his home state and goes to work in another Member State, lives there with his spouse (of whatever nationality), and then returns with that spouse to establish himself again in his home state, his home state is required to grant his spouse leave to enter and reside in its territory, so that she may enjoy the same rights there as would be granted to her under Community law if the Union citizen of whom she was the spouse entered and resided in the territory of another Member State: Surinder Singh at para [25]
[18] That line of reasoning has been applied in the other cases referred to above: see in particular Akrich, Metock and O v Minister voor Immigratie, Intergratie en Asiel. But those cases have also amplified and explained certain matters.
[19] It was held in Akrich at paras [50]-[51] that a spouse of a Union citizen who is not a national of a Member State will only be entitled to avail herself of the rights provided for under the Directive if she was lawfully resident in another Member State before moving to the host Member State to which the Union citizen migrated. This was disapproved in Metock at para 58. It no longer represents the law.
[20] The case of Akrich is more important for the discussion of what constitutes an abuse (see Surinder Singh at para [24]) disentitling the spouse from being granted leave to enter and reside in the territory of the home state. While a sham marriage or a marriage of convenience would amount to an abuse, it would not be an abuse of for a Union citizen to move with his spouse from his home state to another (host) Member State specifically for the purpose of obtaining on their return to the home state the benefit of the rights conferred by community law set out above. The motives which may have prompted a worker, a national of one Member State, to seek employment in another Member State are of no account either in assessing his right to enter into and reside in the territory of the other (host) Member State or in assessing his right to return to his home state with his spouse: see Akrich at paras [55]-[57] and [61].
[21] In O v Minister voor Immigratie, Intergratie en Asiel the Grand Chamber took the opportunity to set out in rather more detail the rationale behind the principles established in the Surinder Singh case. It did so in light of changes both to the Treaty and the Directive since Surinder Singh was decided. In para 34 the court referred to article 21(1) TFEU, which provides that “every citizen of the Union shall have the right to move and reside freely within the territory of the member states, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect”. It noted in para 35 that Directive 2004/38 aimed to strengthen and facilitate the exercise of the primary and individual right to move and reside freely within the territory of the Member States conferred by that article. In para 36 it pointed out that neither article 21(1) TFEU nor Directive 2004/38 conferred any autonomous right on the third country nationals; any rights conferred on third country nationals by provisions of EU law on Union citizenship were rights derived from the exercise of freedom of movement by the Union citizen. It followed that Directive 2004/38 did not establish a derived right of residence for third country nationals who were family members of a Union citizen in the Member State of which that citizen was a national: see para 37. Under reference to the definition of “beneficiaries” in article 3(1) of Directive 2004/38, it concluded that Directive 2004/38 established a derived right of residence for third country nationals who were family members of a Union citizen only where that citizen had exercised his right of freedom of movement by becoming established in a Member State other than his home state: see para 39. Directive 2004/38 was intended only to govern the conditions of entry and residence of a Union citizen in a Member State other than his home state: see para 42. It was not intended to confer a derived right of residence on third country nationals who were family members of a Union citizen residing in his home state: see para 43. The court then proceeded, beginning at para 44, to consider whether, since spouses who were third country nationals were not entitled on the basis of Directive 2004/38 to a derived right of residence in the Union citizen’s home state, a derived right of residence might, in some circumstances, be based on article 21(1) TFEU. In paras 45-49 it answered that question in the affirmative. I quote from those paragraphs below:
“45 In their regard, it should be borne in mind that the purpose and justification of that derived right of residence is based on the fact that a refusal to allow such a right would be such as to interfere with the Union citizen’s freedom of movement by discouraging him from exercising his rights of entry into and residence in the host member state …
46 The court has accordingly held that where a Union citizen has resided with a family member who is a third country national in a member state other than the member state of which he is a national for a period exceeding 2½ and 1½ years respectively, and was employed there, that third country national must, when the Union citizen returns to the member state of which he is a national, be entitled, under Union law, to a derived right of residence in the latter state … [Reference was made to Surinder Singh and another case, RNG Eind] … If that third country national did not have such a right, a worker who is a Union citizen could be discouraged from leaving the member state of which he is a national in order to pursue gainful employment in another member state simply because of the prospect for that worker of not being able to continue, on returning to his member state of origin, a way of family life which may have come into being in the host member state as a result of marriage or family reunification …
47 Therefore, an obstacle to leaving the member state to which the worker is a national, as mentioned in [Surinder Singh and RNG Eind], is created by the refusal to confer, when that worker returns to his member state of origin, a derived right of residence on the family members of that worker who are third country nationals, where that worker resided with his family members in the host member state pursuant to, and in conformity with, Union law.
48 It is therefore necessary to determine whether the case law resulting from [Surinder Singh and RNG Eind] is capable of being applied generally to family members of Union citizens who, having availed themselves of the rights conferred on them by Article 21(1) FEU, resided in a member state other than that of which they are nationals, before returning to the member state of origin.
49 That is indeed the case. The grant, when a Union citizen returns to the member state of which he is a national, of a derived right of residence to a third country national who is a family member of that Union citizen and with whom that citizen has resided, solely by virtue of his being a Union citizen, pursuant to and in conformity with Union law in the host member state, seeks to remove the same type of obstacle on leaving the member state of origin as that referred to in para 47 above, by guaranteeing that that citizen will be able, in his member state of origin, to continue the family life which he created or strengthened in the host member state.”
[22] The court then went on at para 51 to say that the “obstacle” referred to in para 47 will arise only when 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. Article 21(1) TFEU did not require that every residence in the host Member State by a Union citizen accompanied by a family member who was a third country national necessarily confers a derived right of residence on that family member in the Union citizen’s home state. It gave the example, in para 52, of a Union citizen exercising his rights under article 6(1) of Directive 2004/38 (right of residence for up to three months), circumstances in which the court thought it was clear that the Union citizen did not intend to settle in the host Member State in such a way as would create or strengthen family life in that Member State – in those circumstances the refusal to confer a derived right of residence on members of his family who were third country nationals would not deter him from exercising those rights. On the other hand, as explained in para 53, an “obstacle” such as was referred to in para 47 might be created where the Union citizen intended to exercise rights under article 7(1) of Directive 2004/38 (right of residence for more than three months), since residence in the host Member State pursuant to and in conformity with the conditions set out in article 7(1) was, in principle, evidence of settling there and therefore of the Union citizen’s genuine residence in the host Member State “and goes hand-in-hand with creating and strengthening family life in that member state.” The court’s conclusions were set out in paras 56-59. I quote from those paragraphs below:
“56 Accordingly, it is genuine residence in the host member state of the Union citizen and of the family member who is a third country national, pursuant to and in conformity with the conditions set out in Article 7(1)(2) and Article 16(1)(2) of Directive 2004/38 respectively, which creates, on the Union citizen’s return to his member state of origin, a derived right of residence, on the basis of Article 21(1) FEU, for the third country national with whom that citizen lived as a family in the host member state.
57 It is for the referring court to determine whether sponsor O and sponsor B, 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, Mr O and Mr B enjoyed a derived right of residence in the host member state pursuant to and in conformity with Article 7(2) or Article 16(2) of Directive 2004/38.
58 It should be added that the scope of Union law cannot be extended to cover the abuses … Proof of such an 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 …
59 As regards the question whether the cumulative effect of various short periods of residence in the host member state may create a derived right of residence for a family member of a Union citizen who is a third country national on the Citizen’s return to the member state of which he is a national, it should be borne in mind that only a period of residence satisfying the conditions set out in Article 7(1)(2) and Article 16(1)(2) of Directive 2004/38 will give rise to such a right of residence. 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.”
[23] That approach has more recently been repeated in McCarthy.
The EEA Regulations
[24] The EEA Regulations are designed to implement the terms of Directive 2004/38. They have undergone amendment from time to time, sometimes to reflect decisions of the Court of Justice on Directive 2004/38. One such amendment is of some importance in the present case. The relevant provisions are contained in Regulations 9, 11, 17, 19, 20 and 21. They broadly reflect the provisions of Directive 2004/38. I set them out, so far as material, below.
[25] Regulation 9 as originally enacted, and as in force at the time the petitioner made his application for a residence card and CoA, provided as follows:
“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 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.”
[26] I should note here that that paragraph was substituted by paragraph 5 of Schedule 1 to the Immigration (European Economic Area) (Amendment) (No.2) Regulations 2013/3032 (“the 2013 Regulations”). With effect from 1 January 2014, Regulation 9 now reads as follows:
“9 – Family members of British citizens
(1) If the conditions in para (2) is 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) the 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 a 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.”
I have italicised the important changes. They are designed, no doubt, to give effect to the judgment of the Court of Justice in O and other cases. However, Schedule 3 to the 2013 Regulations contains transitional provisions pertaining for those individuals who had applied for a residence card before the amendments came into force. These are contained in paragraph 2 of Schedule 3. They provide that the substitution of Regulation 9 has no effect in relation to the family member (“F”) of a British citizen where the criteria in subparagraphs (2) or (3) are met. The relevant subparagraph is subparagraph (3). Read short, in so far as applicable to the petitioner, it provides that the criteria in that subparagraph are met where, upon the coming into force of the 2013 Regulations (i.e. 1 January 2014) the family member F (i.e. the petitioner) was a person with a right to reside under the 2006 Regulations (before their amendment) and had made an application for a residence card. The petitioner applied for a residence card in May 2013. In effect, therefore, his application is to be assessed under the Regulations before they were amended. But the introduction of transitional provisions in Schedule 3 to the 2013 Regulations is of some importance, because it shows a recognition that the substitution of Regulation 9 was necessary in order to effect a substantive change in the criteria by which the right of a family member to reside in the UK was to be assessed.
[27] Regulation 11 is headed “Right of admission to the United Kingdom”. It provides, so far as material, as follows:
“(1) An EEA national must be admitted to the United Kingdom if he produces on arrival a valid national identity card or passport issued by an EEA State.
(2) A person who is not an EEA national must be admitted to the United Kingdom if he is –
(a) a family member of an EEA national and produces on arrival a valid passport and a qualifying EEA State residence card, provided the conditions in regulation 19(2)(a) (non-EEA family member to be accompanying or joining EEA national in the United Kingdom) and
(b) (EEA national must have a right to reside in the United Kingdom under these Regulations) are met; or
(c) a family member of an EEA national … and produces on arrival –
(i) a valid passport; and
(ii) an EEA family permit, a residence card, a derivative residence card or a permanent residence card.”
It is para (2)(c) which is directly applicable to the case of the petitioner in this case.
[28] Part 3 of the EEA Regulations is headed “Residence documentation”. Regulation 17 is concerned with the issue of a residence card and, in connection therewith, a CoA. It provides, so far as material, as follows:
“17 – Issue of residence card
(1) The Secretary of State must issue a residence card to a person who is not an EEA national and is the family member of a qualified person or of an EEA national with a permanent right of residence under regulation 15 on application and production of [certain documents].
(2) The Secretary of State must issue a residence card to a person who is not an EEA national but who is a family member who has retained the right of residence on application and production of [certain documents].
(3) On receipt of an application under paragraph (1) or (2) and the documents that are required to accompany the application the Secretary of State shall immediately issue the applicant with a certificate of application for the residence card and the residence card shall be issued no later than six months after the date on which the application and documents are received.”
I have added the underlining to show the imperative and immediate terms of the requirement.
[29] Part 4 of the EEA Regulations is headed “Refusal of admission and removal etc”. Regulation 19 provides, so far as material, as follows:
“19 – Exclusion and removal from the United Kingdom
(1) A person is not entitled to be admitted to the United Kingdom by virtue of regulation 11 if his exclusion is justified on grounds of public policy, public security or public health in accordance with regulation 21.
(1A) A person is not entitled to be admitted to the United Kingdom by virtue of regulation 11 if that person is subject to a deportation or exclusion order.”
Regulation 19(1A) was amended with effect from 2014 to add some further words, but this does not affect the petitioner’s rights.
[30] Regulation 20 is concerned with the rights of the Secretary of State to refuse to issue, revoke or refuse to renew residence documentation including a residence card, on similar grounds. An explanation of what is meant by public policy, public security and public health grounds is given in Regulation 21 which provides, so far as material, as follows:
“21 – Decisions taken on public policy, public security and public health grounds
(1) In this regulation a “relevant decision” means an EEA decision taken on the grounds of public policy, public security and public health
(2) A relevant decision may not be taken to serve economic ends.
(3) A relevant decision may not be taken in respect of a person with a permanent right of residence under regulation 15 except on serious grounds of public policy or public security.
(4) A relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who [has resided in the UK for a continuous period of at least 10 years or is under the age of 18].
(5) Where a relevant decision is taken on grounds of public policy or public security it shall, in addition to complying with the preceding paragraphs of this regulation, be taken in accordance with the following principles –
(a) the decision must comply with the principle of proportionality;
(b) the decision must be based exclusively on the personal conduct of the person concerned;
(c) the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society;
(d) matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;
(e) a person’s previous criminal convictions do not in themselves justify the decision.”
An EEA decision is defined in Regulation 2 as meaning a decision under the EEA Regulations concerning a person’s entitlement to be admitted to the UK and his entitlement to be issued with or have renewed, or not to have revoked, a number of documents including a residence card. The definition does not in terms refer to a CoA but, since the right to a CoA is linked to the application for a residence card, it must follow that a decision concerning a CoA is one that “concerns” a person’s entitlement to be issued with or have renewed a residence card.
The petitioner’s history, application and related decisions and appeals
[31] On 24 August 2010 the petitioner was convicted of two offences in the United Kingdom, viz. procuring a false marriage and trying to obtain leave to remain in the United Kingdom by deception. For each of those two offences he was sentenced to six months imprisonment, the sentences to run consecutively. He made an application to the Secretary of State to remove him to Nigeria in exchange for commuting his sentence under the Facilitated Return Scheme. The Secretary of State accepted that application and issued a deportation order under section 32(5) of the UK Borders Act 2007. The petitioner was removed from the UK on 31 January 2011.
[32] In March 2011, while in Lagos, the petitioner married a British national, a Union citizen. They had been in a relationship since 2007 and there is no suggestion that that marriage was anything other than genuine. In 2012 they moved to Germany where the petitioner’s wife found intermittent employment for a short period in different places. In December 2012, while they were still in Germany, the petitioner’s wife gave birth to their son. In 2013 the petitioner and his wife returned to the UK with their young child.
[33] It is not clear exactly when the petitioner entered the United Kingdom at this time. Suffice it to say it is clear that he did so without entry clearance. At some time, probably early in 2013, he applied for entry clearance under Regulation 9 of the EEA Regulations. This was refused on 7 March 2013. The grounds for refusal were, first, that he had not provided evidence confirming that he was a family member of a person working or self-employed in another Member State prior to returning to the United Kingdom (the documents he had submitted were in German and he had not had them translated into English); and, second, that he was the subject of a Deportation Order as a result of which, under section 5(1) of the Immigration Act 1971 he was prohibited from entering the UK as long as the order was in force.
[34] Soon afterwards, on 14 May 2013, the petitioner applied for a residence card under Regulations 9 and 17 of the EEA Regulations. He was immediately issued with a CoA under Regulation 17(3).
[35] On 17 December 2013 the Secretary of State refused the petitioner’s application for a residence card on the basis that the petitioner had supplied insufficient evidence that his wife, a British citizen, was working or self-employed in another Member State (Germany) prior to coming back to the UK. This decision, issued over seven months after the application was made, was more than a month late, the obligation in the Regulation 17(3) of the EEA Regulations, matching that in Directive 2004/38, being to issue a residence card within 6 months of the application and, by necessary inference, to notify the applicant within that same period if, for whatever reason, his application for a residence card was to be refused.
[36] The petitioner appealed against that decision. On 25 March 2014 the FTT (Judge McGrade) refused his appeal. He decided, in short, that the length of the petitioner’s residence with his wife in Germany and the other circumstances of that residence were not such as to entitle the petitioner to succeed under Regulation 9: see in particular paras 15 and 16.
“15. I accept counsel’s submission that there is no minimum period of residence required in order to establish a derived right of residence under regulation 9. However, it cannot therefore follow that any period of stay, no matter how short, in another member state, will automatically give rise to a derived right of residence. In order to determine whether the Appellant can obtain a derived right of residence, I have to examine all the circumstances of the particular case. In carrying out that examination, I have to ensure that I do not reach a conclusion which would undermine an EU citizen’s exercise of the right to freedom of movement.
16. Following the Appellant’s return to Nigeria, he and his wife explored the possibility of travelling to Ireland as the parties did not wish to remain in Nigeria. When entry to Ireland proved difficult, they decided that they would relocate to Germany. I note the Appellant and [his] sponsor were both employed in Germany for only a very short period of time. While they remained in Germany, they travelled between a number of cities. There is no suggestion that either of them took any steps to learn German or that they put down roots in Germany. I accept that the Appellant was issued with an EU residence card and a social insurance card. I do not consider that it is appropriate to ignore the fact that the Appellant was convicted of two criminal offences arising from an attempt to obtain an EEA residence card by entering into a sham marriage and was deported from the United Kingdom. I consider their stay in Germany was clearly intended to enable them to return to the United Kingdom using the Surinder Singh route. Having lost employment very shortly after taking up that employment, both Appellants decided to leave Germany. I am not satisfied that the length of their residence in Germany and the other circumstances of that residence are such that the refusal of the application would undermine the sponsor’s freedom of movement. I therefore do not consider the Appellant is entitled to succeed under regulation 9.”
Judge McGrade then dealt with the Secretary of State’s second ground for refusing the application, namely that the petitioner posed a genuine, present and sufficiently serious threat to the fundamental interests of society entitling her to refuse the application under Regulation 20 of the EEA Regulations. In dealing with this ground of refusal, the Judge accepted that the petitioner had not been convicted of an offence which would lead to automatic deportation since neither offence had resulted in a period of imprisonment of 12 months or more. He concluded that while the offences of which the petitioner was convicted were serious offences and that he re-entered the United Kingdom while the deportation order was still in force, those offences and that conduct were not sufficiently serious to enable him to conclude that the petitioner posed a genuine, present and sufficiently serious threat. Accordingly, he concluded that the Secretary of State was not entitled to refuse the application under Regulation 20.
[37] The petitioner appealed, with leave, to the UT. There was no cross appeal by the Secretary of State against the FTT’s rejection of her reliance on Regulation 20 of the EEA Regulations. On 8 September 2014 the UT set aside the FTT’s determination, holding that the FTT and the Secretary of State ought to have treated the application as both an application for a residence card and also as an application to revoke the deportation order. The matter was remitted to the Secretary of State for a lawful decision to be made.
[38] On 3, 13 and 17 October 2014, while a new decision was awaited, the petitioner emailed the Secretary of State asking for a second CoA to be issued pending that decision being made. Each email generated a standard official response acknowledging his email requesting a duplicate CoA and stating that
“Duplicate CoAs will be issued where either:
- your CoA has expired and your application is still outstanding or
- your application has been refused but you are pursuing an appeal against that refusal decision.”
On about 21 October 2014 the petitioner was told that he was not entitled to a new CoA because he was an illegal entrant, having entered whilst subject to a deportation order, and the previous CoA was issued in error.
[39] On 12 January 2015 the Secretary of State made a new decision on the petitioner’s application for a residence card. That decision letter recited the reasoning of the FTT as to why the petitioner did not qualify for a residence card under Regulation 9 of the EEA Regulations, claimed that the UT had remitted the matter solely to enable the Secretary of State to make a decision on the deportation order without overturning the finding of the FTT about the petitioner not qualifying under Regulation 9, and stated that in those circumstances the petitioner was not entitled to have the deportation order revoked. The application for a residence card was refused.
[40] The petitioner appealed. On the 31 March 2015 the FTT (Judge Bradshaw) refused his appeal. His reasoning was essentially as follows:
(a) He held (at paras 67-71) that the deportation order had not been made in accordance with the law and should be revoked. The basis of the deportation order was that the petitioner was a “foreign criminal” as defined in section 32(1) of the UK Borders Act 2007, as a result of which, in terms of section 32(4) of that Act and section 3(5)(a) of the Immigration Act 1971, his deportation was conducive to the public good. However, a “foreign criminal” means a person who is sentenced to a period of imprisonment of at least 12 months; and, in terms of section 38(1)(b) of the 2007 Act, that does not include a person sentenced to 12 months imprisonment only by virtue of being given two shorter sentences which were to run concurrently. The petitioner was not, therefore, a “foreign criminal”; and the deportation order was not made in accordance with law and fell to be revoked.
(b) At para 73 he expressed his agreement with Judge McGrade’s conclusion that the Secretary of State was not entitled to refuse the application under Regulation 20 of the EEA Regulations.
(c) However, he held that the petitioner did not satisfy Regulation 9 of the EEA Regulations because of the length and quality of his and his wife’s residence in Germany. Having considered the evidence, he decided that the petitioner did not satisfy Regulation 9(2)(c) of the (amended) EEA Regulations, in that it had not been established that the centre of life of the petitioner’s wife had transferred to Germany where she claimed to have been a worker or self-employed person: see paras 74-84. Even if the centre of life test did not apply to the petitioner, the judge would still have concluded that the length of the residence of the petitioner and his spouse in Germany and the particular factors and circumstances relating thereto should result in the refusal of the application: see paras 85–87.
(d) At para 87 he agreed with Judge McGrade that their residence in Germany took place with a clear purpose of providing the petitioner with the opportunity of returning to the UK and gaining rights under Regulation 9 of the EEA Regulations.
Two other matters raised in Judge Bradshaw’s decision should be mentioned. First, he placed emphasis on, and drew adverse inferences from, the fact that the petitioner had entered the United Kingdom in breach of the deportation order, despite the fact that the deportation order was unlawful and fell to be revoked. Secondly, he placed considerable reliance on the approach and findings of Judge McGrade at the earlier hearing before the FTT.
[41] On 22 April 2015 permission was granted to appeal to the UT. The judge granting permission to appeal (Judge McCarthy) observed that Judge Bradshaw did not appear to have had “proper regard to the law that applied to the [petitioner’s] case.” He noted, among other things:
(a) That there was no (cross-) appeal against the decision that the deportation order was to be revoked; and that, therefore, that part of the decision must stand.
(b) That it was arguable that the Judge Bradshaw had erred by applying the amended terms of Regulation 9 of the EEA Regulations. The transitional provisions made it clear that the original terms of Regulation 9 applied, which terms “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”.
(c) That Judge Bradshaw had been wrong to take account of findings made by Judge McGrade at the earlier FTT hearing (see Secretary of State for the Home Department v D (Tamil) [2002] UKIAT 00702 (“Devaseelan”).
(d) That it was arguable that Judge Bradshaw, in considering the “motives” of the petitioner and his wife in taking up employment in Germany, had failed to have regard to the principles set out by the Court of Justice in Akrich and Metock.
In addition, Judge McCarthy found it “somewhat surprising” that much of Judge Bradshaw’s reasoning alluded to the fact of the appellant having entered the UK in breach of the deportation order.
[42] On 16 July 2015 the UT allowed the petitioner’s appeal and set aside the decision of the FTT. It noted that the application remains outstanding for a lawful decision by the Secretary of State. Its reasoning was, in short, as follows.
(a) It upheld the decision of the FTT to the effect that the deportation order should be revoked.
(b) It held – the matter was in fact conceded – that the FTT had erred in law because Judge Bradshaw had relied on findings of the earlier FTT decision which had been set aside.
Those two matters were sufficient to dispose of the appeal, without having to go into the other points raised by the petitioner, as identified by Judge McCarthy in giving permission to appeal to the UT. In consequence, the UT found that the Secretary of State still had to make a lawful decision on the petitioner’s application for a residence card, applying the discretion contained in Regulation 21 of the EEA Regulations and taking account of her powers in relation to deportation set against the particular facts and circumstances pertaining to the petitioner.
[43] The petitioner applied for permission to appeal against that decision of the UT. That was refused on 24 August 2015. That application for permission to appeal appears somewhat surprising given that the petitioner had been successful before the UT. But it may have been based on an assumption that, having allowed the appeal, the UT ought to have directed the Secretary of State to issue a residence card. What the UT did, quite correctly, was to set aside the decision of the FTT and, by implication, the Secretary of State, leaving it for the Secretary of State to make a new (lawful) decision.
[44] There the matter rests. The next step in the process is to await the decision of the Secretary of State on the petitioner’s application for a residence card. This will be the third time that the Secretary of State has been called upon to make a decision on that application. It is to be hoped that that decision will be lawful and will thus bring an end to these unduly prolonged proceedings. However, the applications and appeals to date have not been entirely unprofitable.
(1) In the first place, it has now been established that the deportation order was unlawful and falls to be revoked. It cannot legitimately form the basis of a further refusal.
(2) Secondly, though this has become apparent as much through this petition for judicial review as through the process of appeals through the FTT and the UT, it is now clear beyond doubt that the petitioner’s application for a residence card has to be determined on the basis of Regulation 9 of the EEA Regulations as they were in force when he made the application. It would not be right to determine the application on the basis that the amended Regulation 9(2)(c) applies. This is important because 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”.
(3) Third, as explained by the UT in its most recent decision, the question now appears to be focused on whether the Secretary of State can invoke Regulations 20 and 21 and refuse to issue a residence card on grounds of public policy or public security. That is, of course, in the first instance a matter for the Secretary of State, but her decision will be constrained by the terms of Regulation 21(5) and will be subject to appeal in the event that she reaches a decision which does not satisfy the criteria there laid down. She may also wish to have regard to what the FTT has said, twice on this matter. In para 18 of the first FTT decision, Judge McGrade said that he did not consider that the offences of which the petitioner had been convicted combined with his re-entering the UK while the purported deportation order was still in force were “sufficiently serious to enable me to conclude on the balance of probabilities that the [petitioner] poses a genuine, present and sufficiently serious threat to the fundamental interests of society”; and he concluded that the Secretary of State was not entitled to refuse the application under Regulation 20 of the EEA Regulations. There was no appeal by the Secretary of State against this part of Judge McGrade’s decision. In his decision of the 31 March 2015, the second FTT judge, Judge Bradshaw, expressed agreement with this view: see para 73. Again, this has not been challenged by the Secretary of State.
[45] I should add that, running in parallel with the petitioner’s claim for a residence card under Regulation 9 of the EEA Regulations, there is also a claim by the petitioner based on article 8 ECHR. I need not say anything about this since it is a separate point from that which is raised in the current proceedings.
Submissions
[46] Both parties helpfully produced written Notes of Argument. I am grateful to them for that. As I understand it, the petitioner was assisted in preparing his Note of Argument by a friend. Unfortunately, despite being permitted to do so, that friend was unable to assist the petitioner at the hearing before me. In those circumstances I asked Mr Gill, who appeared for the Secretary of State, to take me through the case under reference to his own Note of Argument, identifying as he went along with the points raised by the petitioner and the resulting issues to be decided. This was by no means an easy task. I am grateful to him for his assistance and for the thoroughness and fairness with which he presented the Secretary of State’s case and identified the contrary arguments put forward by the petitioner. I invited the petitioner to interrupt if he thought anything ought to be brought to my attention at any stage. This he did from time to time with restraint and courtesy. After Mr Gill had completed his submissions I invited the petitioner himself to make such additional points as he thought appropriate, and he did this briefly and to the point.
[47] The issue focused in the petition is whether the petitioner is entitled to damages as a result of the failure by the Secretary of State to issue him with a renewed CoA while his application for a residence card was being finally determined. By this I include the period after the initial decision to refuse the application during which the matter went to the FTT, the UT, back to the Secretary of State, back to the FTT and the UT and, finally, back to the Secretary of State who has still to make a lawful decision. But in order to deal with the claim for damages it is necessary to determine whether the Secretary of State was, in so failing, in breach of duties owed to the petitioner. And the court can, if appropriate, grant declarator in respect of that matter even if it were to hold that no damages are recoverable.
Petitioner’s case
[48] It is the petitioner’s case that he is entitled to be issued with a CoA immediately upon applying for a residence card; and that he is entitled to have the benefit of a valid and current CoA until his application for a residence card is finally determined. In support of that he points out that both in article 10 of Directive 2004/38 and in Regulation 17(3) of the EEA Regulations it is stated expressly that a CoA is to be issued “immediately” upon the application for a residence card being made. It is clearly intended that the applicant should have the benefit of a CoA until his application is finally determined. Until such time as he is granted a residence card, possession of a CoA is vitally important if he is to be able to gain employment. An employer is at risk of being penalised if he employs an illegal migrant worker: see section 15 of the Immigration, Asylum and Nationality Act 2006. It is a potential defence to any such penalty if the potential employee produces a CoA issued under Regulation 17(3) of the EEA Regulations: see section 15(3) and (7) of the 2006 Act and The Immigration (Restrictions on Employment) Order 2007, in particular article 4A and List B in the Schedule thereto. A CoA therefore opens the door to potential employment in the United Kingdom pending the issue of a residence card. The petitioner avers that he was offered a job as a “Christmas casual” with the Royal Mail in October 2014 subject to proof of his right to work in the United Kingdom. He applied for renewal of his CoA but this was refused. He was unable to take up that employment and lost earnings as a result. It is on this basis that he claims damages.
Arguments for the Secretary of State
[49] The argument for the Secretary of State has a number of different limbs. I set them out separately below. I have numbered them simply for the purpose of identification later in this Opinion.
[50] First, she argues that even if the petitioner was entitled to a CoA immediately upon applying for a residence card – and he was issued with a CoA at that time – he was not entitled to a replacement or renewal of that CoA once it had lapsed, even though the final decision on the residence card has not yet been made.
[51] Secondly, she argues that even if the respondent did have a duty to issue a second CoA, that duty was subject to her discretion not to do so on grounds of public policy, public security or public health; cf. article 27 of Directive 2004/38 and Regulations 19-21 of the EEA Regulations. Reliance was placed on the petitioner’s conduct in entering the United Kingdom in 2013 whilst the deportation order was extant. The petitioner was an “illegal entrant” in terms of section 33 of the Immigration Act 1971, committed a criminal offence under section 24 of that Act by entering the United Kingdom, and was removable as an illegal entrant under paragraph 9 of Schedule 2 to that Act. In those circumstances the Secretary of State was entitled to take the view that, on grounds of public policy, she was not required to issue the petitioner with a CoA. Even on the basis that the deportation order should not have been made, the petitioner was convicted of two offences of perjury, and that alone was sufficient to entitle the Secretary of State to take the view that, on grounds of public policy, she was not required to issue the petitioner with a CoA.
[52] Third, she submits that it cannot be determined whether the petitioner was entitled to a CoA at all until the application for a residence card has been determined. This argument is based on Regulation 19 of the EEA Regulations which provides that the EEA Regulations apply to a person who satisfies the conditions in Regulation 9. In other words, it is only by dint of the EEA Regulations that the petitioner has any right to be issued with a CoA. If the EEA Regulations do not apply to him, then he is not entitled to a CoA. If the petitioner satisfies the conditions in Regulation 9, then he will be entitled to a residence card, subject to the right of the Secretary of State to refuse admission or refuse to issue or renew residence documentation under Regulations 19-21. Only when and if it is found that the petitioner satisfies Regulation 9, and therefore is entitled to a residence card, subject to refusal under Regulations 19-21, can it be known whether he was entitled to be issued with a CoA at the time of his application for a residence card. This court was not entitled to make any finding that the refusal to issue a replacement CoA was unlawful until it was determined that the petitioner had any rights under the Directive. That was a matter in the first instance for the Secretary of State and, if her decision was appealed, for the Tribunal system. Until that matter has been determined in the appropriate forum, the claim in the petition is premature: Bellway Ltd v Strathclyde Regional Council 1979 SC 92.
[53] Fourth, the Secretary of State submits that as a matter of law any breach either of Directive 2004/38 or of the EEA Regulations is not of the kind which justifies the award of damages. She refers to cases such as Brasserie du Pecheur SA v Germany, R v Secretary of State for Transport, ex parte Factortame Ltd (No 4) [1996] QB 404, R v Secretary of State for Transport, ex parte Factortame Ltd (No 5) [2000] 1 AC 524, B v Home Office [2012] EWHC 226 (QB) [2012] 4 All ER 276, AD v Home Office [2015] EWHC 663 (QB).
[54] The fifth argument advanced by the Secretary of State is that there is no requirement either in Directive 2004/38 or in terms of the EEA Regulations for the CoA to say anything on it about the right to work. Putting that wording on the CoA is simply a domestic matter, done for administrative convenience. The Secretary of State would have been entitled to issue a CoA which was silent on the question of the right to work and the petitioner would have been no better off as regards his attempts to find employment.
[55] Finally, and sixthly, the Secretary of State argues that the petitioner has no basis for saying that he would necessarily have got the job. In particular, she says that he would not have got the job with the Royal Mail because of his previous convictions.
Discussion and decision
General
[56] In connection with the fourth argument advanced on behalf of the Secretary of State, Mr Gill was at pains to emphasise that the petitioner’ s claim was based on breach of EU law rather than on breach of statutory duty (viz the EEA Regulations). I should say at this early stage – though I do not think that it matters in the end result – that I do not accept that the petitioner’s claims are confined to a case based on breach of EU law. What he complains about is the failure to issue a CoA. The right to be issued a CoA is derived both from Directive 2004/38 and from the EEA Regulations. He is entitled to put his case on either basis or both. In his petition he does not limit himself to a case based on breach of obligations owed under the Directive. Even if he had done, the substance of the point is the same. I would not think it right to hold him to any particular formulation. I propose to proceed on the basis that I should consider the matter both under Directive 2004/38 and under the EEA Regulations.
[57] The second point to note at this stage is that neither the residence card nor the CoA of themselves confer on the holder – the non-Union family member of a Union citizen – the right to reside or work in a particular place. Their effect is merely declaratory of existing rights: see McCarthy at para 62. Such rights as there are exist independently of the issue of the residence card. They are derived from the rights enjoyed by Union citizens under article 21(1) of the Treaty on the Functioning of the European Union (“TFEU”) as amplified and strengthened by Directive 2004/38. As is made clear in the case of O v Minister voor Immigratie, Intergratie en Asiel at paras 34-36, the right of a Union citizen to “move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect” is conferred by article 21(1) TFEU. Directive 2004/38 aims to strengthen that right and facilitate its exercise. Neither article 21(1) TFEU nor Directive 2004/38 confer any autonomous right on third country nationals, i.e. nationals of non-Member States. Their rights are derived from the exercise by a Union citizen of his freedom to move and reside freely within the territory of Member States. Put short, it would be a deterrent or obstacle to that freedom of movement if a Union citizen could not take his spouse or other family member with him when moving to a Member State other than that of which he is a national; and, by the same process of reasoning, it would be a deterrent or obstacle to that freedom of movement if a Union citizen, having moved to a Member State of which he is not a national and settled there with his non-Union spouse and family, was unable subsequently to bring his spouse and family back to his home state. That is the route by which it has now been established that the spouse and other family members, who are not nationals of a Member State, nonetheless acquire rights to enter, reside and work in the Member State of which the Union citizen is a national. The issue of documentation is secondary to this. The right exists, in circumstances covered by Directive 2004/38, by virtue of article 21(1) TFEU and the Directive regardless of whether or not the individual non-Union spouse or other family member has been issued with a residence card or with a CoA.
[58] That is not, of course, to say that the residence card is unnecessary or that the non-Union spouse or family member can easily exercise of the right of free movement and the right to work without it. They cannot. They will face obstacles in attempting to enter the United Kingdom (and no doubt the same is true of other Member States, particularly in cases where they are trying to enter a non-Schengen country); and they will find it difficult, if not impossible, to obtain employment because of the need for employers to check the immigration status of those to whom they offer employment. The residence card issued to non-Union family members is a document which is intended to promote and facilitate the right of a Union citizen to move and reside freely within the territory of Member States – it does this by facilitating entry, residence and employment for his non-Union family members who are in possession of a residence card. Member states are in principle required to recognise a residence card issued under article 10 of Directive 2004/38 and allow the holder of such a card entry into their territory without a visa or other entry requirement: McCarthy at paras 62-66. Regulation 11(2) of the EEA Regulations confirms this by providing that a non-EEA family member of an EEA national must be admitted to the United Kingdom if he or she produces a residence card on arrival (in addition, of course, to a valid passport).
Was the Secretary of State in breach in refusing to issue a replacement CoA?
[59] Against this background it is convenient to deal first with the third argument advanced on behalf of the Secretary of State, namely that the petitioner’s right to be issued with a CoA depended upon whether it was ultimately found that he was a family member satisfying the conditions of Regulation 9 of the EEA Regulations. That argument derives some support from a literal reading of Regulation 9(1) which states, in terms, that the EEA Regulations apply and apply only to a family member of a British citizen if the conditions in Regulation 9(2) are satisfied. Since the right to a CoA, under domestic law at least, depends on the EEA Regulations, and those Regulations do not apply to an individual who does not satisfy the conditions in Regulation 9(2), then the question whether a person is entitled to be issued with a CoA must depend upon whether that person satisfies those conditions. A problem with this argument, even adopting the same literal approach to the Regulations, is that, for example, the Regulations also confer rights of appeal against EEA decisions, including for example a decision that a non-Union spouse or other family member does not satisfy the conditions set out in Regulation 9(2) and therefore is not entitled to a residence card. This literal construction would therefore, in some cases, make rights of appeal contingent upon the merits of the appeal itself. That cannot be right. It seems to me that this literal semantic approach does not assist. However, the real problem with this argument for the Secretary of State is that, if correct, it would completely undermine the purpose of issuing a CoA and would be at odds with the strict requirement of Regulation 17(3). Regulation 17 is directed towards the issue of a residence card. It is recognised that a person’s entitlement to be issued with a residence card must depend upon whether he satisfies the conditions in Regulation 9(2). That will require investigation. Investigation takes time. To that end Regulation 17(3) provides that the residence card must be issued no later than six months after the date on which the application was made. In the meantime, as soon as an application is made, a CoA must be issued “immediately”. “Immediately” means what it says. It does not mean only after the Secretary of State has satisfied herself that the applicant is a family member who satisfies the conditions in Regulation 9(2). If the obligation to issue a CoA depended upon the same enquiries as are required to be satisfied before the Secretary of State issues a residence card, there would be absolutely no purpose in the provisions concerning the CoA; since the assessment of whether the applicant was entitled to be issued with a CoA would coincide with the determination of whether he or she was entitled to be issued with a residence permit. The purpose of requiring a CoA to be issued immediately upon the application for a residence card being made is to give the family member applying for a residence card some document with temporary effect enabling him, while it remains in force, to enter into, reside and work in the United Kingdom. This is consistent with the aim of Directive 2004/38 to facilitate the free movement of Union citizens within the Member States of the Union by removing all unnecessary obstacles to their movement and that of the family members who satisfy the requirements of the Directive.
[60] Even if the argument for the Secretary of State on this point was correct as a matter of construction of the EEA Regulations, there is this further difficulty, namely that there is no support for it in Directive 2004/38 itself. Article 10 of the Directive again contrasts the six months allowed for the issue of a residence card with the obligation to issue a CoA “immediately”. Article 3 provides that the Directive applies to all Union citizens who move to or reside in a Member State other than that of which they are national, and to their family members as defined in article 2. That includes a spouse. There is nothing in the Directive equivalent to Regulation 9 of the EEA Regulations which could give rise to an argument that the obligation in article 10 to issue a CoA immediately upon receipt of an application for a residence card is in any way qualified by a consideration of whether that person is ultimately found to be entitled to a residence card. It is plain, in my view, that no such qualification is intended. As I have already pointed out, the intent behind the residence card regime is to facilitate entry by non-Union family members in order to facilitate the free movement of Union citizens across the Union. While it is clearly recognised that it may take time to verify whether a person applying for a residence card is entitled to one, the intent is that while that investigation is being undertaken the applicant should be given a CoA as a temporary measure. It follows, therefore, that if, as the Secretary of State contends, there is no obligation to issue a CoA unless and until it is determined that the applicant meets the conditions set out in Regulation 9(2), that is an obstacle to free movement which is not permitted by Directive 2004/38 and cannot be relied upon.
[61] I turn next to consider the first argument raised by the Secretary of State, namely that even if there is an obligation to issue a CoA immediately upon receipt of the application for a residence card, there is no obligation to renew it or issue a further CoA once it has lapsed, even though no lawful decision has been made on the application for a residence card. This is a surprising submission, given that the purpose of the CoA is to give the applicant for a residence card some temporary documentation pending the decision on his application. It is true that neither Regulation 17(3) of the EEA Regulations nor article 10 of Directive 2004/38 deals with this particular difficulty. Both of those provisions specifically require the residence card to be issued within six months of the application. Neither of those provisions specifies the required duration of the CoA. Clearly, however, it is intended that the CoA should remain in force until the application for a residence card is determined. It would be perverse, for example, if the Secretary of State were to issue a CoA valid for only two months if the normal time for dealing with applications for a residence card was in the region of six months. Although on a literal interpretation of the Regulations and the Directive this would be possible, it would make no sense. The practice, as I understand it, in the United Kingdom is for a CoA to state that it can be relied upon by employers, as part of the checks that they have to make before employing a person whose immigration status is uncertain, only for a period of six months after its issue. That may well make administrative sense, and I make no criticism of it. But that cannot be elevated into a principle that six months is the maximum duration of a CoA and, if the application for a residence card is not determined within that period, the CoA will lapse and not be renewed.
[62] I therefore reject that submission. But before leaving this point I should note that the Secretary of State appears to follow a practice of issuing duplicate CoAs if the original CoA has expired while the application for a residence card is still outstanding or there is an appeal against the refusal. That is clearly a sensible policy. It does not appear to reflect the Secretary of State’s position, if it is indeed her position, that there is no obligation to issue a replacement or duplicate CoA in such circumstances.
[63] The second argument for the Secretary of State is that, even if she was otherwise obliged to issue a CoA or a replacement CoA in circumstances were the application for a residence card had not yet been determined, she does not have to do so in the present case because the petitioner entered the United Kingdom in 2013 whilst subject to a deportation order and is not entitled to a CoA whilst that deportation order is in force. She takes this point notwithstanding that it is now accepted that the deportation order was not lawfully made, the petitioner not having been sentenced to a term of imprisonment of 12 months or more within the meaning of the legislation. She goes on to say that, regardless of whether or not the deportation order should have been made, the petitioner has been convicted of two offences of perjury, and that alone is sufficient to entitle her to take the view that, on grounds of public policy, she is not required to issue the petitioner with a CoA.
[64] It is not clear to me whether or not the deportation order remains in force. After the matter was first remitted to her by the UT in September 2014, the Secretary of State refused to revoke the deportation order, notwithstanding the clear observations of Judge McGrade to the effect that it ought not to have been made. Subsequently Judge Bradshaw also held that it should not have been made and that it should be revoked. In July 2015 the UT held that decision that the deportation order should be revoked. I do not know whether it has yet been revoked. If it has not yet been revoked, it should be revoked forthwith. That would remove that obstacle to the issue of a duplicate CoA. The Secretary of State cannot legitimately fail to carry out the un-appealed findings of the FTT and UT and then use the existence of the unlawful deportation order to block the petitioner’s right to a CoA.
[65] This second argument is bad for other reasons too. The right of a family member to a residence card is, of course, qualified by the right of Member States to restrict freedom of movement and residence of Union citizens and their family members on grounds of “public policy, public security or public health”: see article 27 of Directive 2004/38 and Regulations 20 and 21 of the EEA Regulations. The same criteria apply to “expulsion” (article 28) and “exclusion and removal from the United Kingdom” (Regulation 19). That is the limit of the qualification. Unless the case falls within those provisions, a residence card must be issued to a family member who qualifies for one. Both the Directive and the EEA Regulations are clear. In terms of article 27, measures taken on grounds of public policy – and we are here dealing with public policy – must comply with the principle of proportionality. Such measures shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures. The personal conduct of the individual concerned must represent “a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.” Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted. Regulation 21 of the EEA Regulations is to the same effect. Accordingly, a general policy to the effect that a CoA shall not be issued to anyone who has entered the United Kingdom illegally, or in breach of the terms of a deportation order, is invalid because it is not based exclusively on the personal conduct of the individual applicant and appears to be based on considerations of general prevention. On the material I have seen, there has been no assessment of whether the petitioner’s own personal conduct represents a genuine, present and sufficiently serious threat to one of the fundamental interests of society. It is difficult to see how it could. Two immigration judges (Judge McGrade and Judge Bradshaw) have held that the circumstances are not such as to entitle the Secretary of State to rely upon this qualification to her obligation to issue a residence card to the petitioner. She has not appealed either decision. Although the matter has now been remitted to her on the basis, as I understand it, that it is for her to consider whether she is entitled to rely upon Regulation 21, it is difficult to see how that remains open to her in light of the previous un-appealed findings of the FTT: see R (Boafo) v Secretary of State for the Home Department [2002] 1 WLR 1919 at para 26, Secretary of State for the Home Department v TB (Jamaica) [2008] EWCA Civ 977 at paras 32-36, and Chomanga (Binding effect of unappealed decisions) Zimbabwe [2011] Imm AR 813. Even if it is open to her to do so, I cannot see how she could legitimately come to a conclusion on this point different from that reached by Judges McGrade and Bradshaw. Although the petitioner’s conduct leading to the two convictions was both serious and reprehensible, those offences were committed in 2010, over five years ago. The question for the Secretary of State is whether the petitioner’s personal conduct represents a genuine present threat to one of the fundamental interests of society sufficiently serious to justify excluding the petitioner from the United Kingdom on grounds of public policy. There are three separate elements to that. One is the question whether the commission of offences of that sort can really mean that the petitioner poses a serious threat to one of the fundamental interests of society. The second is whether, even if they might have done in the immediate aftermath of the commission, those offences show that the petitioner is still presents a threat of that gravity now. And the third is whether exclusion from the United Kingdom and the refusal to grant a residence card is a proportionate response, having regard to the impact of the petitioner’s exclusion from the United Kingdom would have on the fundamental principle of freedom of movement of Union citizens such as his wife. Unless there is some material before the Secretary of State which has not been hinted at in the papers before me – and it was not suggested that there was any such material – it seems to me inevitable that these questions will have to be answered in the negative. In those circumstances neither article 27 nor Regulations 19-21 can be relied upon as a justification for not issuing a CoA to the petitioner.
[66] But there is also a further, and much simpler, reason why this argument is bad. If the Secretary of State has made a decision that she is entitled to invoke this public policy exception contained in article 27 and Regulations 19-21, then that would entitle her to refuse the application for a residence card. She has not done so. Presumably that is because she has not yet made a decision on this point. If she makes a decision and, in consequence, refuses the application for a residence card, then, subject to the petitioner’s rights of appeal, that is the end of it. Any CoA which she has issued will fall. But while the application for a residence card is extant, she must issue a CoA. She cannot be in a position where, not having yet determined the public policy point in the context of considering the application for a residence card, she can claim to have made a decision on that point so as to justify her refusal to issue a renewed CoA.
[67] I therefore reject the first three arguments advanced by the Secretary of State to justify her refusal to issue the petitioner with a replacement CoA. The other arguments relate to the claim for damages. However, before leaving this part of the case I should deal briefly with the possibility that I am wrong in my disposal of the third point raised by the Secretary of State. That was the argument that it was not possible yet to say whether the petitioner was entitled to a CoA since that depended on whether he satisfied the conditions set out in Regulation 9(2) of the EEA Regulations. I have already given my reasons for rejecting that argument. However, in case the matter goes further, I should set out my conclusions on the basis that that argument may be correct.
[68] Having raised the argument, Mr Gill submitted that this court should not reach any conclusion on the point; and that, to that extent, this petition is premature and should be dismissed. The question of whether the petitioner satisfied the conditions in Regulation 9(2) was, he said, a matter first for the Secretary of State and then, in the event of an appeal, for the Immigration and Asylum Tribunal. He relied on the decision of Lord Brand in Bellway Ltd v Strathclyde Regional Council 1979 SC 92 at page 97. I do not find that case to be of any assistance. The circumstances were quite different. In the present case the decision of the Secretary of State which has been appealed to the Immigration and Asylum Tribunal and twice remitted back to her is a decision as to whether or not to grant the petitioner a residence card. In that context one of the questions to be determined is whether the petitioner satisfies the conditions in Regulation 9(2) of the EEA Regulations and/or satisfies the requirements under EU law, subject to the public policy exception discussed above. But the petition before me concerns the refusal of the Secretary of State to issue a CoA. It has not been suggested that judicial review of that decision is not competent. It was not suggested, for example, that the petitioner should have appealed that decision to the Tribunal. In those circumstances, where the issue is properly before the court, the court must decide it, even though a similar issue arises for decision in a slightly different context elsewhere. Further, in Bellway Lord Brand was clearly influenced by the fact that ultimately, when the Secretary of State had made the relevant decision and the appeal process had taken its course, the pursuer could be restored against any antecedent irregularity, invalidity or nullity. In such circumstances the pursuer was not prejudiced by having to wait for that process to be completed. The position in the present case is quite different. If the petitioner is correct in this case he is entitled to his CoA now, not after months or years of deliberation. Any delay in issuing him with a CoA is potentially prejudicial. Accordingly, the court must deal with the point.
[69] The two decisions in the FTT, no doubt reflecting submissions made on behalf of the Secretary of State, place much emphasis on the short time which the petitioner and his wife, a Union citizen, spent in Germany before returning to the United Kingdom, the transient nature of their residence there, and the short time during which they were employed. Those might be relevant considerations if the matter was being considered under Directive 2004/38 in light of the developing case law from the Court of Justice. But 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. 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. In the result, therefore, while factors of the type mentioned by Judges McGrade and Bradshaw might well be relevant to a claim brought directly under the Directive, and might be relevant also to a consideration of a claim brought under the terms of the amended Regulation 9 of the EEA Regulations, they are not relevant to a consideration of whether the petitioner meets the requirements of Regulation 9 as it existed at the time of his application and as is applicable to his case. 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.
[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.
[71] Both Judge McGrade and Judge Bradshaw questioned the motives of the petitioner and his wife in moving to live and work in Germany. Judge McGrade formed the view that “their stay in Germany was clearly intended to enable them to return to the United Kingdom using the Surinder Singh route.” Judge Bradshaw agreed with him. With great respect to both of them, as pointed out by Judge McCarthy in granting permission to appeal to the UT, it is clear from the decision of the Court of Justice in Akrich that this consideration is irrelevant to a proper determination of the petitioner’s claim.
[72] Accordingly, even if the Secretary of State is correct in saying that the question of whether the petitioners are entitled to a CoA is dependent upon the answer to whether he satisfies the conditions in Regulation 9(2) of the EEA Regulations, I am satisfied that he does; and there is therefore no basis for refusing to issue the CoA.
Damages - liability in principle
[73] I turn next to consider the question of damages. I deal first with the applicable test.
[74] The test is laid down in Brasserie du Pecheur at para 51ff. It has recently been repeated in Ogieriakhi at para 50ff. In a case where the state acts in breach of European Union law, there is a right to reparation for the individual affected by that breach where three conditions are met: (1) the rule of law infringed must be intended to confer rights on individuals; (2) the breach must be sufficiently serious; and (3) there must be a direct causal link between the breach of the obligation resting on the state and the damage sustained by the injured party.
[75] There was no dispute that the first condition was met.
[76] As to the second condition (“sufficiently serious”), the decisive test is whether the Member State manifestly and gravely disregarded the limits of its discretion. In deciding this question the court may take into account factors such as the degree of clarity and precision of the rule infringed, the measure of discretion left by that rule to the national authorities, whether the infringement or the damage caused was intentional or in voluntary, and whether any error of law is excusable or inexcusable: Brasserie du Pecheur at paras 55-56 and see Ogieriakhi at para 51. As was made clear in Factortame (No 5), no one factor is decisive, nor is it necessarily helpful to compare other decisions by other judges on different facts. The assessment has to be made on a case-by-case basis.
[77] I have no doubt that the breach here was sufficiently serious to justify, in principle, an award of damages against the Secretary of State. In my opinion the terms of Directive 2004/38 leave no room for doubt that the CoA must be issued immediately on the application for a residence card being made. The wording of article 10 is perfectly clear. So, for that matter, is the wording of Regulation 17(3). It is equally clear that the purpose of the CoA is to provide some temporary documentation pending the assessment of whether the applicant is entitled to a residence card. That is why it has to be issued immediately upon receipt of the application for a residence card. I regard the proposition that the obligation to issue a CoA depended upon an assessment of the very facts which went to the question of whether a residence card should be issued as unarguable. I also regard as unarguable the submission that, even if there was an obligation to issue a CoA, there was no obligation to renew it or maintain its validity in circumstances where the application for a residence card had not yet been determined. Whatever may be the complexities on the question of what amount of residence and employment/self-employment in a Member State of which the Union citizen is not a national is required before a Union citizen is entitled to bring his spouse or other family member back to his home state when he returns there, none of that affects the very simple point (i) that a CoA must be issued immediately on receipt of an application for a residence card accompanied by the relevant supporting documents, and (ii) that it must remain in force or be renewed or replaced so as to cover the whole period until the application for a residence card is finally determined. I do not regard reliance on the public policy exception in article 27 of Directive 2004/38 as tenable having regard to the very precise definition of the circumstances which may be taken into account and the assessment that has to be made. That is so whether or not the deportation order was valid at the time it was made all was still in force at the time the petitioner entered the United Kingdom in 2013. The relevant rules of European law on these narrow points are clear and precise. I cannot judge whether the infringement of that rule was intentional or not. But I do regard it as inexcusable.
[78] In those circumstances the petitioner is in principle entitled to damages.
Causation and proof of damage
[79] That leads to the third condition for claiming damages which is that there must be a direct causal link between the breach of the obligation resting on the state and the damage sustained by the injured party. This is hardly surprising and reflects the position in domestic law.
[80] It is convenient here to refer to the fifth argument raised by the Secretary of State. This was to the effect that even if she was required to issue a CoA immediately upon receipt of the application for a residence card and to renew it or otherwise keep it in force until the application for a residence card was finally determined, she was not required either under Directive 2004/38 or in terms of the EEA Regulations to issue a CoA stating that it entitled the petitioner to work while in the United Kingdom. She would have been entitled to issue a CoA which was silent on the question of the right to work and, had she done so, the petitioner would have been no better off as regards his attempts to find employment.
[81] This argument is unfounded, for two reasons. First, as I was told by Mr Gill, as a matter of practice the Secretary of State does issue CoAs in a form which state on their face that the holder has the right to work in the United Kingdom. That is what would have happened had a CoA been issued, and on that basis the petitioner would have been entitled to gain employment. Secondly, it is in any event clear from the scheme of Directive 2004/38 that the CoA is intended to be a temporary document putting the holder, who has applied for a residence card, temporarily in the position that he would be in if a residence card were subsequently to be granted. Neither the residence card nor the CoA create rights. They simply evidence the existence of rights conferred by Union law. Those rights include to right to live and work in the Member State of which the Union citizen is a national. If a CoA was issued in such circumstances without any recognition of the right to work in the United Kingdom pending determination of the application for a residence card, and the right to work was in practice impeded by the absence of some appropriate wording on the CoA, that would be contrary to EU law. The right to work need not, of course, be stated on the CoA itself. What is required is that there is a system under which a person who has applied for a residence card is able to live and work in the United Kingdom pending the determination of that application. If that is denied, the United Kingdom is in breach of EU law.
[82] Turning to the question of causation, in bringing this petition the petitioner relied upon the fact that in October 2014 he had been offered employment as a Christmas casual with the Royal Mail in the period leading up to Christmas, subject to proof of his right to work within the United Kingdom. Had he been issued with a CoA he would have been able to take up that offer of employment.
[83] Presented like that, his case is attractively simple. However, there are difficulties. When he presented the petition as a party litigant, the petitioner sought leave to proceed without a duly authorised symmetry in terms of Rule of Court 4.2(5). Leave was granted by Lord Stewart. When granting leave, Lord Stewart provided a short Note expressing some reservations about the prospect of the claim for damages succeeding. He considered that, had the petitioner made full disclosure of his convictions, it was unlikely that the Royal Mail would have employed him. On receipt of that Note, and after a procedural first hearing in the petition, the petitioner lodged a supplemental Note of Argument explaining that when applying to the Royal Mail he had assumed that his conviction was spent under the Rehabilitation of Offenders legislation. He wrongly proceeded on the basis that his conviction became spent four years after the date of conviction. In fact it will only become spent in Scotland on 13 October 2020 (and in England on 13 October 2015). As I understand it, therefore, he now accepts that he would not have been able to take up the job offered by the Royal Mail. This does not mean, however, that he would have been unable to obtain any employment. He now avers that he believes that he would have secured other employment if the Royal Mail job had fallen through.
[84] I can well understand that had the petitioner been unable to seek work with the Royal Mail he would have looked for work elsewhere. The question is, however, with what success that search would have been rewarded. This matter was not explored fully in the hearing before me. It seems to me that the appropriate course on this issue is to put the case out By Order to see whether the damages claim is pursued and, if so, on what factual basis.
[85] During the course of the hearing I raised the question whether, even if no pecuniary loss could be shown on balance of probabilities, there was scope for damages to be awarded for disappointment, frustration and anxiety by analogy with the approach in Human Rights cases: c.f. R (Sturnham) v Parole Board [2013] 2 AC 254, R (Haney) v Secretary of State for Justice [2015] 1 AC 1344. Mr Gill submitted that that was not the appropriate course, damages in a Human Rights case being a matter regulated, to some extent at least, by section 8 of the Human Rights Act 1998. That may be a legitimate distinction. But, if the question of damages is to be pursued, I would wish to have further assistance on this point too.
Damages for breach of statutory duty
[86] I should note that although I have found the Secretary of State to be in breach of obligations under EU law, I could equally have found her to be in breach of statutory duty in terms of the EEA Regulations. I was not addressed fully on the test to be applied for the award of damages for breach of statutory duty. I was referred, though not at length, to the decision of the High Court in B v Home Office [2012] 4 All ER 276, which identified a rather different test for breach of statutory duty to that which has been held to apply in cases of breach of EU law. I need not go into this. Suffice it to say that it seems to me both surprising and somewhat anomalous if the test for claiming damages for breach of a rule of EU law such as Directive 2004/38 differed materially from the test for claiming damages for breach of the domestic legislation, the EEA Regulations, which were designed to implement that Directive. But that may well be the law.
Disposal
[87] I propose to put the case out By Order to consider the terms of an interlocutor to reflect the findings of breach in this Opinion. It seems to me that I ought to pronounce declarator that the Secretary of State is in breach of her duties owed to the petitioner under EU law by refusing to issue him with a replacement Certificate of Application pursuant to his request in October 2014. I would welcome input from parties as to the precise terms of that declarator. I am minded also to order the Secretary of State to issue a Certificate of Application to the petitioner forthwith, unless by then this has already been done.
[88] At that By Order hearing I will require to be addressed by the petitioner as to whether he intends to insist on a claim for damages and, if so, on what basis. If he does wish to insist on a claim for damages, he may need to consider seeking leave to amend the petition. I will, of course, hear counsel for the Secretary of State on all such matters.
[89] I shall reserve meantime all questions of expenses.