FK ( Kenya) v Secretary of state for the Home department [2010] EWCA Civ 1302

Case No C5 / 2009 / 1354[2010] EWCA Civ 1302IN THE COURT OF APPEAL ( CIVIL DIVISION )ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL[AIT No: IA/17720/2008]Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday, 26 th October 2010
Before
LORD JUSTICE MAURICE KAYLORD JUSTICE LLOYDLORD JUSTICE SULLIVAN
Between
FK ( Kenya )AppellantSecretary of State for theRespondentHome DepartmentRespondent
( DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court )
Ms Nwamaka Nnamani (instructed by OJN Solicitors) appeared for Appellant.Ms Julie Anderson (instructed by the Treasury Solicitors) appeared for Respondent.
Judgment

Introduction

[1]This is an appeal against a determination promulgated on 7 May 2009 from Immigration Judge Grant's determination dismissing the appellant's appeals under regulation 26 of the Immigration (European Economic Area) Regulations 2006 ("the Regulations") and Article 8 of the European Convention on Human Rights ("the Convention") against the respondent's decision contained in a reasons for refusal letter dated 9 October 2008 ("the decision letter") to refuse his application for a permanent residence card under the Regulations as confirmation of his right to reside in the United Kingdom.[2]The Immigration Judge considered the appellant's appeals under both the Regulations and Article 8 because the decision letter said that if the appellant appealed against the refusal he did not have to leave the United Kingdom while his appeal was in progress, but then went on to say:
"However if your appeal is unsuccessful and you do not leave the United Kingdom voluntarily you will be removed to Kenya."
[3]The appellant appealed under the Regulations. In his grounds of appeal to the AIT he said that although the respondent's decision was not a removal decision, it had the same effect as such a decision and was thus a "disproportionate interference with his family right".

Factual background

[4]The appellant is a citizen of Kenya, born on 8 January 1987. In 1990 when he was three and a half he left Kenya with his mother to live in South Africa. There she married a Mr Schumacher, a Swiss national. She acquired Swiss nationality by marriage in 1991. The appellant came to the United Kingdom in 2000 with his mother when he was 13 years old. At that time his mother was married to Mr Gysler, another Swiss national. The marriage to Mr Gysler ended in 2003, and towards the end of 2003 the appellant's mother began to live with a Mr Simmons, a United Kingdom national. The appellant's mother and Mr Simmons have a daughter, born on 29 November 2006. At the time of the appeal before Immigration Judge Grant, they were expecting another child. That child has since been born.[5]The application which was refused by the respondent was made by the appellant's mother on 8 February 2008. She applied under the Regulations for a residence permit for herself with the appellant as her dependent even though he was just over 21 years old at the time. The relevant extracts from the Regulations are set out in paragraph 5 of the determination. The appellant's mother had not worked nor had she been self employed in the United Kingdom. She applied for a residence permit on the basis that she was a "self sufficient person".[6]Regulation 4(1)(c) defines a self-sufficient person for the purposes of the Regulations as someone who has sufficient resources not to become a burden on the United Kingdom social assistance system and "comprehensive sickness insurance cover in the United Kingdom". The basis of the appellant's claim under the Regulations was that he was a family member of an EEA national (his mother) because although he was over 21 he was her son and he was a dependent of hers and he was a person "who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years" (see Regulation 15(1)(b)).[7]Where a family member's right to reside is dependent on their being a family member of the "self sufficient person", the requirement for that person to have comprehensive sickness insurance cover in the United Kingdom “shall only be satisfied if he and his family members have such cover" (see Regulation 4(2)(b)).[8]In summary, in order for her application under the Regulations as a self-sufficient person to succeed with the appellant as her dependent, the appellant's mother had to show that she had comprehensive sickness insurance cover for herself and the appellant. The respondent twice requested evidence that the appellant's mother had been exercising EU Treaty rights for five years and had held comprehensive sickness insurance cover for that period. No such evidence was provided to the respondent.[9]The appellant's mother's application was refused. She did not appeal but the appellant did. As I have mentioned, in addition to the contention that he was entitled to a residence permit under the Regulations, the appellant also raised the question of interference with his Article 8 rights.[10]His appeal was heard by Immigration Judge Froom and dismissed in a determination dated 24 November 2008. Reconsideration was ordered by Pitchford J (as he then was) and that reconsideration was carried out by Immigration Judge Grant in the determination under challenge in this appeal.

The determination

[11]It was agreed that since the salient facts were not in dispute, the redetermination could be dealt with by legal submissions only. The only additions to the documents that had been before Immigration Judge Froom were a copy of the decision of the Grand Chamber of the European Court of Human Rights in Mazlov v Austria 1638/03 [2008] ECHR 546 and a recent health insurance policy for the appellant and his mother. The policy commenced on 16 February 2009, some two months before the hearing took place on 24 April 2009.[12]Immigration Judge Grant's determination is lengthy and careful. In summary the Immigration Judge concluded that:(i) The appeal under the Regulations failed: "11. I find the appellant is not entitled to permanent residence under regulation 15. I find he has not complied with residence conditions for five years because his sponsor has not exercised her Treaty Rights in the United Kingdom in that time. I find the sponsor is not qualified as a self sufficient person. I find the sponsor did not have comprehensive sickness insurance."(ii) The decision of the ECJ in MRAX (Free Movement of Persons) [2002] ECR 1-5691 (ECJ C-459/99) could be distinguished because: "39. Unlike the parties affected in MRAX this is not a case where the appellant has lived with a family member exercising Treaty Rights in the United Kingdom and, but for a formality he would be entitled to a residence permit. His mother was not exercising Treaty Rights for the preceding five years on any basis. In MRAX the qualified person was always exercising treaty Rights and the issue in the appeal concerned the issue of a residence permit to a spouse who had entered the EU country unlawfully in breach of the requirements of the Directive. In this appeal the appellant's sponsor was not herself exercising Treaty Rights or herself entitled to permanent residence as a self-sufficient person because she did not have comprehensive sickness insurance cover in the UK. Nor did the appellant."(iii) Applying the decision in Kugathas v SSHD [2003] EWCA Civ 31, the appellant as an adult male had not established that there would be a breach of his rights under Article 8 to respect for his family life because he had not shown any ties with his mother and stepfather beyond the emotional ties which normally exist between adult relatives (paragraph 19).(iv) While the removal of the appellant would be an interference with his right to respect for his private life under Article 8, such a decision would be "entirely proportionate to the aims to be achieved on the facts as I have found them" (paragraph 42).[13]Pausing there, when considering the merits of the appellant's appeal on Article 8 grounds against the determination, it must be remembered that the Secretary of State's decision which was under appeal was not a removal decision. All that the Secretary of State had done was to refuse to issue the appellant with a permanent residence card. Strictly speaking, the question is whether that decision was a disproportionate interference with the appellant's Article 8 rights. However, the Immigration Judge can be forgiven for approaching the Article 8 issue as she did because it was being submitted on behalf of the appellant that the decision to refuse him a permanent residence card was tantamount to a removal decision.

Discussion

[14]In my judgment this appeal raises four questions:(i) Did the Immigration Judge err in concluding that the appeal under the Regulations must fail because the appellant's mother did not qualify as a self-sufficient person?(ii) Was the Immigration Judge correct in distinguishing the MRAX case?(iii) Was the Immigration Judge reasonably entitled to conclude that as an adult the appellant did not enjoy family life with his mother, stepfather and young half-sister?(iv) Was the Immigration Judge reasonably entitled to conclude that the interference with the appellant's private life caused by removal would be proportionate?

Question (i): The Regulations

[15]On the unchallenged factual findings of the Immigration Judge, her conclusion that the appellant did not have the right of permanent residence under Regulation 15 because the sponsor (his mother) had not resided in the United Kingdom in accordance with the Regulations for five years was plainly correct. The health insurance policy that commenced on 16 February 2009 was not comprehensive for the reasons given by the Immigration Judge in paragraph 7 of the determination, and even if it had been a comprehensive sickness insurance policy rather than a policy which was "designed to complement rather than replace all services provided by the NHS", it had not been in force for a period of five years, whether that five year period is taken as the period preceding the sponsor's application or the period preceding the reconsideration hearing before Immigration Judge Grant. The requirement that there be comprehensive sickness insurance cover is not a mere formality, as was submitted by Ms Nnamani on behalf of the appellant, it is an integral part of the concept of self-sufficiency under the Regulations. The Regulations give effect to the United Kingdom's obligations under EU law to facilitate the free movement, not merely of workers and those who are self-employed, but also those who are self-sufficient together in each case with their family members. A requirement that a person be self-sufficient is no less a matter of substance than a requirement that a person be either employed or self-employed. A person who has to rely on the United Kingdom's National Health Service is no more self-sufficient than a person whose resources are inadequate so that he may become a burden on the United Kingdom's social assistance system. Thus there was in this case a complete failure to comply with a fundamental requirement of the Rules.

Question (ii): MRAX

[16]In my judgment the Immigration Judge was right to distinguish the ECJ's decision in MRAX for the reasons she gave. As the Immigration Judge pointed out, this is not a case where the appellant was a person who was living with a family member who was exercising treaty rights in the United Kingdom and who would be entitled to a residence permit as part of that person's family but for some legal formality peculiar to United Kingdom domestic law which was concerned with entry control. It was not submitted on behalf of the appellant that the Regulations did not give effect to the directives which deal with the free movement of those who are employed, self-employed or self-sufficient and their families. The appellant's mother was not exercising treaty rights for the five years preceding her application for a residence permit for the appellant. Ms Nnamani submitted that the requirement that there should be comprehensive sickness insurance for a period of five years was a formality which effectively restricted free movement contrary to community law. For the reasons I have given above, I do not accept that the requirement is a mere formality. It is a matter of substance which goes to the heart of self-sufficiency and that in turn goes to the heart of the question: what kinds of person are entitled to free movement within the community under EU law. This case is wholly different from a case such as MRAX where a person who would otherwise be entitled to residence under EU law is prevented from being able to do so by a domestic provision relating to the lawfulness of entry.

Question (iii): family life

[17]Before dealing with this question I would observe that it is very doubtful whether it was appropriate for the Article 8 issues raised by the appellant to have been resolved at this stage when there had been no removal decision. If and when a removal decision is made the appellant will be able to appeal against that decision and as part of that appeal he will be able to include Article 8 grounds in his appeal. It will of course be for the Secretary of State to decide whether to deport the appellant as a person who has committed criminal offences or whether he should be removed under the Immigration Rules. It will be for the Tribunal at the stage of any appeal against such a decision to weigh the relevant factors as they exist at that time. It seems to me therefore that it was at best premature for the Tribunal to be asked to consider the Article 8 issue in this appeal. However, as I have indicated, it was the appellant who asked the Immigration Judge to consider the Article 8 issue and the appellant can hardly complain now that that is what the Immigration Judge proceeded to do.[18]I turn therefore to the question of family life. The Immigration Judge correctly directed herself that she had to consider whether the evidence had established that something more existed than normal emotional ties between adult members of a family. At the time of the application for a residence permit, the appellant was just over 21. By the time of the redetermination hearing on 24 April 2009, he was well over 22 years old. He was a healthy young adult male. The Immigration Judge said that there was no evidence of dependency. He had not lived consistently with his mother and stepfather over the previous four years. He had lived in rented accommodation for three months. His mother had paid the rent. He had also lived with his aunt for a month. He had also of course been in prison. The Immigration Judge referred to the effect of the appellant's criminal record, saying this in paragraph 19 of the determination:
"[…] There is no evidence of dependency before me. On the contrary the facts disclose that the appellant has had a complete disregard for any parental guidance since he first began committing crimes at the tender age of 15 when his first offences were drugs related. His offending progressed to pubic disorder offences, theft and kindred offences and culminated with a conviction for false imprisonment and assault occasioning actual bodily harm on 9th May 2008 when the appellant was 20 [when he was sentenced to 18 months’ imprisonment]. This offending pattern does not disclose of an individual dependent and reliant upon his parents but a young man who had a callous disregard for … the effect of his conduct on his immediate family and the bad example he was setting to his half sibling. The appellant is of an age where he would be expected to leave home and form his own independent household and the evidence before me is that the appellant has already lived away from his family. 20. I find the appellant is in the process of becoming independent with a view to establishing his own family unit in due course. He has through his own conduct and recent release from prison left himself in a position where he has no option but to live at home at the present time. […]"
[19]Although these conclusions were criticised in the grounds of appeal and it was submitted that there was no basis for the Immigration Judge's conclusion that the appellant was in the process of becoming independent, it seems to me that these were matters of judgment for the Immigration Judge. They were pre-emininently for her to decide having heard the evidence, and there is no possible basis on which it could be said that her conclusion that there was no interference with family life could be said to be erroneous in law.

Question (iv): private life

[20]It was submitted on behalf of the appellant by Ms Nnamani that the Immigration Judge had placed disproportionate weight on the appellant's past involvement in what were said in her skeleton argument to be mostly non-violent criminal offences, and that the Immigration Judge had failed to have regard to the fact that some of those offences were spent and most of them were non-violent and had been committed whilst the appellant was a juvenile. Moreover, it was submitted that the Secretary of State had not refused a residence permit on the basis of the appellant's criminal offending. The European Court of Human Rights decision in Mazlov v Austria [2008] 1638/03 ECHR 546 was relied on before us as it was relied upon before the Immigration Judge.[21]As Ms Anderson pointed out in her skeleton argument on behalf of the respondent, it is not really surprising that the Immigration Judge had regard to the appellant's criminal convictions because it was being submitted on behalf of the appellant that the Secretary of State's decision to refuse him a residence permit was tantamount to a removal decision and in the submissions being made on his behalf reliance was being placed on the Mazlov decision which was of course a decision in a deportation case. In my judgment the appellant was trying to have his cake and eat it. He was arguing that the Secretary of State's decision, which was not a deportation decision, should be treated as though it was a deportation decision for the purposes of assessing the degree of interference with his private life under Article 8 whilst at the same time seeking to avoid consideration of those public interest factors such as his criminal record which would have been relevant on any appeal against such a decision.[22]In any event this criticism of the Immigration Judge is in my view misplaced because she did not consider whether the appellant's criminal record meant that it was or was not in the public interest to remove him from the United Kingdom. Rather she considered what the appellant's criminal record said about the extent of his family and private life and the degree to which that family or private life would be interfered with. Thus when the Immigration Judge weighed the factors for and against the Article 8 claim, she included in the balance in the appellant's favour that his juvenile criminal record should be discounted following Mazlov (see paragraph 40(i)).

(k) )

[23]In the context of this appeal and in the light of the submissions that were being advanced on behalf of the parties before the Immigration Judge, that was a perfectly proper approach. It follows that the appeal on this ground is in effect a perversity challenge, and the submission that undue reliance was being placed by the Immigration Judge on the appellant's convictions amounts to no more than a submission that the Immigration Judge gave that factor too much weight. It is well established that a submission that too much or too little weight has been given to a particular factor does not raise an arguable point of law. There is no suggestion, apart from the submission that the Immigration Judge gave undue weight to the appellant's criminal record, that she failed to take into account any other relevant factor or that she took into account any irrelevant factor. In these circumstances it seems to me there is no proper basis on which this perversity challenge to the Immigration Judge's conclusions can succeed.[24]For these reasons I for my part would dismiss this appeal.[25]I agree.[26]I also agree.

Order

Appeal dismissed

Cited in 5 later judgments