Sannie & Anor v Secretary of State for the Home Department [2013] EWCA Civ 1638

[2013] EWCA Civ 1638Case No C5/2013/0932
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
DEPUTY UPPER TRIBUNAL JUDGE MONSON
Venue Royal Courts of JusticeDate Wednesday, 30 October 2013
Strand
London WC2A 2LL
B e f o r e:
THE LORD CHANCELLOR
LADY JUSTICE HALLETT
LADY JUSTICE SHARP
Between
MR ISSAKA SANNIEAppellantMISS BALKISU HUSSEINAppellantv
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr Paul Dipré (instructed by Calices Solicitors) appeared for AppellantsMiss Samantha Broadfoot (instructed by Treasury Solicitors) appeared for Respondent
J U D G M E N T

LADY JUSTICE HALLETT:

The

[1]appellants, Issaka Sannie and Balkisu Hussein, are husband and wife and nationals of Ghana. They married in 2010. Neither appellant has a freestanding claim in their own right to reside in the United Kingdom. The second appellant's claim to reside here depends upon that of her husband and both their claims in turn depend upon their sponsor Mr Awudu Sannie, the first appellant’s brother. Mr Awudu Sannie has obtained Dutch nationality. If exercising EU treaty rights in the United Kingdom, he is a qualifying EU national for present purposes.[2]The first appellant arrived in the United Kingdom as a student in 2002. He applied for a residence card as a member of his brother's extended family. It is common ground that an extended family member can only qualify for a residence card if they meet certain criteria under the Immigration (European Economic Area) Regulations 2006. Those criteria are designed to establish a relevant connection with the family member prior to arrival in the United Kingdom and within the United Kingdom, based on dependency and membership of a household.[3]On 10 November 2009 the first appellant was issued with a residence card in error as an extended family member under Regulation 17(4) of the 2000 Regulations. The decision-maker wrongly failed to consider the prior dependency and membership of household criteria. There was, it should be emphasised, no suggestion of fraud or deception by the first appellant.[4]Meanwhile, the second appellant arrived in the United Kingdom in May 2008. She remained here as a student under Tier 4 provisions. Shortly before the expiry of her leave to remain she applied for a residence card as the spouse of a family member of an European Economic Area citizen, namely, as Mr Awudu Sannie's sister-in-law. This triggered a re-examination of the first appellant's claim.[5]On 23 March 2012 the second appellant was issued with a notice of immigration decision informing her that the Secretary of State refused to issue her with a residence card as the extended family member of an EEA national. The first appellant was notified of an immigration decision to revoke his residence card under Regulation 20(2) of the Regulations.[6]The accompanying Reasons for Refusal Letter, also dated 23 March 2012, addressed to both of them, stated that neither qualified as extended family members because neither of them met the prior member of a household or prior dependency criteria. In addition it was not accepted that Mr Awudu Sannie, as the EEA national, was able to support himself and the members of his household on his income.[7]The appellants appealed. The matter came before the First-tier Tribunal and the appellants and Mr Awudu Sannie all gave evidence. The judge concluded that no one had given credible or reliable evidence and had failed to demonstrate that the appellants were either dependent upon their sponsor or members of his household as claimed. He also rejected comprehensively their Article 8 claim.[8]The appellants were initially refused permission to appeal on the basis that the judge had given full and fair consideration to all their claims and, in the event, it appeared now to be conceded that the first appellant could not succeed under the EEA Regulations.[9]In a renewed application to the Upper Tribunal the grounds of appeal were recast. The appellant was forced to concede that he could not now challenge the findings of the First-tier Tribunal judge that he did not meet the statutory criteria and, therefore, did not qualify as an extended family member. Similarly, the second appellant had to accept that her claim must also fail. The new ground of appeal was that the Secretary of State had unlawfully revoked the first appellant's residence card before its expiry date. It was argued that there was no basis for revisiting the issue of the residence card and there was no power to revoke on the grounds of administrative error.[10]Permission to appeal to the Upper Tribunal was granted to argue whether the Secretary of State had lawfully revoked the card and whether the Secretary of State had acted in accordance with the regulations in refusing the second appellant a residence card.[11]The Secretary of State's case was and remains that she had the power and, indeed, the responsibility to revoke the residence card because the first appellant did not and does not meet the statutory criteria. If so she had no power to grant the second appellant a residence card.[12]Deputy Upper Tribunal Judge Monson heard the appeals and dismissed them. He focused on the way in which the case had been run before the First-tier Tribunal to decide whether or not there had been a material error of law. He reminded himself that in reality neither party had suggested there had been such an error. What had happened was that the argument had changed from whether or not the appellants met the criteria to whether the Secretary of State exceeded her power.[13]He found that there had been an error of law in that the First-tier Tribunal judge had not appreciated that the onus on establishing the lawfulness of the revocation of the card was on the Secretary of State but he concluded that this error of law was not material.[14]Mr Dipré, representing the appellants, sought permission of the Court of Appeal to appeal in a second appeal. He was given permission by Sir Richard Buxton to argue the extent of the Secretary of State’s powers point, but not to re-open the findings of credibility on dependency and membership of household.[15]As I have already indicated, the regulatory framework is contained within the 2006 Regulations. They implement Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the member state. The Directive and the Regulations distinguish between direct family members and extended family members of an EU national.[16]An extended family member is defined in regulation 8(1) as a person who is not a family member and who satisfies the conditions in paragraphs 2, 3, 4 or 5. These can be summarised as involving their establishing:(1) Prior dependency and present dependency on an EU family member;(2) Prior membership of a household and present membership of a household;(3) Prior dependency and present membership of a household or.(4) Prior membership of a household and present dependency.[17]Whereas family members of qualifying EU nationals have automatic rights of residence and entry into the territories of member states and member states are obliged to issue a residence card to them, extended family members must have their entry and residence “facilitated in accordance with national legislation".[18]Regulation 17(4) provides that:
"The Secretary of State may issue a residence card to an extended family member not falling within regulation 7(3) who is not an EEA national on application if - (a) the relevant EEA national in relation to the extended family member is a qualified person or an EEA national with a permanent right of residence under regulation 15; and (b) in all the circumstances it appears to the Secretary of State appropriate to issue the residence card."
[19]Regulation 18 deals with the issue of a document certifying permanent residence and a permanent residence card. Regulation 18A provides for the issue of a derivative residence card. Regulation 19 provides for exclusion and removal from the United Kingdom.[20]Regulation 19(3), Miss Broadfoot, for the Secretary of State, suggests is illuminating. It provides that a person who is the family member of an EEA national who has entered the United Kingdom may be removed if:
"that person does not have or ceases to have a right to reside under these Regulations; or "the Secretary of State has decided that the person's removal is justified on grounds of public policy, public security or public health in accordance with regulation 21."
A decision to remove a person under this regulation carries with it a right of appeal.[21]Regulation 20(1) provides for the refusal to issue or renew and revocation of residence documentation:
"The Secretary of State may refuse to issue, revoke or refuse to renew ... a residence card ... if the refusal or revocation is justified on the grounds of public policy, public security or public health."
Regulation 20(1A) provides:
"A decision under regulation 19(3) to remove a person from the United Kingdom will [save in circumstances which do not apply here] invalidate... a residence card ... held by that person ..."
Regulation 20(2)provides : “The Secretary of State may revoke ... a residence card or refuse to renew a residence card if the holder of the certificate or card has ceased to have a right to reside under these Regulations."[22]It was regulation 20(1) which troubled Sir Richard Buxton when granting permission to appeal. It is at the heart of this appeal.[23]Mr Dipré, for the appellants, wishes to put a very narrow and what he described as “indulgent construction” on the Regulation so that absent considerations of public policy, public security or public health, which are not present here, the Secretary of State has no power to revoke.[24]Mr Dipré frankly admitted that, to a large extent, his argument was based on one line of a judgment of the Upper Tribunal in the decision of Hussam Samsam [2011] UKUT 00165 (IAC. It is a decision of The President, Mr Justice Blake and Senior Immigration Judge McGeachy.[25]In Samsam the Secretary of State had decided to revoke a residence card of an EEA's spouse on the grounds that did not qualify at the time it was issued because he was by then divorced from the EEA national. The two issues before the Upper Tribunal were whether the First-tier Tribunal had erred in law in placing the burden of proof on the appellant in a revocation case, which it was conceded they had, and whether the appellant, in fact, qualified for permanent residence. The Upper Tribunal's conclusions on these issues plainly form the ratio of their decision, however, at paragraph 25 of the determination regarding the circumstances in which a residence card could be revoked the Tribunal added this:
" . . . a residence card can clearly be revoked on broader grounds than conduct, making cancellation of the card and removal from the United Kingdom appropriate. If a card is obtained by fraud or misrepresentation then it would be open to the issuing authority to cancel it but, again, the onus would be on the Secretary of State. But if it could be shown that a card was issued in error by administrative mistake, we see no reason why it should be revoked even if the holder has no right of residence."
[26]It is that final sentence and a strict statutory construction which underpin Mr Dipré's argument. If the card could not be revoked where there had been an administrative error, as Mr Dipré suggests happened here, then (whatever the positions adopted by the parties before the First-tier Tribunal), both the First-tier Tribunal and the Upper Tribunal were bound to analyse the circumstances in which the first appellant obtained the residence card. Had they analysed the issue correctly, they would have appreciated the residence card in this case was not obtained by fraud or misrepresentation, there had been no change of circumstance, and, therefore, the only explanation was one of administrative error. They were then bound to apply paragraph 25 of the Samsam determination and find in the appellants’ favour.[27]The Secretary of State would be precluded from revoking a residence card even where the first appellant has no claim of residence and never has had. The Secretary of State is, Mr Dipré submitted, powerless to act until the residence card expires in 2014.[28]The Secretary of State submits that where she has made a mistake or an official has made a mistake on her behalf as to whether a person fulfils the qualifying criteria and issues a residence document, the Regulations are sufficiently broad to enable her to correct that position. She may revoke a document issued in administrative error, subject only to questions of legitimate expectation and the normal public law constraints on the exercise of a discretionary power namely not for an improper purpose or in an arbitrary fashion.[29]Miss Broadfoot provided three glaring examples of what might happen on the narrow and literal reading of the powers advanced by the appellants. She submitted they would be absurd and contrary to the public interest and cannot have been the intention of the draftsman:(1) The Secretary of State could not refuse to issue a document on the grounds that a person does not qualify because there is no express provision to that effect.(2) The Secretary of State could not refuse to renew a residence document in circumstances where there had been no change in circumstances but the claimant had never met the criteria.(3) The person who had never met the qualifying conditions but had wrongly been issued with a residence permit would be in a better position than the person who had once met them but subsequently ceased to do. This is because, on the appellant's construction, the latter could have his residence document revoked whereas the former could not.[30]Miss Broadfoot also pointed to the provisions of regulation 19(3) to highlight the absurdity of the argument. A person who does not have or ceases to have a right to reside may be made subject to a removal decision which invalidates any existing residence documentation. Thus, this appellant, who does not have a right to reside under the regulations and does not fulfil the qualifying conditions, could be made subject to a removal decision. It would be an odd result if the Secretary of State could invalidate his residence card by taking the more Draconian step but cannot simply revoke it.[31]She insisted the remark in Samsam was plainly obiter and does not sit happily with the rest of the determination. Further it is inconsistent with another determination of the same constitution of the Upper Tribunal in relation to a very similar appeal heard on the same day, 25 February 2011, namely the decision in Nkrumah [2011] UKUT 00163 (IAC).[32]In Nkrumah the court considered the case of an extended family member who had a residence permit stamped in his passport which was then sent to the appellant some two months later with a letter stating that the application had been refused. The Secretary of State's case was that the permit had wrongly been stamped in the passport. The FTT concluded that the appellant was not qualified under the Regulations and the issue was whether the residence card remained valid unless or until revoked. The Tribunal concluded that once issued a residence card retained its validity as authority to remain unless or until it expired or was revoked under regulation 20. However, at paragraph 12 the Tribunal stated this:
"It is still open to the Secretary of State to cancel Mr Nkrumah's residence card if minded to do so. The previous grant of the residence card does not prevent revocation on the basis of a demonstrated lack of entitlement. Although the case law on other family members has given rise to some difficulty ... the jurisprudence of this Tribunal establishes that pre-entry dependency is necessary before a person can qualify for the favourable exercise of discretion under regulation 8 ..."
[33]Miss Broadfoot argues that this seems to point in entirely the opposite direction from the final sentence of paragraph 25 of Samsam.[34]To my mind, there is considerable force in Miss Boradfoot’s assertion that there is either a transcription error or a clear conflict between the two passages. In any event, the remark in Samsam was obiter. It is in no way binding on this court.[35]I find the answer to the question posed on this appeal straight forward. The right to reside and the issue of a residence card are plainly different things, the latter is simply proof of the former. A member of the extended family of an EEA citizen exercising treaty rights has no unqualified right to either. To establish and obtain proof of a right to reside they must first meet the specific criteria laid down in the Regulations. If they do not do so the Secretary of State has no power to issue a residence card. She cannot issue cards to anyone who applies on a whim. It is implicit in the Regulations, therefore, that if an official makes a mistake and a card is issued on a false basis, in principle, she has the power to revoke the card. The power to revoke is concomitant upon the power to issue.[36]To find otherwise would lead to an absurd result. It cannot have been the draftsman’s intention, for example, to provide that a card could not be refused or renewed on the grounds that someone did not qualify or that a card issued to the wrong person entirely could not be revoked. If residence cards may be revoked or renewals refused on a change of circumstances, it must follow that the Secretary of State is entitled to refuse to renew or to revoke a card where the applicant never, in fact, met the criteria. It is implicit in the statutory regime.[37]To the extent that the determination in Samsam purports to say otherwise, I would respectively disagree. I prefer the reasoning in paragraph 12 of Nkrumah.[38]There may be many public law and possibly European law principles that are then in play which prevent the Secretary of State acting in an arbitrary fashion, contrary to the purpose of the Directive or in breach of Article 8, but that does not mean the power to revoke does not exist in the case of administrative error. To my mind it does and for those reasons I would dismiss this appeal.

LADY JUSTICE SHARP: I agree.

THE LORD CHANCELLOR: I also agree.

Cited in 1 later judgment