RL (New Zealand) v SSHD [2015] EWCA Civ 1583

Case No C5/2014/2998[2015] EWCA Civ 1583
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday, 25 November 2015
Before
LORD JUSTICE VOS
Between
RL (NEW ZEALAND)AppellantSSHDRespondent
(DAR Transcript ofWordWave International Limited Trading as DTI Global8th Floor, 165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Mr Christopher Jacobs (instructed by JCWI) appeared for Appellant. for The Respondent did not appear and was not represented.
Judgment

Introduction

[1]This is a renewed oral application for permission to bring a second appeal from the Upper Tribunal Immigration and Asylum Chamber (Upper Tribunal Judge Pitt) promulgated on 18 July 2014. The Upper Tribunal dismissed the appellant’s appeal from the decision of the First Tier Tribunal promulgated on 8 April 2014 (Upper Tribunal Judge Morris) which had itself dismissed the appellant’s appeal from the Secretary of State’s decision dated 7 August 2013 refusing to grant the appellant a residence card in the United Kingdom.[2]The brief factual background is as follows. The appellant is the civil partner of one Jason David Dela Cruz, a national of the Philippines. Mr Dela Cruz has held a UK residence card since 20 July 2010 as the family member of his stepfather, Mr Martin Healy, who is an Irish citizen and therefore a citizen of the European Union, married to Mr Dela Cruz’s mother.[3]The appellant moved into Mr Healy’s home on 20 October 2012 and entered into a civil partnership with Mr Dela Cruz on 9 March 2013. The appellant is now 32 years old.[4]The appellant should only be allowed permission to appeal to the Court of Appeal to bring a second appeal in this case if he can show that his case raises an important point of principle or practice or that there is some other compelling reason why the appeal should be heard. The grounds of appeal claim that the appeal raises an issue of public importance in relation to the rights in EU law of spouses or partners of family members of EEA (“European Economic Area nationals”) under Regulation 7 of the Immigration (European Economic Area) Regulations 2006 and under Article 8 of the European Convention on Human Rights.[5]Briggs LJ looked at the matter on paper and refused permission to appeal on 22 December 2014 on the grounds that the appeal had no real prospect of success; that the “family member of a family member” argument was not supported either by a reading of Regulation 7 or of Article 2 of the Citizens’ Directive. The argument that Mr Dela Cruz was exercising Treaty rights was manifestly wrong and the Article 8 analysis of the Upper Tribunal Judge had been sympathetic, legally correct and beyond challenge.

The relevant legislation

[6]I can deal briefly with the relevant legislation because Mr Christopher Jacobs, counsel for the appellant before me, accepts that his client does not actually fall within the strict wording of either Article 2 of the Citizens’ Directive or Regulation 7.1 of the 2006 Regulations. Article 2 of the Citizens’ Directive defines a family member as:
“(a) the spouse; (b) the partner with whom the Union citizen has contracted a registered partnership… or; (c) the direct descendants who are under the age of 21 or are dependents and those of the spouse or partner as defined in (b)…” (b) the partner with whom the Union citizen has contracted a registered partnership… or; (c) the direct descendants who are under the age of 21 or are dependents and those of the spouse or partner as defined in (b)…”
[7]Regulation 7.1 of the 2006 Regulations tracks the provisions of Article 2 by providing that the following persons shall be treated as the family members of another person:
“(a) his spouse or his civil partner; (b) direct descendants of his/his spouse or his civil partner who are – (i) under 21; or (ii) dependents of his/his spouse or his civil partner; (c) … (d) a person who is to be treated as the family member of that other person under paragraph 3…” (i) under 21; or (ii) dependents of his/his spouse or his civil partner; (d) a person who is to be treated as the family member of that other person under paragraph 3…”
[8]I set out Regulation 7.3 for the sake of completeness. It provides that:
“… a person who is an extended family member and has been issued with an EEA… residence card shall be treated as the family member of the relevant EEA national [whilst he holds it].”

The FTT decision

[9]The FTTJ decided first that the appellant did not fall with any definition of a family member in Regulation 7 because Mr Dela Cruz is not an EEA national. Secondly, she decided that the appellant could not satisfy the definition of “extended family member” under Regulation 8 because he was never a member of Mr Healy’s household, nor was he dependent on Mr Healy in the country from which he came to the UK. The second approach which relies upon the provisions of Regulation 8 of the 2006 Regulations is no longer pursued before me and I do not think it was pursued before the Upper Tribunal either.

The Upper Tribunal’s decision

[10]The key passages in the Upper Tribunal’s decision are in paragraphs 6 to 8 and in the determination under Article 8. Paragraphs 6 to 8 read as follows:
“6. On the face of it, neither Article 2 nor Regulation 7 affords the appellant the right to a residence card. That is because his relationship is that of a civil partner with Mr Dela Cruz who is a family member of an EEA national but not himself an EEA national exercising Treaty rights. Only a direct descendant of Mr Dela Cruz, as opposed to a partner, comes within the provisions of the Directive and the EEA Regulations. 7. As I understood it, at the heart of the appellant’s case is the proposition that the failure of the Directive and EEA Regulations to provide for the lawful residence of the civil partner of a dependent of an EEA national is inconsistent with Article 8 of the ECHR. I could not see how that could be so. Article 8 is a qualified right. It does not provide for any form of relationship to be afforded lawful residence as of right, not even parent and minor child. It cannot be an automatic breach of Article 8 that EEA legislation does not provide for the lawful residence of a civil partner of a dependent of an EEA national. I could not see where the claimed inconsistency with Article 8 of the ECHR arose, therefore. 8. The arguments for the appellant also touched on the issue of whether the respondent’s decision impinged on the EEA rights exercised by Mr Dela Cruz and his step-father Mr Healy. Again, it was not clear to me from the evidence why that would be so. The EEA rights engaged in this appeal are those of free movement under the Citizen’s Directive and Mr Healy does not assert that he will be forced to leave the UK because the appellant does not have a residence card and this may lead to his step-son and the appellant leaving the UK.”
[11]The other parts of the Upper Tribunal’s decision that are questioned are, as I say, relating to the proportionality exercise under Article 8. The particular passage which Mr Jacobs complains about is in paragraph 14 where the Upper Tribunal

Judge said:

“When the inability to meet the Immigration Rules is taken as a starting point in the proportionality assessment and the requirement for exceptional or compelling circumstances applied the Article 8 claim here simply cannot succeed.”
[12]The Upper Tribunal Judge in undertaking the Article 8 analysis decided on the basis of the Razgar tests that it was proportional to refuse lawful residence to the appellant and in effect to expect him and his civil partner to leave the UK to make their home in New Zealand.

The Grounds of Appeal

[13]The grounds of appeal may be summarised as follows. I think it would be fair to say, and I do not suppose that Mr Jacobs would much criticise this approach, that they have shifted somewhat and different emphasis has been placed before me than was placed before the Upper Tribunal Judge and, therefore, the formal grounds may have to be considered in the light of those shifts:(1) It is said that the Upper Tribunal Judge ought to have found that the appellant was a family member of Mr Dela Cruz because Mr Dela Cruz is exercising Treaty rights as Mr Healy’s dependent and has his own residence card.(2) It is said that the Upper Tribunal Judge ought to have held that any other construction of Regulation 7 breached Citizens’ Directive 2004/38/EC because paragraph 5 of Preamble 5 says that “the rights of all Union citizens to move and reside freely within the territory of Member States should… be also granted to their family members” and the appellant was a family member of Mr Healy who would be affected, so it is said, by the Secretary of State’s decision as his stepson will have to leave the UK if the application is not successful.(3) It is said that the right of Mr Healy to live with his family members and the family members of his family members is contained in the Directive and is directly enforceable in the UK, even if not properly transposed in the Regulations.(4) It is said that the Upper Tribunal Judge was wrong to reject the argument that Regulation 7 should be construed consistently with Article 8 so as to allow the appellant to remain as the civil partner of the dependent of Mr Healy or as the civil partner of a person with a residence card in the UK otherwise Mr Dela Cruz will be disadvantaged as compared to UK citizens and Mr Healy will be disadvantaged as compared to UK citizens, which is a violation of if not the Directive the Treaty on the Functioning of the European Union.(5) It is said that the Upper Tribunal Judge ought to have allowed the appellant’s Article 8 claim primarily on the ground, although I think this is new to the grounds of appeal, that the proportionality exercise demanded attention to be paid to the fact that Mr Healy’s Treaty rights would be affected by requiring the appellant to leave the UK and that there was nothing that this appellant could do to reapply or to return to the United Kingdom because of the circumstances of his particular case.

Discussion

[14]Issue (1): ought the Upper Tribunal Judge to have found that the appellant was a family member of Mr Dela Cruz within Regulation 7 because Mr Dela Cruz is exercising Treaty rights as Mr Healy’s dependent and has his own residence card? In my judgment this ground of appeal has no substance to it. As I understand it this ground of appeal argues that because Regulation 7 provides that direct descendants of the EEA national shall be regarded as family members, it is inappropriate to exclude from family membership the spouses of the lineal descendants of the EEA national. It is said that if Mr Dela Cruz was a woman and had a child that child would be a family member and in those circumstances it would be obviously unjust to exclude the spouse of the woman from being regarded as family member of the EEA national.[15]The argument is undoubtedly interesting but it flies, as Mr Jacobs admits, directly in the face of the terms of the Regulation. To obtain any traction therefore it requires Regulation 7 to be construed as being compliant with the spirit of the Directive rather than the terms of the Directive when, in my judgment, the Directive makes it perfectly clear that it is open to the national legislature to decide on the definition of family members provided they follow Article 2. Article 2 is directly followed, as I have said, in Regulation 7. In reality, therefore, this argument is not the argument upon which Mr Jacobs places most reliance. That is the argument to which I shall come; that the provisions of the Regulation are in opposition to the provisions of Article 8, which is the point that the Upper Tribunal paid very little attention to but is one that is, at least as it seems to me, is intelligible.[16]Issue 2: ought the Upper Tribunal Judge to have held that any other construction of Regulation 7 breached the Citizens’ Directive because the appellant was a family member of Mr Healy who would be affected by the Secretary of State’s decision as his stepson if he had to leave the United Kingdom? It is true that the Citizen’s Directive says that the rights of all Union citizens should be respected to move and reside freely within the territory of Member States and that such rights should also be granted to their family members, but as I have already indicated the question is who, for these purposes, to be regarded as their family members. It seems to me that the question of who is a family member cannot be extended at the whim of an appellant simply because it would be desirable for other adult family members to remain in certain cultural situations with what one might perhaps latterly have called the paterfamilias in an extended family situation and respect has to be paid to the Regulation itself and its terms, tracking as it does Article 2 of the Directive and it seems to me that it is simply not arguable that there has been a failure to construe the Regulation properly by the Upper Tribunal.[17]Issue 3: was Mr Healy’s right to live with his family members and the family members of his family members directly enforceable in the UK, even if not properly transposed into the Regulations? This is very much the same point and is dealt with already by the points that I have made.[18]It seems to me that everything depends on the fourth issue as I have described it, which is the question of whether or not Regulation 7 must be construed consistently with Article 8 so as to allow the appellant to remain as the civil partner of the defendant of Mr Healy or as the civil partner of a person with a residence card. The answer to this issue is not quite as easy as the previous ones because one can clearly see that Mr Healy’s Article 8 rights, and indeed the thrust of the Directive to allow EEA citizens to live in other Member States with members of their family, is theoretically infringed by the requirement for a spouse of a stepchild to leave. In my judgment, however, Article 8 is not, as I think the Upper Tribunal Judge said, an absolute right and the Regulations and the Directive have to be construed according to their terms. However satisfactory it would be to say that the family member of a family member is covered the Regulations do not say so, as Mr Jacobs accepts.[19]It seems to me that it is simply on the present legislation not arguable that even construing the Regulations consistently with the Directive could get him home and in those circumstances it seems to me that whilst one might say that this raises a point of public importance and principle, it is a point of public importance or principle which has no real prospect of success much as Briggs LJ says, in which case there is no point in granting permission to appeal to argue a point that is bound to fail.[20]I come finally then to the fifth issue, which is the question of whether the Upper Tribunal Judge ought to have allowed the appellant’s Article 8 claim. As I have indicated, what is said is that the Upper Tribunal Judge simply failed to take into account the two most important factors which were that Mr Healy’s own Treaty rights were affected by the requirement for the appellant to leave the UK with his stepson and that there was in this situation nothing that the appellant could do to come back, but it seems to me that the balancing exercise undertaken by the Upper Tribunal Judge was not vitiated by those factors. She took into account the fact that the evidence of all the family members was that they would find it distressing if the appellant had to leave and if Mr Dela Cruz went with the appellant; that is effectively taking into account the fact that Mr Healy’s Treaty rights were being affected by the proportionality exercise that was being undertaken.[21]Moreover, whilst she did not mention the appellant’s position as a New Zealander being unable to apply in any other way to come back to the UK, that is something that applies to all people in his situation making appeals to this court at this stage and I am absolutely sure that the balance which she exercised had that well in mind. Moreover, I do not think that the balancing exercise under Article 8 raises any point of public importance or raises a compelling reason why there should be an appeal.

Disposal

[22]For the reasons I have given I shall not grant permission to the appellant to appeal. I should not leave the case without saying that of course one has some sympathy for the appellant’s position, but I do not think that it is seriously arguable that the Regulations were intended to give a large number of remote adult relatives permission to stay in the United Kingdom on the back of the EEA status of one person. The Regulations simply do not say that and the fact that the intent is to allow family members to follow EEA nationals does not necessarily mean that every adult family member not mentioned in the Regulations can be covered. They are simply not covered and in those circumstances I do not think that any amount of construction of the Regulations in accordance with European Union law will change that position. I have had regard to the cases that Mr Jacobs has cited which are not directly on point as he freely acknowledges, but they do not change my mind.[23]In those circumstances I shall dismiss this application.

Order

Application refused