Kungwengwe v Secretary of State for the Home Department [2005] EWHC 1427 (Admin)

Case No CO/4944/2005[2005] EWHC 1427 (Admin)IN THE HIGH COURT OF JUSTICEAMINISTRATIVE COURTVenue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday, 13 July 2005
Before
MR JUSTICE WILKIE
Between
TARISAI GLADYS KUNGWENGWEClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Irena Sabic (instructed by Thomas Andrew & Daodu) for ClaimantCaroline Neenan (instructed by the Treasury Solicitor) for Defendant
Judgment
[1]The Claimant Tarisai Gladys Kungwengwe seeks a judicial review, with the permission of the court granted after an oral hearing on 17 January 2005, of the decision of the Secretary of State for the Home Department dated 14 July 2004 refusing her application for indefinite leave to remain on the basis of long residency pursuant to paragraph 276C of the Immigration Rules contained in HC 395.[2]The underlying facts of the matter are as follows. The claimant was born on 24 April 1967 in Zimbabwe. She arrived in the United Kingdom on 18 December 1992 having been granted a 6 month visiting visa. She then obtained a 2 year working holiday visa. In 1995 she was granted a student visa which was renewed for a period of 4 years. On 20 April 1999 she married a Mr Barroso a Portugese national. On 7 October 1999 she was granted a 5 years residence document as a family member of Mr Barroso, he being a qualified person as defined by the Immigration (European Economic Area) Regulations 2000. That residence document, subject to certain rights in the Secretary of State referred to below, was due to run for 5 years and expired on 7 October 2004. On 18 February 2004 the claimant’s solicitors wrote to the Secretary of State, through his appropriate unit, applying on her behalf for indefinite leave to remain in the United Kingdom on the basis of long residency. They put her claim on the following basis:
“Our client first arrived in the United Kingdom on 18 December 1992. She currently has leave to remain in the United Kingdom until 7 October 2004, as she has been in the United Kingdom lawfully for a continuous period of 10 years she wishes to apply for indefinite leave to remain.”
They then set out in full paragraphs 276A to C of HC 395 and conclude as follows:
“On reviewing the above mentioned provisions we believe that our client meets all the requirements to be allowed to remain here indefinitely as she has had 10 years continuous lawful residence in the United Kingdom within the meaning of paragraph 276A HC 395….”
[3]On 16 March 2004 the Home Office wrote requesting certain documentation including, documentary evidence of ownership of the marital home or a rent book, and documentary evidence to show that the claimant and her husband have been residing together since the marriage.[4]Unhappily, by this stage, and indeed from some date in the year 2000, the claimant and Mr Barroso had separated though they remained and remain married. On 22 April 2004 the claimant’s solicitors wrote to the Home Office confirming this fact but pointing out that her application was based on the 10 years rule as opposed to marriage to an EEA national. They refer again to paragraph 276A and conclude:
“You will no doubt agree that our client has been in the United Kingdom lawfully for a period in excess of 10 years. She is entitled to be granted indefinite leave under paragraph 276A…”
[5]The decision to refuse her application was dated 14 July 2004. The notice of decision states, amongst other things, as follows:
“On 16 March 2004 you representative was requested to provide evidence that your spouse was present in the United Kingdom and exercising treaty rights as an EEA national but this evidence has not been provided. Therefore the Secretary of State is not satisfied that you have at least 10 years continuous lawful residence in the United Kingdom.”
The letter enclosing that notice elaborated on that decision and stated amongst other things as follows:
“Time spent in the United Kingdom holding a residence document is not leave to remain in the United Kingdom under the Immigration Rules. Time spent holding a residence document is only counted as lawful leave if it is spent as the spouse of an EEA national exercising Treaty rights in the United Kingdom. You have not provided evidence that your client’s spouse is in the United Kingdom and exercising Treaty rights and therefore your client’s application has been refused without right of appeal.”
[6]Although it is right to say that the requests for documentation made in the letter of 16March 2004 were not explicitly addressed to the issue of Mr Barroso’s continuing residence in the United Kingdom exercising Treaty rights, it is the case that the claimant is unable to say one way or the other whether Mr Barroso continues to reside in the United Kingdom and, if so, whether he is exercising his community rights as a worker to reside in the United Kingdom. In my judgment, therefore, nothing turns on this particular wrinkle in the correspondence.[7]Paragraph 276C of HC 395 provides as follows:
“Indefinite leave to remain on the ground of long residence in the United Kingdom may be granted provided that the Secretary of State is satisfied that each of the requirements of paragraph 276B is met.”
Paragraph 276D of the same document provides:
“Indefinite leave to remain on the ground of long residence in the United Kingdom is to be refused if the Secretary of State is not satisfied that each of the requirements of paragraph 276B is met”
Paragraph 276B of HC 395, insofar as is relevant, provides as follows:
“The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom are that: (i)(a) he has had at least 10 years continuous lawful residence in the United Kingdom;…”
Paragraph 276A of HC 395 provides, insofar as is relevant, as follows:
“For the purposes of paragraphs 276B to D:… (b) “lawful residence” means residence which is continuous residence pursuant to: (i) existing leave to enter or remain; or (iii) an exemption from immigration control…”
[8]It is common ground that the claimant had leave to enter or remain continuously from 18 December 1992 until 30 September 1999. It is common ground that thereafter, until 7 October 2004, she had the benefit of a residence document issued pursuant to the Immigration (EEA) Regulations 2000. The question which this claim raises is what is the effect of such a residence document for the purposes of an application for indefinite leave to remain under paragraph 276A to D of HC 395?[9]The provisions of domestic law which relate to the freedom of movement of workers within the EEA and the members of their family were, in the first instance, created by Article 17, 18(1) and 39 of the Treaty of Rome. That basic statement of principle is backed up in European legislation by regulation 1612/68 and Directive 68/360 together with Directive 90/365. I need not consider these sources of law further as it is common ground that the domestic legislation effectively gives effect to those rights created at Community level. The Immigration Act 1988 provides, so far as is relevant by section 7(1) as follows:
“A person shall not under the principal act require leave to enter or remain in the UK in any case in which he is entitled to do so by virtue of an enforceable community right or of any provision made under section 2(2) of the 1972 European Communities Act.”
The 2000 Regulations were made under section 2(2) of the 1972 Act. They provide, insofar as is relevant, as follows:
“5(1) In these regulations “qualified person” means a person who is an EEA national and in the United Kingdom as – (a) a worker. 6(1). In these regulations paragraphs (2) to (4) apply in order to determine the persons who are family members of another person. (4) In any other case, the persons are – (a) His spouse;… (8)(1) For the purposes of the 1971 Act and the British Nationality Act 1981 the following are to be regarded as persons who are in the United Kingdom without being subject under the Immigration laws to any restriction on the period for which they may remain -… (2) However, a qualified person or family member who is not mentioned in paragraph (1) is not, by virtue of his status as a qualified person or the family member of a qualified person, to be so regarded for those purposes. 14(1) A qualified person is entitled to reside in the United Kingdom, without the requirement for leave to remain under the 1971 Act, for as long as he remains a qualified person. (2) A family member of a qualified person is entitled to reside in the United Kingdom, without the requirement for such leave, for as long as he remains the family member of a qualified person…. 15. Issue of residence permits and residence documents. (2) Subject to regulation 22(1), the Secretary of State must issue a residence permit to a family member of a qualified person (or, where the family member is not an EEA national, a residence document) on application and production of – (a). a valid identity card issued by an EEA state or a valid passport; and (c) In the case of a person not falling within sub-paragraph (b) proof that he is a family member of a qualified person. 17. Form of residence permit and residence document. (2) A residence document issued to a family member who is not an EEA national may take the form of a stamp in that person’s passport. 18. Duration of residence permit. (1) Subject to the following paragraphs and to regulations 20 and 22(2), a residence permit must be valid for at least 5 years from the date of issue…. 19. Renewal of residence permit. (1) Subject to paragraphs (2) and (3) and to Regulations 20 and 22(2), a residence permit must be renewed on application. 20. Duration and renewal of residence permit or residence document granted to a family member (1) subject to paragraph (2), the family member of an EEA national is entitled to a … residence document of the same duration as the residence permit granted to the qualified person of whose family he is a member; and the family members…residence document to the same terms as to renewal…. 22. Refusal to issue or renew residence permit or residence document, and revocation of residence permit, residence document or EEA family permit. (2) The Secretary of State may revoke…a …residence document if – (b) The person to whom the ….residence document was issued – (ii) is not or has ceased to be the family member of a qualified person…”
Regulation 2 provides for interpretation of certain phrases within the regulations. In particular it provides as follows:
“ ‘residence document’ means a document issued to a person who is not an EEA national, in accordance with Regulation…15, as proof of the holders right of residence in the United Kingdom;…”
[10]Finally, in this context, the Immigration Rules contained in HC 395 contain a provision which is directly connected with the 2000 Regulations. Paragraph 255 provides as follows:
“Any person…who under, either the Immigration (European Economic Area) Order 1994, or the 2000 EEA Regulations has been issued with a residence permit or residence document valid for 5 years, and who has remained in the United Kingdom in accordance with the provisions of that Order or those Regulations (as the case may be) for 4 years and continues to do so may, on application, have his residence permit or residence document (as the case may be) endorsed to show permission to remain in the United Kingdom indefinitely.”
[11]The claimant concedes that, by the time she made her application under paragraph 276A to D, she had had the benefit of the residence document for in excess of 4 years. She also accepts that she could not have made a successful application to have that residence document endorsed to show permission to remain in the United Kingdom indefinitely because she was not then in a position to demonstrate that throughout the period and continuing she was the family member of a qualified person. That was because, although she remains a family member notwithstanding the fact that she and her husband have separated, she is unable to demonstrate that Mr Barroso is a qualifying person.[12]It was for this reason, the claimant frankly accepts, that she made her application under the long residence provision of paragraph 276A to D.[13]Applying the terms of that paragraph strictly the Secretary of State is bound to refuse indefinite leave to remain unless he is satisfied that each of the requirements of paragraph 276B is met. The crucial requirement of 276B is that the claimant has at least 10 years continuous lawful residence in the United Kingdom. Lawful residence is, however, specifically defined for the purposes of paragraph 276B as meaning residence which is continuous residence pursuant to (i) existing leave to enter or remain or (iii) an exemption from immigration control.[14]As to the former, whilst it is the case that from 1992 until 1999 she did have continuous residence pursuant to existing leave to enter or remain, from October 1999 her continuous residence was not pursuant to any existing leave to enter or remain but was by virtue of her having a residence document issued under the 2000 Regulations as proof of her right of residence in the United Kingdom. That residence document, once issued, was valid for at least 5 years unless revoked by the Secretary of State. It had not been revoked nor, in the current state of knowledge of the claimant and the Secretary of State, could it be revoked. The current whereabouts and status as a worker of Mr Barroso is unknown and therefore there is no basis for saying that he is not, or has ceased to be, a qualified person. In those circumstances the Secretary of State, rightly in my judgment, concedes that in common parlance the claimant was until 7 October 2004 a person who was “in lawful residence”. However, the way in which the claimant’s right of residence under the 2000 Regulations takes effect is that she does not require leave to enter or remain. (Section 7(1) of the Immigration Act 1988). Accordingly, her right of residence under the regulations does not fall within the definition of “lawful residence” provided by paragraph 276A(b)(1) as it is not pursuant to “existing leave to enter or remain”.[15]The second limb of the definition of “lawful residence” which might be thought to apply in this case is “continuous residence pursuant to (iii) an exemption from immigration control….” It is right to say that section 7(1) of the Immigration Act 1988 provides a limited form of exemption from immigration control in the sense that a person who is entitled to enter or remain in the UK by virtue of a provision of the 2000 Regulations does not require leave to do so. That exemption is, however, limited only and, in particular, Regulation 8 of the 2000 Regulations makes it clear that, save for certain categories of person of which the claimant does not form part, the rights given under the 2000 Regulations are limited in point of time. In fact once the initial 5 year period has expired then there has to be a renewal of an application. The only set of circumstances in which a right under the regulations may be transformed into indefinite leave to remain is pursuant to an application made under paragraph 255 of HC 395.[16]Further, it is clear that the concept of exemption from immigration controls is a term of art which has a specific statutory meaning. Section 8(2) of the Immigration Act 1972 empowers the secretary of state to exempt by order any person or class of persons from its provisions. He has done so by the Immigration( Exemption from Control ) Order 1972. Neither that order nor any other provision to which I have been referred purport to exempt persons in the position of the claimant pursuant to that power. Accordingly, in my judgment, the claimant does not fall within limb (iii) of the definition of “lawful residence” under paragraph 276A and so she did not have at least 10 years continuous lawful residence within the meaning of paragraph 276B.[17]The claimant says that such a construction effectively cuts across the rights of residence given under the 2000 Regulations. In my judgment that is not so. The Secretary of State accepts that, for all normal purposes, a residence document issued for a minimum of 5 years and unrevoked confers a full right of residence for the entirety of its duration. Where, however, a person wishes to apply for indefinite leave to remain under paragraph 276A to D she can only do so if he falls strictly within its terms. The Secretary of State accepts, however, that a person, such as the claimant, might have accumulated a substantial period of time, but less than 10 continuous years, as a person with leave to enter or remain, and a right of residence pursuant to a resident document issued under the 2000 Regulations, but for a period of less than four years. It would be unjust if such a person had, in these two ways, accumulated more than 10 years continuous lawful residence in the UK but was unable to obtain indefinite leave to remain merely because, for the last short period, their lawful residence was pursuant to a residence document whereas the bulk of their time residing in the UK had been pursuant to leave to enter or remain. The Secretary of State’s position, therefore, is that where such a person applies under paragraph 276A to D the Secretary of State will grant such application where the applicant can show that, for the period not covered by leave to remain but covered by the residence document, she satisfies, and continues to satisfy, the pre-conditions for the issuance of the residence document. In this way the Secretary of State, by borrowing concepts from paragraph 255, may do justice in a case where there is a total period of lawful residence of 10 years in the UK but where there is insufficient to satisfy the respective individual requirements of paragraph 276 or 255. The Secretary of State says that to require such a claimant to demonstrate the continuing existence of the conditions for the initial issuing of a residence document does not undercut the validity, for the time being and for other purposes, of that residence document. What it does is to combine elements of both paragraph 255 and 276A to D so as to do justice to a case where a person has accumulated 10 years lawful residence by way of a combination of circumstances which, respectively, go to satisfying 276A to D and 255.[18]In my judgment, the Secretary of State’s contention is correct. This claimant is unable to satisfy paragraph 276A to D for a continuous period of 10 years. At most she can satisfy it for a period of some 7 years. As to the remainder, she is unable to satisfy the requirements of paragraph 255. Had she been able to do so she would, on the facts of this case, not have required to make an application under paragraph 276A to D at all but would have been able to make an application under paragraph 255. In my judgment, provided the Secretary of State, in an appropriate case, applies a combination of paragraphs 255 and 276A to D there is no need, as the claimant argues, for paragraph 276A to D to be given any strained construction in order to do justice. Unfortunately for the claimant, however, she does not fall within 276A to D nor does she fall within paragraph 255 nor does she fall within these two paragraphs being applied cumulatively.[19]It therefore follows that the conclusion of the Secretary of State that he was not satisfied that the claimant had at least 10 years continuous lawful residence in the United Kingdom as defined by paragraph 276A and B was correct in law. That being so the Secretary of State was obliged, pursuant to paragraph 276D, to refuse the application. It therefore follows that this application for judicial review must be dismissed.[20]The claimant makes a parallel challenge to the decision in respect of her application for indefinite leave to remain on the grounds that it is in breach of her rights under Article 8 of the European Convention on Human Rights.[21]It is certainly true to say that the decision of 14 July 2004 made no reference to her rights under Article 8. On the other hand the structure of paragraph 276A to D appears to leave little or no room for consideration of Article 8 issues. That, perhaps, is not surprising as a decision to refuse indefinite leave to remain whilst the applicant has a right of residence is not one which immediately and directly affects her entitlement to remain in the United Kingdom. That position only crystallises once the existing right of residence pursuant to the residence document expired. In that connection the Secretary of State, by a separate decision letter dated 29 March 2005, purported to review her case in the light of her assertions regarding Article 8 of ECHR. In that letter the Secretary of State accepted that, during the claimant’s time in the United Kingdom, she may have established a private life but expressed the view that any interference with that private life could be justified in the circumstances of her case. The interference by that stage then envisaged was a decision to proceed with her removal from the United Kingdom as the right of residence conferred by the residence document had by that stage elapsed.[22]The letter appears to proceed on the footing that “your client’s private life has been established in part whilst she has been in this country unlawfully, in the knowledge that she no longer had a right to be here and may be removed at any time”. If that sentence is meant to infer that the claimant knew at all material times from her separation from Mr Barroso that he was not a qualified person then it flies in the face of the undisputed facts. She was not in a position to know and did not know whether or not he was or was not a qualified person. Insofar as it is intended only to cover the period from 7 October 2004 to 29 March 2005, when she had no lawful basis to remain under the residence document, then it is not clear how a period of less than 6 months is thought to impact upon a period of continued residence under various lawful forms of residence for a period of in excess of 12 years. In my judgment this letter falls far short of being an adequate consideration of her claim under Article 8 and, insofar as it is necessary for me to do so, and if so invited, I am minded to grant a judicial review of that so that it may be quashed and the Secretary of State may be required to reconsider that issue in a proper way.

Cited in 4 later judgments