Ullah, R (On the Application Of) v The Secretary of State for the Home Department [2017] EWHC 1999 (Admin)

[2017] EWHC 1999 (Admin)Case No CO/757/2017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 31/07/2017
Before
JOHN CAVANAGH QC(SITTING AS A DEPUTY JUDGE OF THE HIGH COURT)
Between
R (on the application of Ehsan ULLAH)ClaimantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Sharaz Ahmed (instructed by 12 Bridge Solicitors) for ClaimantZane Malik (instructed by Government Legal Department) for DefendantHearing Hearing date: 20 July 2017
Judgment ApprovedJohn Cavanagh QC:Introduction
[1]This is an application for judicial review of the decision of the Defendant (the Secretary of State), dated 14 February 2017, to reject the Claimant’s application for a residence card, which he applied for on the basis that he is the unmarried partner of an EEA national exercising Treaty rights in the United Kingdom. The reason why the Claimant’s application was rejected was that his application was not accompanied by a valid passport in his name. The application was, instead, accompanied by a valid Pakistani identity card. The Defendant has a discretion to accept alternative evidence of identity and nationality where the person is unable to obtain or produce the required document due to circumstances beyond the person's control, but she declined to exercise her discretion in the Claimant’s favour because the Claimant had not submitted any evidence to show that he could not obtain the required passport (for example, correspondence from the Pakistani authorities).[2]The letter on behalf of the Secretary of State, dated 14 February 2017, which notified the Claimant of the Secretary of State’s decision, said that:
“Because your application falls for refusal on this basis, no further consideration has been given to the other evidence that you have supplied in support of your application. If you are able to supply the necessary identity document, you may wish to submit a further application for consideration.”
[3]The Claimant is represented by Mr Sharaz Ahmed and the Secretary of State by Mr Zane Malik. I am grateful to them both for their assistance.[4]Three main grounds are relied upon in the Claimant’s challenge to the Secretary of State’s decision. The first is that the Secretary of State erred in law in failing to specify the statutory instrument pursuant to which she took her decision, and/or erred in thinking that she was exercising her power under the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) (the 2006 Regulations), rather than the delegated legislation which actually applied to the Claimant’s case, the Immigration (European Economic Area) Regulations 2016 (SI 2016/1052) (the 2016 Regulations). The second ground, to which the bulk of the oral submissions was directed, is that the Secretary of State has misinterpreted the 2006 Regulations, in that the relevant requirement is that the application must be accompanied by the passport of the EEA national who is the partner of the applicant, rather than the passport of applicant himself or herself. I am invited by the Claimant to consider referring this question to the Court of Justice of the European Union (CJEU). The third and final ground is that the Secretary of State acted irrationally in failing to exercise her discretion to accept the Claimant’s Pakistani identity card as alternative evidence of identity and nationality.[5]I will first set out the legislative background and then the relevant facts (which are within a narrow compass). I will then deal with the grounds in turn.

The Legislative Background

[6]The 2016 Regulations were made by the Secretary of State under powers conferred on her by s2(2) of the European Communities Act 1972 and s109 of the Nationality, Immigration and Asylum Act 2002. They are, at least in part, the implementation into domestic law of Directive 2004/38/EC, on the rights of citizens of the Union and their family members to reside freely within EU member states. The 2016 Regulations came into force on 1 February 2017, replacing the 2006 Regulations. The application for a residence card to which this claim relates was made on 20January 2017 (though the covering letter is dated 17 December 2016), and so was made before the Regulations came into force, but it is common ground that the 2016 Regulations, rather than the 2006 Regulations, apply to this case. This is the effect of transitional provisions in paragraph 4 of Schedule 6 to the 2016 Regulations, which provide, in relevant part, that an application for a residence card that was made but not determined before 1 February 2017 is to be treated as having been made under the 2017 Regulations. As I have said, the Claimant’s application was determined after the Regulations came into force, on 14 February 2017. The only regulation that does not apply to applications, like this one, that were made before 1 February 2017 but were determined after that date is regulation 21, which imposes some requirements about the manner in which applications must be made. However, as explained below, both parties rely upon the terms of regulation 21 in support of their construction arguments.[7]The key regulations, for present purposes, are regulations 18(4) and 42.[8]Regulation 18(4) provides as follows:
“(4) The Secretary of State may issue a residence card to an extended family member not falling within regulation 7(3) [which has no application in the Claimant’s case] who is not an EEA national on application if— (a) the application is accompanied or joined by a valid passport; (b) the relevant EEA national is a qualified person or an EEA national with a right of permanent residence under regulation 15; and (c) in all the circumstances it appears to the Secretary of State appropriate to issue the residence card.”
[9]Regulation 18(5) provides that:
“(5) Where the Secretary of State receives an application under paragraph (4) an extensive examination of the personal circumstances of the applicant must be undertaken by the Secretary of State and if the application is refused, the Secretary of State must give reasons justifying the refusal unless this is contrary to the interests of national security.”
[10]The definition of ‘extended family member’, set out in regulation 8, includes, by regulation 8(5), a person who is the partner of, and in a durable relationship with, an EEA national, and who is able to prove this to the decision-maker.[11]It will be seen from regulation 18(4)(a) that it is a condition of the issuance of a residence card that “the application is accompanied or joined by a valid passport”.[12]The equivalent provision to regulation 18(4) in the 2006 Regulations, regulation 17(4), was in identical terms, save that it did not impose a requirement that the application be accompanied or joined by a valid passport. It follows that this was a new requirement.[13]Regulation 42 grants to the Secretary of State the power to waive the condition in regulation 18(4)(a) and to proceed to consider whether to issue a residence card, where the person is unable to obtain or produce the required document due to circumstances beyond the person’s control. Regulation 42(1) provides as follows:
“42.— Alternative evidence of identity and nationality (1) Subject to paragraph (2), where a provision of these Regulations requires a person to hold or produce a valid national identity card issued by an EEA State or a valid passport, the Secretary of State may accept alternative evidence of identity and nationality where the person is unable to obtain or produce the required document due to circumstances beyond the person's control.”

The Facts

[14]The Claimant, who was born in 1986, is a citizen of Pakistan. He entered the United Kingdom some years ago and has been working illegally. He was encountered on 15 June 2016 and was placed on reporting restrictions. He was detained on 20 January 2017, on reporting, and directions for his removal were subsequently issued. He remains in detention.[15]The Claimant has made three applications for a residence card, in each case based on his relationship with a Lithuanian national, Ms Jurate Sakaliene, who is working in the UK as a nurse. The first application was made on 29 June 2015 and was refused by the Secretary of State on 11 November 2015. The second application was made on 5 January 2016, and was refused on 19 May 2016. The third application, which is the one to which these proceedings relate, was made by the Claimant on 20 January 2017, the day on which he was detained (though, as I have said, the solicitors’ covering letter which accompanied the application was dated 17 December 2016). In the same application, ie the third one, the Claimant’s partner applied for and, as I understand it, was granted, a residence certificate under regulation 17.[16]The Claimant’s application did not enclose his passport. He enclosed instead his Pakistani identity card. The application was made with the assistance of a firm of solicitors, the House of Immigration. The covering letter from the Claimant’s solicitors which accompanied the application, dated 17 December 2016, said; “Mr Ullah does not hold a passport and is unable to obtain one despite his efforts”. No evidence, such as correspondence with the Pakistani authorities or a witness statement, was provided in support of the assertion that the Claimant had made efforts to obtain a passport, or to explain why he had been unsuccessful, or to say why the difficulties were beyond his control.[17]The Claimant originally issued this Judicial Review claim on 13 February 2017, before the Secretary of State’s decision was taken. At that stage, the challenge was on the basis that the Claimant’s detention and impending removal was unlawful in circumstances in which he had an outstanding application for a residence card. Once the Secretary of State had rejected the Claimant’s application for a residence card, on 14 February 2017, the Claimant sought leave to amend his Claim Form so as to challenge that decision. Permission to amend was granted on the papers by Karen Steyn QC, sitting as a Deputy Judge of the High Court, on 24 February 2017. Ms Steyn QC directed that there be an oral hearing of the Claimant’s application for permission. This took place on 22 March 2017, before Charles Bourne QC, again sitting as a Deputy Judge of the High Court, and Mr Bourne QC granted permission to apply for judicial review, limited to a challenge to the Secretary of State’s decision of 14 February 2017. Ground 1: the Secretary of State’s decision letter did not specify the statutory instrument that the Secretary of State believed was to be applied and/or the Secretary of State mistakenly thought that she was applying the 2006 Regulations[18]Mr Ahmed, on behalf of the Claimant, points out that the decision letter does not state the legislative provisions which were applied by the Secretary of State, and submits that this invalidates the decision. Mr Ahmed submits that the decision is unlawful because it does not state the ‘legal premise’ upon which the decision was taken. I do not agree. There is no statutory or other requirement for a decision letter such as this specifically to state the legislation pursuant to which the decision-maker took the decision. The first sentence of the decision letter makes clear that the decision concerns the Claimant’s application for a residence card as confirmation that he is the unmarried partner of an EEA national who is exercising Treaty rights in the United Kingdom. The body of the letter gives a full explanation as to why the decision to refuse the Claimant’s application was made. This was all that was required. The ‘legal premise’ for rejection is clear from the letter.[19]Mr Ahmed makes a further, slightly different, submission. This is that the letter indicates that the Secretary of State took her decision by reference to the wrong legislation, the 2006 Regulations, rather than the 2016 Regulations. Mr Ahmed, rightly in my view, accepts that the applicable Regulations were the 2016 Regulations. I do not accept this submission. Though the letter does not specifically state that the Secretary of State was applying the 2016 Regulations, it is clear that she was doing so, because the reason given for rejecting the Claimant’s application was that he had submitted a Pakistani identity card with his application and that these are not deemed as valid evidence of nationality. The letter also made clear that this was the sole reason for rejection and that, because of the Claimant’s failure to submit his passport, the Secretary of State had given no further consideration to his application. This explanation makes it clear that the Secretary of State was applying the 2016 Regulations, not the 2006 Regulations, because the condition that the application is accompanied or joined by a passport exists only in the 2016 Regulations, not in the 2006 Regulations. Ground 2: regulation 18(4) does not require the Claimant to provide his own passport to accompany his application for a residence card[20]Mr Ahmed’s next argument is that the requirement in regulation 18(4) that the application be accompanied or joined by a valid passport is to be read as referring to the passport of the EEA family member and not that of the Claimant. The passport of Ms Sakaliene was submitted with the Claimant’s application (indeed, his application and Ms Sakaliene’s application were submitted together), and so, if this is the requirement, the condition was satisfied.[21]This is a pure point of statutory construction. Both counsel are agreed that there is no case-law authority that can assist me in coming to my conclusion.[22]I think that the Claimant’s argument is misconceived. It is true that regulation 18(4) itself does not specify in terms whether the passport that must accompany or be joined with the application is the passport of the applicant or the applicant’s partner, but I think that there are a number of reasons why the reference must be a reference to the applicant’s own passport.[23]First, where an individual is being required to go through a process such as this, and there is a statutory requirement to provide a passport, but the statutory provision does not say whose passport is being referred to, I think that the obvious inference is that the passport is the applicant’s own and not someone else’s. If it was someone else’s, one would expect the statutory instrument to say so specifically.[24]Second, it was common ground before me that there are other provisions within the 2016 Regulations which require the applicant, rather than their EEA national sponsor, to supply their passport. These are regulations 18(1) and (2), which concern the Secretary of State’s obligation in certain circumstances to issue a residence card to non-EEA nationals who are family members (rather than extended family members) of an EEA national, and regulation 19(2) which concerns the Secretary of State’s obligation to issue a non-EEA national with a right of permanent residence under regulation 15 with a permanent residence card, if an application is made. In light of the requirement in these other provisions that a passport is required of a non-EEA national, it is not surprising that the non-EEA national who seeks a residence card under regulation 18(4) should similarly be required to supply his or her own passport.[25]Third, in my judgment, this interpretation is consistent with the structure and requirements of the 2016 Regulations generally. Where the 2016 Regulations require the provision of documentary evidence of identity and nationality by EEA nationals, that evidence can take the form of a national identity card or a passport. Where the 2016 Regulations require the provision of such documentary evidence by non-EEA nationals, that evidence can only take the form of a passport. See the following provisions: i) regulations 11(1) and 11(2), concerning the right of admission to the UK by EEA nationals and non-EEA nationals, respectively; ii) regulations 13(1) and (2), concerning the initial right of residence of EEA nationals and non-EEA nationals, respectively; iii) regulations 17(1), (3) and (4), concerning the issue of a registration certificate to EEA nationals (in which cases a valid national identity card or passport will suffice); iv) regulations 18(1) and (2), which concern the mandatory issue of a residence card to non-EEA nationals who satisfy certain conditions (in which cases only a passport will suffice); v) regulations 19(1) and (2), which concern the issue of a document certifying permanent residence and a permanent residence card to EEA nationals and non-EEA nationals, respectively; and, vi) regulation 20(1) and (2), which concern the issue of a derivative residence card to EEA nationals and non-EEA nationals, respectively.[26]In each of these cases, an EEA national can meet this requirement by providing a national identity card or a passport, whereas a non-EEA national can only do so by providing a passport.[27]In these proceedings, we are concerned with regulation 18(4), which deals with the grant of a residence card to an extended family member of an EEA national who is not himself or herself an EEA national. The requirement in regulation 18(4)(a) is that the application must be accompanied or joined by a passport. A national identity card will not suffice. If the requirement was one that related to the EEA sponsor, it would be consistent with the approach taken in the rest of the Regulations for the requirement to be satisfied by the provision of a national identity card or a passport. But regulation 18(4)(a) requires a passport, and a national identity card will not do. In my judgment, this is a clear indication that the requirement applies to the non-EEA national applicant, not to the EEA national sponsor. It would make no sense for a national identity card to be sufficient as proof of an EEA national’s identity and nationality for the purposes of every other part of the 2016 Regulations, but not regulation 18(4).[28]Mr Malik, counsel for the Secretary of State, tells me that the difference in treatment between EEA nationals and non-EEA nationals in this regard is based upon EU law: as a matter of EU law, member states are not permitted to impose the requirement to hold a passport as a requirement in order to exercise mandatory free movement rights. Rather, it is necessary that each member state accepts a national identity card. I was not shown the EU legislation which imposes this requirement. However, whether or not this is so, I think that it is plain from the way that the 2016 Regulations are structured and drafted that the passport obligation in regulation 18(4) relates to the applicant’s passport, and not that of their EEA sponsor.[29]Fourth, I do not think it would make sense for there to be a requirement for the applicant to supply the sponsoring EEA national’s passport at the stage of making a regulation 18(4) application. The requirement that must be satisfied, pursuant to regulation 18(4)(b), in respect of the sponsoring EEA national, is that s/he has a right of permanent residence, and the key documentary proof of such a right is not the EEA national’s passport but a certificate of permanent residence and/or a residence card, issued under regulation 19. It follows that it would not make sense to require sight of the passport of the sponsoring EEA national at the stage when the non-EEA partner is seeking a residence card, because what the Secretary of State really needs to see is the documentary proof of the EEA national’s permanent residence, rather than their passport, which does not, of itself, provide proof of a right of permanent residence.[30]Moreover, the EEA national will, pursuant to regulation 19(1), already have supplied the Secretary of State with his or her valid national identity card or passport in order to be issued with a certificate of permanent residence and a residence card, pursuant to regulation 19(1). It follows that, if the sponsoring EEA national has a certificate of permanent residence and a residence card, so as to satisfy regulation 18(4)(b), the Secretary of State will know that the EEA national has provided his or her valid national identity card or passport to the Secretary of State. There is no obvious reason why this would be required again. I should repeat here that, as is often the case, the EEA national, Ms Sakaliene, applied for a certificate of permanent residence at the same time as the Claimant made his application, and in the same document. It was for this reason that her passport was enclosed with the joint application. Nonetheless, the point is still a good one: the EEA national’s passport, or an identity card, is required to obtain the EEA national’s certificate of permanent residence and residence card, and it is that certificate or residence card that is then required in order for the non-EEA partner to make his or her application.[31]Again, regulation 19(1) makes clear that an EEA national, in order to obtain his or her own residence card, need only produce either a valid national identity card or a passport. It would be odd if there was no need to produce a passport for the purpose of obtaining the EEA’s national’s own residence card, but there was a need to provide the passport in order to obtain the residence card of the non-EEA partner. Moreover, an EEA national can reside in this country, perfectly lawfully, without being in possession of a passport.[32]Fifth, standing back, it would be strange if there were a statutory precondition that the Applicant must provide the sponsoring EEA national’s passport but no statutory requirement that the Applicant himself or herself must provide their own passport or any other identity document.[33]Sixth, my conclusion on the point of construction is reinforced by the structure of regulation 18 itself. It is regulation 18(4)(a) which requires that the application must be accompanied or joined by a valid passport, but it is a different sub-paragraph, regulation 18(4)(b), that deals with the position of the sponsoring EEA national and which imposes the requirement that the EEA national is a qualified person with a right of permanent residence. If the requirement for a passport related to the sponsoring EEA national, one would have expected to have seen the requirement for a valid passport to be imposed in the sub-paragraph which deals with the EEA national, regulation 18(4)(b), not 18(4)(a).[34]I will now deal with a number of points that were advanced by Mr Ahmed in support of the contention that the reference to a passport in regulation 18(4) is a reference to the sponsoring EEA national’s passport, not to the applicant’s passport.[35]Mr Ahmed points out that regulation 18(1) refers to the ‘production of’ a valid passport, whereas regulation 18(4) refers to the application ‘being accompanied or joined by’ a valid passport. It is common ground that the reference to a passport in regulation 18(1) is a reference to the applicant’s passport, and Mr Ahmed submits that the difference in language between the two provisions shows that, in contrast, the reference to a passport in regulation 18(4) is a reference to the EEA national sponsor’s passport. I do not agree. I do not see how this difference in wording has any significance for the question of whose passport it is that must be shown to the Secretary of State. The difference in wording is about what must be done with the passport, not about whose passport is being referred to.[36]Mr Malik provided the Court with an explanation for the difference in language between the two provisions. It is that the requirement to issue a residence card if the conditions in regulation 18(1) are satisfied is imposed by EU law. Under EU law, he told me, it is not permitted for a member state to require that a passport be supplied at the same time as the application is filed. Therefore, the words ‘on application and production of’ are used in regulation 18(1) so as to make clear that it is sufficient if the individual lodges the application and then, at a later stage, produces his or her passport for examination. Regulation 18(4) is different, because it deals with circumstances in which EU law does not require that the member state issues a residence card. This means that the member state has more flexibility about the conditions it can impose for the grant of a residence card in such cases, and the UK Parliament has chosen to impose a requirement that the passport must be supplied with the application form, rather than at a later date. The reason for the rather awkward wording, ‘the application is accompanied or joined by a valid passport’ is explained by the fact that many applications under regulations 18(4) (including the present one) are accompanied by an application by the sponsoring EEA national for his or her own residence card. The word ‘accompanied’ is apt for cases in which the non-EEA national makes a stand-alone application and the words ‘joined by’ are apt for cases in which the EEA national and non-EEA national make joint applications.[37]I find Mr Malik’s explanation for the difference in wording between regulations 18(1) and 18(4) to be persuasive, but my decision does not depend on it, in particular as I was not shown the relevant EU legislation. In any event, as I have already said, I do not think that the difference in wording between regulations 18(1) and 18(4) sheds any light on the question whether the passport that is referred to in regulation 18(4) is or is not the applicant’s own.[38]Mr Ahmed also relies on regulation 21(5). This states that:
“21(5) Where an application for documentation under this Part is made by a person who is not an EEA national on the basis that the person is or was the family member of an EEA national or an extended family member of an EEA national, the application must be accompanied or joined by a valid national identity card or passport in the name of that EEA national.”
[39]In fact, as stated above, regulation 21 does not apply to the Claimant’s case, because of the transitional provisions in paragraph 4 of Schedule 6 to the 2016 Regulations. However, I do not think that this, of itself, disqualifies regulation 21(5) from being prayed in aid in support of the construction argument. In any event, however, in my judgment, regulation 21(5) serves strongly to support the Secretary of State’s interpretation of regulation 18(4), rather than the Claimant’s interpretation. As Mr Malik pointed out, if the Claimant were right that regulation 18(4)(a) requires that the sponsoring EEA national’s passport accompanies the application, then there would be no need for regulation 21(5) at all. It is regulation 21(5), not regulation 18(4), which requires the applicant to supply proof of identity and nationality in respect of the sponsoring EEA national. Also, regulation 21(5) is consistent with the other provisions of the Regulations, referred to above, in that it permits evidence of the identity and nationality of an EEA national to be provided either by a national identity card or a passport.[40]Finally, Mr Ahmed relies on the differences between regulation 17 of the 2006 Regulations and regulation 18 of the 2016 Regulations. As I have already said, regulation 17 of the 2006 Regulations has no passport requirement of the type imposed by regulation 18 of the 2016 Regulations. However, I think that this point goes nowhere. It is clear that, in the 2016 Regulations, Parliament imposed a passport requirement that did not formerly exist, but this does not affect the proper interpretation of regulation 18(4) of the 2016 Regulations, and, in particular, does not assist with working out whose passport it is that has to be supplied.[41]For the above reasons, I agree with the Secretary of State that regulation 18(4)(a) of the 2016 Regulations imposed a condition that the Claimant’s application be accompanied or joined by his own valid passport. This condition was not satisfied by the inclusion of Ms Sakhaliene’s passport with his application. It follows that the Secretary of State was right to reject the Claimant’s application, unless the Secretary of State erred in law in declining to exercise her discretion under regulation 42 to accept the Claimant’s Pakistani identity card instead, and so I will now go on to deal with this ground of challenge. Ground 3: the Secretary of State acted in an irrational manner in declining to accept the Claimant’s identity card in place of his passport[42]As stated above, regulation 42 of the 2016 Regulations provides that the Secretary of State may accept alternative evidence of identity and nationality where the person is unable to obtain or produce the required document due to circumstances beyond the person's control. The Claimant contends that the Secretary of State acted in a Wednesbury unreasonable way in declining to accept his identity card. The letter dated 14 February 2017 in which the Claimant was notified of the decision said that identity cards are not deemed to be valid evidence of nationality and as such cannot be accepted for the purposes of the application. The letter noted that in some circumstances the Secretary of State can accept alternative evidence of identity and nationality if the applicant cannot get or produce the required document due to circumstances beyond their control but continued: “However, you have not submitted any evidence to show that you cannot obtain the required document (for example correspondence from the Pakistani authorities)”.[43]It is not disputed that the Secretary of State was right that the Claimant had not submitted any evidence to show that he could not obtain a passport, or that this was due to circumstances beyond his control. He did not give any explanation of the steps, if any, that he had taken in order to try to obtain a passport. The only thing that was said about this matter was in the covering letter from the Claimant’s then solicitors, the House of Immigration. As I have said, this letter said simply that the Claimant was unable to obtain a passport, despite his efforts. Neither the letter nor the application specified what those efforts had been.[44]In these circumstances it is plain, in my judgment, that the Secretary of State was entitled to come to the conclusion that she would not accept alternative evidence of the Claimant’s nationality and identity. The statutory requirement in regulation 18(4)(a) was for the Claimant to supply his passport. The Secretary of State was entitled, in the absence of any supporting evidence, to take the view that she was not satisfied that the Claimant was unable to obtain or produce the required document due to circumstances beyond his control. The mere assertion by his solicitors, on the Claimant’s behalf, that he had been unable to obtain a passport despite his efforts was not enough.[45]As Mr Malik put it in oral argument, this is a classic lawful exercise of discretion. It is clear on the face of the decision letter that the decision-maker appreciated that there was a discretion, and took into account the representations made on behalf of the Claimant, but declined to exercise the discretion in his favour because there was insufficient evidence that the Claimant had been unable to produce a passport because of circumstances beyond his control.[46]The Claimant says that this was an irrational decision because the Secretary of State’s guidance notes for applicants misled the Claimant in that they stated that it was sufficient for him to provide a national identity card. I do not agree.[47]The relevant guidance notes are the ‘EEA(FM) guidance notes’, published in December 2015. The section of the guidance notes upon which the Claimant relies is the following:
“Proof of nationality and identity • Your valid passport, travel document or (if you’re an EEA national) national identity card • Valid passport, travel document or EEA national identity card for each family member included in your application (if applicable) • Valid passport or national identity card for your sponsor (named in section 2). If you’re not able to submit a valid passport, travel document or national identity card for you, your sponsor or any family members included in your application, you must explain why ….. and submit alternative evidence of your/their identity or nationality. Please note: We can only accept alternative evidence of your identity and nationality if you are unable to submit a valid passport, travel document or EEA national identity card due to circumstances under your control.”
[48]In my view, there is nothing that is misleading in this section of the guidance notes. The key point is that the guidance notes are not solely for the use of applicants who are in the same position as the Claimant, i.e. non-EEA nationals who are applying as extended family members of EEA nationals. The introductory paragraph to the guidance notes makes clear that they provide guidance to EEA nationals and to non-EEA nationals alike who are seeking a registration certificate or residence card as: the family member of an EEA national; a family member who has retained the right of residence; or, a family member of a British citizen under the Surinder Singh judgment. The first bullet point makes clear that it is only if the individual is an EEA national that a national identity card will suffice for the applicant. The second and third bullet points deal with something different: the second bullet point deals with family members if the application covers other family members (which the Claimant’s did not) and the third bullet point deals with the EEA sponsor, not with the applicant. The paragraph that follows the bullet points does not say that a national identity card will be sufficient in every case. It is absolutely clear from the bullet points that the national identity card will only be sufficient if the individual is an EEA national. The final paragraph is wholly consistent with the 2016 Regulations and with the Secretary of State’s practice: if the relevant document is missing, the Secretary of State will only accept alternative documentation if the individual is unable to submit the right documentation because of circumstances beyond his or her control.[49]Mr Ahmed also refers to the application form, issued by the Secretary of State, that was filled it on the Claimant’s behalf. This form states, at paragraph 1.21, under the heading, ‘Your passport or national identity card’:
“If you are not submitting a valid passport, travel document or national identity card, please say why in the box below and submit alternative evidence of your identity and nationality (continue on a separate sheet if necessary).”
The section to be filled in was left blank in the Claimant’s application form.[50]In my judgment, there is no basis upon which it can be said that this language in the application form could have misled the Claimant or his advisers. The point is that the form is not one that is specific to non-EEA applicants. The first paragraph in the form, paragraph 1.1, asks, “Which document are you applying for?” and asks the individual to tick either a box which states:
“I’m an EEA national and I’m applying for a registration certificate”;or, “I’m a non-EEA national and I’m applying for a residence card”
. It is clear, therefore, that the form is multi-purpose and the reference in paragraph 1.21 to a national identity card cannot be regarded as an indication that a national identity card is good enough even for a non-EEA applicant.[51]Since there is no valid basis for the contention that the Claimant has been misled by the guidance notes or the application form, I do not need to go on to consider whether, if he had been misled, this would have meant that the Secretary of State’s decision to reject his application was irrational.

Reference to the CJEU

[52]Mr Ahmed asked me, if I was troubled by the construction of the 2016 Regulations, to consider making a reference to the CJEU. This is on the basis that the 2016 Regulations are derived from Directive 2004/38/EC. Mr Malik, on behalf of the Secretary of State opposes this invitation.[53]I have discretion whether to make a reference under Article 267 of the Treaty on the Functioning of the European Union, if I consider it necessary to obtain a ruling of the CJEU on a point of EU law that is relevant to an issue in the case. I have not been shown the Directive, and I have not been shown anything which would lead me to believe that the task of interpreting the meaning of regulation 18(4) would be assisted by a reference to the CJEU. I have not been provided with a draft of the question that should be asked of the CJEU. In my judgment, applying normal domestic principles of statutory construction, the meaning and effect of regulation 18(4) is absolutely clear. So far as I am aware, no point of EU law arises in this case. In those circumstances, I do not think that it is necessary or appropriate for me to make a reference.

Conclusion

[54]For the above reasons, this application for judicial review is dismissed. This is not necessarily, however, the end of the road for the Claimant. As the rejection letter of 14 February 2017 made clear, if the Claimant became able to supply a passport, he would be able to submit a further application for consideration. The Claimant’s amended grounds state that he is in the process of applying for a new passport from the Pakistani authorities. Moreover, as the Secretary of State’s skeleton argument pointed out, if the Claimant has any evidence to show that he cannot obtain a passport for reasons beyond his control, it is open to him to make a fresh application.