Bancroft Constantine Rose v The Secretary of State for the Home Department [2011] UKUT 276 (IAC)

[2011] UKUT 00276(IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
Date 17 February 2011
THE IMMIGRATION ACTS
Before
LADY DORRIANSENIOR IMMIGRATION JUDGE STOREY
Between
MR BANCROFT CONSTANTINE ROSE (aka Adrian Alan Morris, Kevin Bancroft Rose, Quinn Adam)AppellantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondentDr D Samuels, Solicitor, JDS Solicitors for appellantMr A Skeikh, Home Office Presenting Officer for respondent1. The personal scope of the safeguards against expulsion which Article 27 of 2004/38/EC (the “Citizens Directive”) affords to “family members” does not include "other family members"(OFMs).2. Hence Exception 3 to s.32(4) and (5) of the UK Borders Act 2007 (which arises where the removal of a foreign criminal from the United Kingdom in pursuance of a deportation order would breach the rights of the foreign criminal under the EU treaties [previously “Community treaties”] cannot be invoked by OFMs.3. However, a person who has been found to be an OFM/extended family member under the Immigration (European Economic Area) Regulations 2006 needs to be considered by the Secretary of State as a person in respect of whom the discretion to issue a residence card under regulation 17 may be exercised.4. The result of the exercise of that discretion may be that regulations 20-21 apply to the appellant’s removal, and the decision would not be lawful without regard to them.5. So if consideration has not been given to the exercise of the discretion, the assessment of criteria going to deportation or removal cannot be completed.DETERMINATION AND REASONS
[1]The appellant is a Jamaican national born on 12 October 1961. He came to the UK on 23 August 2002 using a British passport issued on 27 February 2002 to Adrian Alan Morris. On 2 October 2007 a fresh passport was issued to Mr. Morris who had reported the loss of his original passport. On 8 September 2009 the appellant was arrested at Gatwick airport on suspicion of possession of an improperly obtained identity document with intent contrary to section 25(1) of the Identity Cards Act 2006. On 26 September he pleaded guilty to such a charge and was sentenced to twelve months imprisonment.[2]The respondent made two separate decisions in respect of the appellant, both dated 1 April 2010. He had applied for a UK residence card based on his relationship in the UK with an EEA national, Claudette Ashley. That application was refused on the basis that it was not accepted that, in terms of the Immigration (EEA) Regulations 2006 (“the 2006 Regulations”) he had established that he was in a durable relationship with Miss Ashley and thus qualified as an “extended family member” under those Regulations. It was accepted that he had established family life in the UK but it was not accepted that refusal of his application would amount to a breach of Article 8. On the same date, the respondent concluded that the appellant did not come within any of the exceptions from automatic deportation provided for under section 33 of the UK Borders Act 2007 (“the 2007 Act”) and that to deport him would equally not constitute a breach of Article 8.[3]The decision letter relating to deportation does not make it clear whether the respondent’s acceptance of family life for the purposes of article 8 related to life with Ms Ashley only or also with her son Giani, but from the references made therein to the appellant seeming to play the role of “de facto” father, we are satisfied that the acceptance relates to family life with both of them.[4]An appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 was refused by the First-tier Tribunal (hereafter “FTT”) on 29 June 2010. A hearing in the appeal from that decision was heard in the Upper Tribunal before SIJ Ward on 8 December 2010. It is obvious that the SIJ was not assisted at that hearing either by the terms of the skeleton argument on behalf of the appellant or by the submissions made in support of them (factors which we regret to say were repeated before us). We are very conscious of the likelihood that the relevant legislative provisions were not placed before the SIJ. Moreover, the issues which were canvassed at that hearing do not seem to bear any true relationship to the way the matter was argued before the FTT. At the hearing before the FTT the focus was on the question of whether the appellant came within one of the exceptions to automatic deportation raised under section 32 of the United Kingdom Borders Act 2007 and on the effect deportation might have on the Article 8 rights of the appellant. Some consideration was also given to the effect on Article 8 of the rights of others with whom the appellant was enjoying family life. In the skeleton before the SIJ, the point raised related not to the deportation decision but to an argument that the appellant was the “extended family member” of Ms Ashley for the purpose of the 2006 Regulations and so could not be removed because of reg. 21 of those Regulations. Doing her best with the unpromising material before her, the SIJ decided that there had been a material error of law in the determination of the FTT. Fundamentally that was in relation to its assessment under Article 8. She concluded that the tribunal had not made a considered assessment of the nature of the relationship between the appellant and Ms Ashley and that, insofar as it had considered the matter, it was as an afterthought. SIJ Ward concluded that the FTT in making its assessment under Article 8 had not given sufficient regard to the Treaty rights of Ms. Ashley or of her son and had not considered the impact on that assessment of her status as a worker in the UK exercising Treaty rights. We consider that SIJ Ward was fundamentally right in both respects. The SIJ made an order for a resumed hearing to enable the decision to be remade and concluded that, in light of the fact that two bundles, including witness statements had already been lodged, a decision could be remade without hearing further evidence. It is to the remaking of that decision we now turn.[5]SIJ Ward did not specifically preserve any findings of the FTT. That said, some of the findings of fact made by the FTT were not in dispute before us, although there was dispute about the conclusions which it might be legitimate to draw from those findings insofar as they bore on the nature of the relationship between Ms Ashley, her son and the appellant. We regard it as accepted that, in the words of the FTT, “private and family life exists between the appellant and Claudette Ashley and her son, Giani” (para 35). The tribunal did go on to say that the relationship in each case was “limited” which is a somewhat cryptic descriptor. However, whatever it precisely meant, it plainly did not mean that family life did not exist at all. In expressing itself so we think it had in mind that the evidence before it showed there to be only a limited factual content to the appellant’s family life ties. It was on that somewhat confused background that the case came before us for submissions.[6]We should record that during the submissions to us, no reference was made to any of the provisions in the 2007 Act. Reference was made to the terms of the 2006 Regulations and arguments were advanced as to the Article 8 rights, in terms of family life, of the appellant, Ms Ashley and her son. It is therefore worth setting out the basis on which it seemed to us that the matter has to be approached.

Legal framework

[7]Sections 32 and 33 of the 2007 Act read as follows: "32 Automatic Deportation(1) In this section 'foreign criminal' means a person – (a) who is not a British Citizen, (b) who is convicted in the United Kingdom of an offence, and (c) to whom Condition 1 or 2 applies.(2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months.(3) Condition 2 is that – (a) the offence is specified by order of the Secretary of State under s. 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (c41) (serious criminal), and (b) the person is sentenced to a period of imprisonment.(4) For the purposes of s.3(5)(a) of the Immigration Act 1971 (c77), the deportation of a foreign criminal is conducive to the public good.(5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to s.33).(6) The Secretary of State may not revoke a deportation order made in accordance with subsection (5) unless – (a) he thinks that an exception under s.33 applies, (b) the application for revocation is made while the foreign criminal is outside the United Kingdom, or (c) s.34(4) applies.(7) Subsection (5) does not create a private right of action in respect of consequences of non-compliance by the Secretary of State. 33 Exceptions (1) Sections 32(4) and (5) – (a) do not apply where an exception in this section applies (subject to subsection (7) below), and (b) are subject to sections 7 and 8 of the Immigration Act 1971 (Commonwealth citizens, Irish citizens, crew and other exemptions). (2) Exception 1 is where removal of a foreign criminal in pursuance of the deportation order would breach – (a) a person's Convention rights, or (b) the United Kingdom's obligations under the Refugee Convention. (3) Exception 2 is where the Secretary of State thinks that the foreign criminal was under the age of 18 on the date of decision. (4) Exception 3 is where the removal of a foreign criminal from the United Kingdom in pursuance of a deportation order would breach the rights of the foreign criminal under the Community treaties. (5) Exception 4 ... [concerns extradition] (6) Exception 5 ... [concerns people subject to various orders under the Mental Health Act 1983 or their equivalents in Scotland or Northern Ireland] (6A) Exception 6 is where the Secretary of State thinks that the application of section 32(4) and (5) would contravene the United Kingdom's obligations under the Council of Europe Convention on Action against Trafficking in Human Beings (done at Warsaw on 16th May 2005). (7) The application of an exception - (a) does not prevent the making of a deportation order; (b) results in it being assumed neither that deportation of the person concerned is conducive to the public good nor that it is not conducive to the public good; but s.32(4) applies despite the application of Exception 1 or 4.”[8]It is also necessary to set out the provisions of the Directive and the 2006 EEA Regulations dealing with family members, mentioning first of all those dealing with close family members: “Article 2.

For the purposes of this Directive:

(b) …"

[9]Regulation 7 of the 2006 Regulations specifies that:
“7 (1) …for the purposes of these Regulations 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). dependants of his, his spouse or his civil partner; (c). dependent direct relatives in his ascending line or that of 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). (2). … (3). Subject to paragraph (4), a person who is an extended family member and has been issued with an EEA family permit, a registration certificate or a residence card shall be treated as the family member of the relevant EEA national for as long as he continues to satisfy the conditions in regulation 8(2),(3),(4) or (5) in relation to that EEA national and the permit, certificate or card has not ceased to be valid or been revoked. (4). Where the relevant EEA national is a student, the extended family member shall only be treated as the family member of that national under paragraph (3) if either the EEA family permit was issued under regulation 12(2), the registration card was issued under regulation 16(5) or the residence card was issued under regulation 17(4).”
[10]For OFMs/extended family members, the relevant provisions are Article 3 and regulation 8 respectively. Article 3 provides: “1. This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.[2]Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:(a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family members by the Union citizen;(b) the partner with whom the Union citizen has a durable relationship, duly attested. The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.[11]Prior to 2 June 2011, reg. 8, headed, "Extended family members", stated that: “1. In these Regulations ‘extended family member’ means a person who is not a family member of an EEA national under regulation 7(1)(a), (b) or (c) and who satisfies the conditions in paragraphs (2), (3), (4) or (5).[2]A person satisfies the condition in this paragraph if the person is a relative of an EEA national, his spouse or his civil partner and –(a) the person is residing in an EEA State in which the EEA national also resides and is dependent upon the EEA national or is a member of his household;(b) the person satisfied the condition in paragraph (a) and is accompanying the EEA national in the United Kingdom or wishes to join him there; or(c) the person satisfied the condition in paragraph (a), has joined the EEA national in the United Kingdom and continues to be dependent upon him or to be a member of his household.[3]A person satisfies the conditions in this paragraph if the person is a relative of an EEA national or his spouse or his civil partner and, on serious health grounds, strictly requires the personal care of the EEA national, his spouse or his civil partner.[4]A person satisfies the condition in this paragraph if the person is a relative of an EEA national and would meet the requirements in the immigration rules (other than those relating to entry clearance) for indefinite leave to enter or remain in the United Kingdom as a dependent relative of the EEA national were the EEA national a person present and settled in the United Kingdom.[5]A person satisfies the conditions in this paragraph if the person is the partner of an EEA national (other than a civil partner) and can prove to the decision maker that he is in a durable relationship with the EEA national.”

Cited in 1 later judgment