This case was heard in the Upper Tribunal (Immigration and Asylum Chamber) (”UT”) before Upper Tribunal Judge Caravan on 07/02/19. It concerned whether the Secretary of State for the Home Department (SSHD) could lawfully refuse an application for a residence card on the sole ground that specified evidence, relating to the EEA national, had not been provided in accordance with the Immigration (European Economic Area) Regulations 2016 (“the 2016 EEA Regulations”).
The appellant was a Pakistani national issued with a residence card, by the SSHD, as the family member of his EEA national spouse on 12/03/14.
On 16/10/17, following a divorce with the EEA national, the appellant applied for a residence card to recognise a right of residence as a former EEA family member who had retained a right of residence.
The SSHD refused the application on 13/02/18 on the basis that the applicant had:
The SSHD concluded that without valid the passport /ID card for the EEA the appellant had not demonstrated that he had been the family member of an EEA national and was therefore not entitled to rely on provisions of the 2016 EEA Regulations.
The EEA 2016 Regulations
Regulation 18 (1) – (3) of the EEA Regulations 2016 sets out the following requirements for the issue of a residence card recognising a retained right of residence:
18-(1) The Secretary of State must issue a residence card to a person who is not an EEA national and is the family member of a qualified person or of an EEA national with a right of permanent residence under regulation 15 on application and production of—
(a) a valid passport; and
(b) proof that the applicant is such a family member.
(2) The Secretary of State must issue a residence card to a person who is not an EEA national but who is a family member who has retained the right of residence on application and production of—
(a) a valid passport; and
(b) proof that the applicant is a family member who has retained the right of residence.
(3) On receipt of an application under paragraph (1) or (2) and the documents that are required to accompany the application the Secretary of State must immediately issue the applicant with a certificate of application for the residence card and the residence card must be issued no later than six months after the date on which the application and documents are received.
Regulation 21(5) of the 2016 EEA Regulations stated as follows:
(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.
Regulation 42 of the 2016 EEA Regulations stated as follows:
42.—(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.
Appeal to the FtT
The appellant appealed the decision to the First-tier Tribunal (Immigration and Asylum chamber) (FtT) on the basis that regulation 18 of the EEA Regulations 2016 did not require him to produce the passport of his former spouse.
Decision of the FtT
The appeal was dismissed, on the papers, by the FtT Judge Black on the basis that the appellant had failed to provide any explanation as to why he had been unable to produce the passport/identity card of his ex-spouse or documentation of any attempts made to obtain this as required by Regulation 42(2) .
Appeal to the UT
The appellant appealed to the UT on renewing the ground that he was not required to produce his ex-spouses’ valid passport/ID document in order to establish a retained right of residence under European law.
Decision of the UT
The UT noted that the Citizens Directive (2004/58/EC) recognised a right of residence for family members of EEA nationals exercising rights of free movement under European law. This Directive also permitted member states to introduce structured processes for administrating applications for residence documentation to ensure consistency in decision making. Any processes introduced were required not to go beyond what was necessary to establish a right of residence. It recognised that the need for some evidence relating to the position of the EEA national was central to any assessment of the rights of residence of non-EEA family members, given that these could only be derived from the EEA national exercising their right of free movement.
The plain wording in Regulation 18 of the 2016 Regulations, however, suggested that the Requirement for a “valid passport” must only have been intended to relate to the non-EEANational the UT noting: “If it had meant the passport of the EEA national it would have stated as such.”
The SSHD had already previously issued the appellant with a residence card as a family member of an EEA citizen who was exercising her right of free movement on 12/03/14. At that stage, the appellant would have been required to produce evidence demonstrating that he was, in fact, the family member of an EEA national. This application was likely to have included the provision of the appellant’s then wife’s passport or other form of identity and evidence to show that she was exercising rights of free movement in the UK.
When the appellant applied for a document to confirm his retained right of residence on 16/10/17 he was therefore only required to produce (i) a valid passport to confirm his identity; and (ii) proof that he is a family member who has retained the right of residence which the SSHD, bar the issue of the EEA national passport, the SSHd had accepted had otherwise been proven.
The UT concluded that that the FtT decision involved the making of an error of law, set that judgement aside and allowed the appellant’s appeal.