Saeed v SSHD, Court of Appeal - Administrative Court, July 05, 2018, [2018] EWHC 1707 (Admin)

Resolution Date:July 05, 2018
Issuing Organization:Administrative Court
Actores:Saeed v SSHD
 
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Neutral Citation Number: [2018] EWHC 1707 (Admin)

Case No: CO/5054/2017

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 05/07/2018

Before:

THE HON. MR JUSTICE LANE

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Between:

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Manjit Gill QC (instructed by Messrs Thompson & Co Solicitors) for the Claimant

Carine Patry (instructed by The Government Legal Department) for the Defendant

Hearing date: 14 June 2018

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Mr Justice Lane:

  1. The claimant, a citizen of Pakistan, arrived in the United Kingdom in August 2011 as a student. Further leave was given in that capacity until 3 November 2015.

  2. On 24 November 2015, the claimant applied for leave to remain outside the Immigration Rules as a carer. On 21 February 2016, the defendant granted the application by conferring leave to remain for three months.

  3. On 15 February 2017, the claimant submitted an application for a derivative residence card, on the basis that he was a person with a derivative right of residence under Article 20 of the Treaty on the Functioning of the European Union, as interpreted in the case of Ruiz Zambrano [2012] QB 265. Zambrano held that a refusal to grant a third country national a right of residence or a work permit, where the third country national was the carer of his or her dependent children, who were EU citizens, would be to deprive the children of the genuine enjoyment of a substance of their rights as EU citizens, since it would lead to a situation where those children would have to leave the territory of the Member State in question in order to accompany the third country national parent.

  4. On 17 May 2017, the claimant's Zambrano application was refused by the defendant.

  5. The defendant has responded to the case of Zambrano and other cases of the CJEU on the same subject by making provision in what are now the Immigration (European Economic Area) Regulations 2016 in relation to derivative rights to reside.

  6. Regulation 16 provides as follows:

    ``Derivative right to reside

  7. --(1) A person has a derivative right to reside during any period in which the person--

    (a) is not an exempt person; and

    (b) satisfies each of the criteria in one or more of paragraphs (2) to (6).

    (2) The criteria in this paragraph are that--

    (a) the person is the primary carer of an EEA national; and

    (b) the EEA national--

    (i) is under the age of 18;

    (ii) resides in the United Kingdom as a self-sufficient person; and

    (iii) would be unable to remain in the United Kingdom if the person left the United Kingdom for an indefinite period.

    (3) The criteria in this paragraph are that--

    (a) any of the person's parents (``PP'') is an EEA national who resides or has resided in the United Kingdom;

    (b) both the person and PP reside or have resided in the United Kingdom at the same time, and during such a period of residence, PP has been a worker in the United Kingdom; and

    (c) the person is in education in the United Kingdom.

    (4) The criteria in this paragraph are that--

    (a) the person is the primary carer of a person satisfying the criteria in paragraph

    (3) (``PPP''); and

    (b) PPP would be unable to continue to be educated in the United Kingdom if the person left the United Kingdom for an indefinite period.

    (5) The criteria in this paragraph are that--

    (a) the person is the primary carer of a British citizen (``BC'');

    (b) BC is residing in the United Kingdom; and

    (c) BC would be unable to reside in the United Kingdom or in another EEA State if the person left the United Kingdom for an indefinite period.

    (6) The criteria in this paragraph are that--

    (a) the person is under the age of 18;

    (b) the person does not have leave to enter, or remain in, the United Kingdom under the 1971 Act;

    (c) the person's primary carer is entitled to a derivative right to reside in the United Kingdom under paragraph (2), (4) or (5); and

    (d) the primary carer would be prevented from residing in the United Kingdom if the person left the United Kingdom for an indefinite period.

    (7) In this regulation--

    (a) ``education'' excludes nursery education but does not exclude education received before the compulsory school age where that education is equivalent to the education received at or after the compulsory school age;

    (b) ``worker'' does not include a jobseeker or a person treated as a worker under regulation 6(2);

    (c) an ``exempt person'' is a person--

    (i) who has a right to reside under another provision of these Regulations;

    (ii) who has the right of abode under section 2 of the 1971 Act(1);

    (iii) to whom section 8 of the 1971 Act(2), or an order made under subsection (2) of that section(3), applies; or

    (iv) who has indefinite leave to enter or remain in the United Kingdom.

    (8) A person is the ``primary carer'' of another person (``AP'') if--

    (a) the person is a direct relative or a legal guardian of AP; and

    (b) either--

    (i) the person has primary responsibility for AP's care; or

    (ii) shares equally the responsibility for AP's care with one other person who is not an exempt person.

    (9) In paragraph (2)(b)(iii), (4)(b) or (5)(c), if the role of primary carer is shared with another person in accordance with paragraph (8)(b)(ii), the words ``the person'' are to be read as ``both primary carers''.

    (10) Paragraph (9) does not apply if the person with whom care responsibility is shared acquired a derivative right to reside in the United Kingdom as a result of this regulation prior to the other person's assumption of equal care responsibility.

    (11) A person is not be regarded as having responsibility for another person's care for the purpose of paragraph (8) on the sole basis of a financial contribution towards that person's care.

    (12) A person does not have a derivative right to reside where the Secretary of State or an immigration officer has made a decision under regulation 23(6)(b), 24(1), 25(1), 26(3) or 31(1), unless that decision is set aside or otherwise no longer has effect.''

  8. Regulation 21(1) to (4) provide as follows:

    ``21.--(1) An application for documentation under this Part, or for an EEA family permit under regulation 12, must be made-- ''

    (a) online, submitted electronically using the relevant pages of www.gov.uk; or

    (b) by post or in person, using the relevant application form specified by the Secretary of State on www.gov.uk.

    (2) All applications must--

    (a) be accompanied or joined by the evidence or proof required by this Part or regulation 12, as the case may be, as well as that required by paragraph (5), within the time specified by the Secretary of State on www.gov.uk; and

    (b) be complete.

    (3) An application for a residence card or a derivative residence card must be submitted while the applicant is in the United Kingdom.

    (4) When an application is submitted otherwise than in accordance with the requirements in this regulation, it is invalid.''

  9. The 2016 Regulations do not define what is meant by a ``direct relative''. Guidance on the defendant's approach to the issue of direct relatives is, however, to be found in ``Free Movement Rights: derivative rights of residence''. (Version 3.0), published by the Home Office on 11 April 2017. There we find the following:-

    ``Direct Relatives

    There is no definition of ``direct relative'' within the regulations. However, for the purposes of assessing a direct relative for derivative rights, this includes the following:

    parents

    grandparents

    spouse or civil partner (for example, in the case of adult British citizens)

    children

    grandchildren

    siblings

    The applicant must provide evidence to confirm such a relationship. For example, a wife who is the primary carer of her British citizen husband who is applying in line with Zambrano judgment, must submit a valid marriage certificate as evidence of the relationship. A parent applying as the primary carer of a European Economic Area (EEA) self-sufficient child, in line with the Chen judgment must submit a birth certificate showing them as the parent of the British Citizen child''.

  10. The defendant's letter of 17 May 2017 stated that the claimant had ``not provided adequate evidence that you are the direct relative or legal guardian of a British Citizen''. Reference was then made to the examples set out in the Home Office Guidance. We then see the following:-

    ``You claim your sponsor Mr Teyyeb Hussain, is your uncle. You...

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