ASYLUM AND IMMIGRATION TRIBUNAL

SGC and others (EEA – Date of Decision – 1999 Act) Ireland [2005] UKAIT 00179	

THE IMMIGRATION ACTS

Heard at: Field House				Date of Hearing:  15 November 2005
                                                      Sent: 23 December 2005 

Before:

Mr C M G Ockelton (Deputy President)
Mr P R Lane (Senior Immigration Judge)
Professor A Grubb (Senior Immigration Judge)

Between

Appellants

and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant:		Mr M Gill QC instructed by Christine Lee & Co, Solicitors
For the Respondent: 	Mr P Deller, Home Office Presenting Officer

In an appeal under the Immigration and Asylum Act 1999 against an EEA decision made under the EEA Regulations 2000, section 77(4) of the 1999 Act applies and an adjudicator or immigration judge is required to allow or dismiss the appeal on the basis of the facts as at the date of the Secretary of State’s decision and not at the date of the hearing.

DETERMINATION AND REASONS

1.	The four appellants in these appeals are a family of Chinese ethnicity who live in the United Kingdom.  The first appellant was born on 15 July 2002 in Dublin and is, therefore, a citizen of the Republic of Ireland.  The second appellant is his sister who was born in the UK on 2 July 2001 but is a citizen of the People’s Republic of China.  The third and fourth appellants are respectively the father and mother of the first and second appellants.  They are both citizens of the People’s Republic of China. 

2.	The third appellant, [    ] came to the United Kingdom in 1997 and unsuccessfully claimed asylum.  At some point, the fourth appellant, [    ] came to the UK and also unsuccessfully claimed asylum.  They married in November 1999.  Despite their status, or lack of it, neither appellant was restricted from engaging employment and between them, they own and operate two food takeaway businesses in Calne, Wiltshire where the family lives in accommodation which they lease.  

3.	On 24 October 2002, following the birth of the first appellant, representatives acting on behalf of the four appellants applied to the Secretary of State for a residence permit for the first appellant and residence documents for the other three appellants.  It was said on their behalf that the first appellant, an EU national because he was an Irish citizen, was exercising his EU free movement rights in the UK and, as a result, both he and his family were entitled to remain in the UK.   On 10 December 2002, the Secretary of State refused their applications.  He did not accept that the first appellant was exercising an EU right in the UK and was, therefore, a “qualified person” within the Immigration (European Economic Area) Regulations 2000, SI 2000/2326 (hereafter “the EEA Regulations 2000”) and thus also that the other appellants were “family members” of a “qualified person”.

4.	In a determination promulgated on 3 December 2004 an adjudicator, Mr R R Hopkins dismissed the four appellants’ appeals.  The appellants sought and were granted permission to appeal to the Immigration Appeal Tribunal in March 2005; that grant now takes effect as an order for reconsideration before the Asylum and Immigration Tribunal under the transitional provisions and is restricted, by virtue of rule 62(7) of the Procedure Rules, to the ground upon which leave was granted.

The EEA Regulations 2000 

5.	It is not necessary for us to set out in detail the terms of the EEA Regulations 2000 which apply to these appeals.  In summary, regulation 15(1) entitles, on proof of certain matters, the first appellant to a residence permit as an EEA national if he is a “qualified person”.  If he is so entitled, regulation 15(2) (read with the ECJ’s decision in Chen and Zhu (Case C-200/02) [2004] Imm AR 754) entitles the other appellants as his “family members” to residence documents on the same basis.  There is no doubt that the first appellant is an EEA national.  The only question is whether he is a “qualified person” within the EEA Regulations.

6.	The adjudicator rejected the appellants’ case that the first appellant was exercising an EU right (and thus a “qualified person”) as he was not in receipt of services or was a student.  We say no more about this because Mr Manjit Gill QC, who appeared on behalf of the appellants, no longer placed any reliance on this aspect of the case as original put to the adjudicator.  However, the adjudicator held that the first appellant could, in principle, rely on his EU right of free movement under Article 18, EC Treaty and Council Directive 90/364/EEC if he was a ‘self-sufficient’ person.  

7.	The EEA Regulations 2000 give effect to these EU provisions, regulation 5(1) of which defines a “qualified person” to include:

“(e) a self-sufficient person; …”.

8.	Regulation 3(e) states that a “self-sufficient person means a person who

“(i) has sufficient resources to avoid his becoming a burden on the social assistance system in the United Kingdom; and
(ii) is covered by sickness insurance in respect of all risks in the United Kingdom; …”.
 
9.	The adjudicator accepted that the family’s resources and financial situation were such that the first appellant (and indeed the whole family) would not require them to resort to support from public funds (para [29]).  However, he concluded that at the date of the Secretary of State’s decision the first appellant and his family were not covered by sickness, i.e medical, insurance.  Their BUPA membership was dated 27 October 2004: which post-dated the Secretary of State’s decision.  Thus, the first appellant was not a “qualified person” within the EEA Regulations 2000 exercising treaty rights as a ‘self-sufficient’ person at the date of the Secretary of State’s decision although he was by the date of the hearing.  In paragraphs [23] to [26] of his determination, the adjudicator concluded that he was required to assess the facts at the date of decision and so he dismissed the appeals.

10.	It is this final matter which is the sole basis for the reconsideration.  The facts are not disputed.  It is now accepted that if the adjudicator erred in law because he should have assessed the facts as at the date of the hearing, the appellants are entitled to succeed; otherwise the adjudicator’s decision is unassailable.  We turn, therefore, to consider that issue in the context of the statutory appeal framework

The appeal framework

11.	The Secretary of State’s decisions in this case were taken on 10 December 2002 and hence the appeal framework is to be found in the Immigration and Asylum Act 1999 and the EEA Regulations 2000 as in force at that time. 

12.	Part VII of the EEA Regulations 2000 governs appeals against EEA decisions.  Regulation 29(1) provides for the appeal and regulation 29(3), for these purposes, states that the appeal is to an adjudicator.  The appeal provisions are made pursuant to the power in section 80 of the Immigration and Asylum Act 1999.  In paragraph [24] of his determination, the adjudicator concluded that neither the EEA Regulations 2000 nor section 80 assisted him in deciding whether he should assess the facts at the date of the Secretary of State’s decisions or at the date of hearing.  Mr Gill appeared to be of much the same view when he addressed the Tribunal.  Both are mistaken.

13.	We deal first with the EEA Regulations 2000.  Regulation 29(4) states that:

“Schedule 4 to the 1999 Act (appeals), to the extent (and with the modifications) set out in Schedule 2 to these Regulations, has effect in relation to appeals to the adjudicator under these Regulations.”

14.	When one turns to Schedule 2 to the Regulations, we see that parts of Schedule 4 to the 1999 Act are to apply to EEA appeals, in particular paragraph 2 of Schedule 4 states that “paragraphs 21 to 23” of Schedule 4 to the 1999 Act shall apply.  For these purposes paragraph 21 is the important one.  It provides, so far as relevant, as follows:
“Determination of Appeals

21(1) On an appeal to him under Part IV, an adjudicator must allow the appeal if he considers – 
(a) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case, or 
(b) ….

but otherwise must dismiss the appeal.”

15.	We pointed out this statutory provision to Mr Gill at the hearing.  He seemed to be unaware of its existence or, at least, of its application to these appeals.  By virtue of regulation 29(4), it is clearly applicable.  The statutory provision is phrased in the past tense: “was not in accordance with the law” (our emphasis).  The Tribunal reminded Mr Gill that it was the equivalent words in section 19(1) of the Immigration Act 1971 which led the courts, perhaps most prominently the Court of Appeal in R v Immigration Appeal Tribunal, ex parte Kotecha [1983] 2 All ER 289, to decide that in appeals governed by the 1971 Act, adjudicators were required to assess the facts as at the date of the immigration decision.  It is true that in Sandralingham and Ravichandran [1996] Imm AR 97 the Court of Appeal held that in asylum cases the general (past tense) wording of section 19(1) had to give way to the particular (forward looking) wording of section 8 of the Asylum and Immigration Appeals Act 1993 in asylum appeals.  However, there are no contrary specific provisions applicable here, for example to be found in the EEA Regulations 2000 themselves.  Indeed, the 1999 Act has specific provisions which parallel the interpretation in Kotecha.

16.	We now turn to consider those provisions.  A further statutory provision is highly relevant to the disposal of these appeals.  Section 80 of the 1999 Act deals with appeals against EEA decisions.  Whilst much of it relates to the scope of the Secretary of State’s power to make regulations in respect of appeals in EEA cases, section 80(9) goes further.  We did not have the benefit of submissions upon it as, inexplicably, it was not drawn to our attention at the hearing.  Section 80(9) states that in appeals against EEA decisions:

“(9) Part IV [of the 1999 Act] has effect subject to any regulations made under this section.”

17.	Part IV of the 1999 Act contains the statutory provisions regulating in general appeals to adjudicators and the (former) IAT.  Contained within Part IV is section 77 and, in particular, sections 77(3) and (4) which provide as follows:

“(3) In considering – 
	(a) any ground mentioned in section 69, or
	(b) any question relating to the appellant’s rights under Article 3 of the Human Rights Convention
the appellate authority may take into account any evidence which it considers to be relevant to the appeal (including evidence about matters arising after the date on which the decision appealed against was taken).

(4) In considering any other ground, the appellate authority may take into account only evidence – 
	(a) which was available to the Secretary of State at the time when the decision appealed against was taken; or
	(b) which relates to relevant facts as at that date.”  

18.	The combined effect of section 77(3) and (4) is well recognised within this jurisdiction.   In determining appeals on asylum or human rights grounds which are governed by the 1999 Act, adjudicators (or immigration judges) are required to look at the facts as at the date of the hearing (s72(3) as interpreted in SK* [2002] UKIAT 05613).  By contrast, in all other appeals, adjudicators (or immigration judges) must look to the facts at the date of decision (s77(4)).  The contrast is clear: the nature of the “grounds” relied upon to challenge the immigration decision dictate the date the adjudicator (or immigration judge) must focus upon in determining the facts.  

19.	Section 77(3) and (4) is, by virtue of section 80(9) of the 1999 Act, applicable in appeals against EEA decisions under the EEA Regulations 2000.  Reliance upon EU rights – which is the basis of these appellants’ cases – do not fall within section 77(3) and so are, on the face of it, covered by section 77(4) and the adjudicator is required to find the facts as at the date of the Secretary of State’s decision.

20.	Mr Gill sought to counter what might seem to be the inevitable outcome of applying paragraph 21(1) of Schedule 4 to the 1999 Act (and had he contemplated it section 77(4) also) by submitting that it did not apply here because EU rights were at stake.  We, of course, recognise that English law must be interpreted consistently with directly applicable EU law and ultimately must give way to it when that EU law contradicts our own domestic law.  We do not cite here, nor require citation to us, of authority for that broad approach which is undeniable.   Mr Gill referred us to the ECJ decision in Mark & Spencer v Customs and Excise Commissioners (Case C-62/00) [2003] 2 WLR 665.  He principally relied upon ‘the principle of effectiveness’.  In a passage, to which we were referred, the ECJ sets out in summary the relevant EU principles (at para [34]):

“34 … it is for the domestic legal system of each member state to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from Community law, provided, first that such rules are not less favourable than those governing similar domestic actions (the principle of equivalence) and, secondly, that they do not render virtually impossible or excessively difficult the exercise of rights conferred by Community law (the principle of effectiveness) …”.

21.	The facts of that case are far removed from the present and need not detain us.  The principles spelt out are, however, those we understand Mr Gill to rely upon in these appeals.  Mr Gill submitted that unless we adopt a date of hearing rule, appellants (including these appellants) who rely upon their EU rights will be denied them.  We do not agree.   Whichever rule is adopted, an adjudicator (or immigration judge) is simply deciding whether the Secretary of State’s decision not to recognise the appellant’s EU rights was correct at the relevant time – whether then or now.  The argument, in effect, confuses the role of the Secretary of State who holds the executive power to recognise an individual’s rights and the role of the appellate system which is to correct errors by him.  Even if the appeal decision is adverse to an appellant, that judicial decision does not foreclose a further application by the individual to the Secretary of State on the basis that the evidence now shows that he has a right to remain on the basis of an EU right.  It is difficult to see how the principle of effectiveness could be said to be transgressed when, on the case as put by Mr Gill, at any time since they obtained medical insurance effective from 27 October 2004 (and therefore prior to the hearing before the adjudicator), the claimants could have obtained the relief they now seek by direct application to the Secretary of State.  That being so, we do not see how adopting a date of decision rule “renders virtually impossible or excessively difficult the exercise of rights conferred by Community law”.

22.	Turning to the other principle, namely that of “equivalence”, we understood Mr Gill to argue that it was breached because an appellant’s EU rights were not assessed on the same basis as an individual’s human rights which, by virtue of section 77(3), were to be determined on the facts as at the date of hearing.  Although possessing a certain superficial attraction, we do not accept the argument.   As the Tribunal pointed out during the hearing, the issue of which date is taken as the correct one to ascertain the facts is essentially neutral in its impact.  It is neutral as between EEA cases and others in-country cases.  The equivalent claim to remain by a non-EEA national will be on the basis of the Immigration Rules or an applicable Home Office policy.  In such cases, the date of decision rule applies equally to EEA nationals and others alike.   Should an EEA national wish to raise human rights grounds to challenge the Secretary of State’s decision, he may do so and the legislation puts him on precisely the same evidential footing as any other individual.

23.	In the result, we reject Mr Gill’s submissions.  We see no reason not to apply the clear and unequivocal legislative provisions in the 1999 Act to appeals against EEA decisions.  In an appeal under the Immigration and Asylum Act 1999 against an EEA decision made under the EEA Regulations 2000, section 77(4) of the 1999 Act applies and an adjudicator or immigration judge is required to determine the facts as at the date of the Secretary of State’s decision and not at the date of the hearing.

24.	The proper course for these appellants is to make fresh applications to the Secretary of State based upon the facts as they are said to be at the date of any such application.

25.	For completeness, we note that the position is different for appeals against EEA decisions governed by the Nationality, Immigration and Asylum Act 2002 where the Secretary of State’s decision was taken on, or after, 1 April 2003.  Regulation 29(7) and Schedule 2 to the Regulations in their current version apply section 85(4) and (5) of the 2002 Act to EEA appeals.  At least for in-country appeals, section 85(4) makes clear that the Tribunal must consider all relevant evidence including matters arising after the date of decision and thus must determine the facts as at the date of hearing (LS (Post-decision evidence; direction; appealability) Gambia [2005] UKAIT 00085).  

Decision

26.	For these reasons, we conclude that the Adjudicator did not make a material error of law and his decision dismissing the appeals must stand. 

PROFESSOR A GRUBB
SENIOR IMMIGRATION JUDGE

          Date: