For those unfamiliar with the procedure, an Opinion precedes a judgment and the judgment usually follows the Opinion, at least in outcome if not in reasons.

The Advocate General advocates a middle ground position in terms of the obligation imposed on Member States by Article 3(2) of the Directive, but suggests that the Article must impose some sort of binding obligation and is not merely permissive:

In the minds of those who drafted it, that provision was therefore certainly conceived as a provision not in the order of wishful thinking, but, on the contrary, as a provision binding on the Member States, whatever the extent of the latitude which they are allowed … I accordingly take the view that Article 3(2) of Directive 2004/38 does not merely offer the Member States a possibility, but imposes on them an actual obligation to adopt the measures necessary to facilitate entry and residence for persons coming within the scope of that provision. The substance and precise scope of that obligation still remain to be determined.

On the question of whether the obligation is a procedural one of simply offering ‘extensive examination’ of an application or whether there is a presumption of admission, Bot prefers the procedural approach:

I do not share the view taken by the AIRE Centre to the effect that other family members benefit from a presumption of admission. First of all, the requirement of a dependency on the Union citizen laid down by Article 3(2)(a) of Directive 2004/38 seems to me to constitute, not a presumption, but a precondition for the applicability of that provision. Second, recognition of a presumption of admission stemming directly from that directive appears to me to be at variance with the reference to the law of the Member States for the purpose of defining the conditions for obtaining the right of entry and residence implied by the clause ‘in accordance with its national legislation’.

He goes on to argue that the Article permits Member States ‘enormous latitude’ and requires ‘only a certain degree of harmonisation by means of a measure containing only minimum requirements’. Nevertheless, ‘[t]his does not mean that Member States have unfettered freedom to facilitate, as they wish, entry and residence for persons coming within the scope of that provision.’

More positively, Bot suggests that additional qualifying criteria beyond those stated in the Article cannot be imposed, such as a requirement of a registered partnership or relationship akin to marriage in respect of a ‘durable relationship’. Later in the Opinion he also states that the additional imposition of a requirement of compatibility with national legislative provisions is incompatible with the Directive and that the Directive may be relied on as being directly effective.

Bot goes on to endorse the Metock approach to regularisation of illegal status within the territory, a point already conceded by the UK Government in the Bigia [2009] EWCA Civ 79 case.

He considers the ramifications of Zambrano, McCarthy and Dereci and the notion of EU Citizenship, concluding:

The combination of the right of residence attached to Union citizenship and protection of private and family life, as implemented by EU law, may therefore effectively establish a right of residence for members of the family of the Union citizen … I conclude that the fundamental right to private and family life may, in principle, be relied on by all categories of persons mentioned in Article 3(2) of Directive 2004/38.

That is not to say that such cases must succeed on this basis, but that residence must not be refused ‘where such refusal has the effect of unjustifiably impeding the exercise of the right of the Union citizen concerned to move and reside freely within the territory of the Member States or causes a disproportionate impairment of his right to respect for private and family life.’

On the question of whether dependents or members of household need establish immediate prior shared residence in another EU Member State, Bot opines thus:

Whilst it would seem self-evident that family members who declare themselves to be members of the household of a Union citizen must prove that they reside with the Union citizen, and thus necessarily in the same State, I take the view, conversely, that ‘dependent’ family members cannot be excluded from the scope of Article 3(2)(a) of Directive 2004/38 on the ground that they have not resided in the same State as the Union citizen whom they wish to accompany or join. This view is based on reasons relating to the wording of the provisions of the directive and its purpose, and to the case-law of the Court.

He accepts that there must be dependency in the state of origin but goes on to suggest that it is also impermissible to require that the dependency be recent:

Nor does there appear to be anything to justify a requirement that the situation of dependency must have existed shortly before the Union citizen moved to the host Member State, when the relevant criterion is the time at which the application for entry and residence is made. If the dependency existed at the time of settlement in the host Member State, but has been interrupted since then, the condition laid down by Article 3(2) of Directive 2004/38 will not be satisfied. If, on the other hand, the situation of dependency arises after the Union citizen enters the host Member State, the family member may be regarded as being ‘dependent’. This could be the case, for example, for a Union citizen who, after exercising his right of free movement, is required to care for a nephew whose parents have recently died.

Finally, Bot accepts that national legislation may set criteria for issues such as dependency:

I take the view that Article 3(2)(a) of Directive 2004/38 does not preclude national legislation which makes entry and residence for a national of a non-member country subject to conditions as to the nature or duration of dependency, provided that those conditions pursue a legitimate objective, are appropriate for securing the attainment of that objective and do not go beyond what is necessary to attain it.

Personally I find this final conclusion impossible to reconcile with the earlier conclusion that, for example, it is not permissible further to define or restrict the term ‘durable relationship’, but perhaps I am missing something.

The immigration tribunal and the courts have until recently taken a hardcore conservative line on other family members, and it looks like they were wrong to do so. Things have moved on though, and the most recent cases on this subject, Moneke and others (EEA – OFMs) Nigeria [2011] UKUT 341 (IAC) and Dauhoo (EEA Regulations – reg 8(2)) [2012] UKUT 79 (IAC), seem to be pretty much consistent with Bot’s Opinion.

It would be refreshing to live to see the tribunal erring on the side of liberality.

The excellent team in GS (India), Declan O’Callaghan and Natalie Lieven QC of Landmark Chambers instructed by Jasvir Jutla & Co, all acting pro bono as I understand it, appealed the tribunal’s decision and the case has now been remitted by the Court of Appeal to the Upper Tribunal by consent with the Home Office. It would follow that the reported case of GS (India) should no longer be followed. The Consent Order can be found here.

The case now seems to be going forward in the Upper Tribunal to consider the legal test in N v UK against the specific medical issues thrown up by removal of a patient dependent on dialysis to sustain life. A very senior panel that includes the President is apparently being put together for the case.

For what it is worth I recently had a similar success story in another medical treatment case working with Sriharans Solicitors and led by Raza Husain QC. In this case the original immigration judge allowed the appeal on Article 3 grounds, it was overturned on appeal by a Deputy in the Upper Tribunal, we appealed to the Court of Appeal and the Home Office has now agreed to restore the decision of the original judge, meaning that the client will be granted the leave to remain that will enable him to live.

These cases are worth fighting.

The justification is cost saving at both the Ministry of Justice and the Home Office. Appeal fees were introduced last December so increasing those would be another way of addressing that particular issue at the MOJ. Presenting Officers are like hen’s teeth at the moment and are never instructed for family visit appeals as far as I can ascertain, so fighting the appeals isn’t exactly costing a lot at the Home Office either.

In addition the Government proposes to curtail in-country appeal rights against decisions to vary a person’s leave where in the Home Office’s view it is not conducive to the public good for the person to have leave to enter or remain in the UK and to increase Immigration Officer powers yet further.

Those with long memories, or like me who read this recent Guardian article by Alan Travis, will remember that visitor appeal rights were last abolished by Ken Clarke under the last Conservative government back in the 1990s on the basis that they were not a matter of life or death The right of appeal was restored by Labour as a manifesto commitment.

Any lawyers serious about fighting this change should consider joining ILPA and contributing to the lobbying effort. But, despite Damien Green’s revolting comments about family visit appeals being “an absolute goldmine for immigration lawyers”, it won’t be the lawyers who suffer. This should do our judicial review practices no end of good, as an application for judicial review will be the only means by which a visit visa refusal can be challenged in future. It is ethnic minorities who will lose out as their relatives are denied visas to visit for weddings, funerals and other family events. Family is important to this Government, as long as your family isn’t foreign.

As I understand it, the nine Kuwaiti migrants were removed first. So were the people smugglers. Although it doesn’t actually explicitly say so anywhere in the press release. Indeed, Regional Director, Simon Walker at the UK Border Agency is quoted as saying

Immigration abuse will not be tolerated, and we will always take the strongest possible action against those involved.

This really is getting tough.

Already some cases involve extreme periods of administrative detention at the whim of a Government department equivalent to heavy criminal sentences for genuinely serious offences. R (on the application of Amougou -Mbarga) v Secretary of State for the Home Department [2012] EWHC 1081 (Admin), for example, involved immigration detention of four years and two days. The facts of that particular case were unusual, though, and it is an example of extreme use of deception rendering even an extraordinary period of detention lawful. Irwin J dismissed the claim:

The facts here are striking. This is not merely a case of a refusal to co-operate with removal. Against a backdrop of repeated criminal offending involving deception, this is a story of gross repeated deception perpetrated by the Claimant to avoid removal. That deception has been successful in the past in confusing the authorities and in defeating his deportation, as outlined above … The Claimant had lied so long and so successfully that the authorities were entitled to feel he might be attempting to deceive them again. There was an obvious risk that they might attempt once more to deport him to the Cameroon, only to find that he went through another volte face, denied he was Cameroonian and achieved another humiliating and expensive return to the UK.

In that context it seems to me, it was not merely reasonable but necessary to continue the detention of the Claimant until the authorities were clear they had documentation, evidence and arrangements in place which would ensure his effective removal.

The other cases to report here involve various different policy failings by the UK Border Agency, where a policy itself was unlawful or, more usually, where a lawful policy was overlooked or misapplied in some way. In some of these case the failing is found to be a material one without which the detainee would not have been detained but in others the failing would not have affected detention.

The most worrying of the cases is R (on the application of HA (Nigeria)) v Secretary of State for the Home Department [2012] EWHC 979 (Admin). In this case a man with mental health problems of sufficient severity to require his admission to a mental health hospital for compulsory treatment was detained for several months in ordinary immigration detention. Even before his immigration detention began there were serious concerns about his health as he refused food (under camera observation) for two weeks and was only drinking sips of water but from a flushed toilet bowl. He was then moved within immigration detention five times in a few weeks, which must have been unsettling in itself. His medical notes were not transferred with him and although concerns were regularly expressed about his welfare and behaviour it was only after several months of immigration detention that a proper psychiatric assessment was conducted, at which point the doctor thought it likely that the man was suffering from a psychotic illness and recommended treatment. Finally, over five months after this assessment, he was transferred to hospital for treatment. By this time he was expressing paranoid delusions, was self-neglecting, had bizarre behaviour with persecutory delusions, would not eat in the dining room, would only eat bread and milk for fear of being poisoned and slept on the floor because of his fears. He was eventually diagnosed as suffering paranoid schizophrenia.

Despite proactive steps by his lawyers and doctors, the claimant was then re-detained under immigration powers with no notice. Bail was eventually granted by a High Court judge.

Singh J found that the period of detention after the proper psychiatric assessment was unlawful and indeed the Home Office did not seriously attempt to contend otherwise. The second period of re-detention was also found unlawful. The judge also concluded that the claimant had suffered degrading treatment (a breach of Article 3 of the European Convention on Human Rights), that the detention policy on those with mental illnesses had been unlawfully changed without a proper equality impact assessment as required by law and that the policy had not been applied in the claimant’s case.

A finding of a breach of Article 3 ECHR is unusual, but it certainly appears justified on the facts of this case. A worrying lack of regard for the detainee’s welfare emerges from the UKBA records, where his non-compliance with procedures was treated as a further reason to justify detention rather than raising concerns about his wellbeing.

In the case of R (on the application of Abdollahi) v Secretary of State for the Home Department [2012] EWHC 878 (Admin) Beatson J rejected the claimant’s submissions that his 26 month detention was unlawful because of his pending asylum case and the presence of his wife and children in the UK. It was argued that there was no real risk of absconding nor a real prospect of removal. Like in Amougou -Mbarga, though, there were some unusual circumstances. The claimant had already made voluntary departures from the UK twice in previous years but had re-entered, had managed to obtain false passports for himself and his family and was insisting he would not return to Iran. The judge found that the statutory duty to have regard to the safety and welfare of children had not been properly applied in this case and the Office of the Children’s Champion within the UK Border Agency had not been consulted, in breach of policy, but that had this happened it would have made no difference and the claimant would have ben detained anyway. The detention was found unlawful but only nominal damages were to be awarded.

In contrast, in the case of R (on the application of Bizimana) v Secretary of State for the Home Department [2012] EWCA Civ 414 the Court of Appeal held that the proper application of the section 55 duty would have affected the outcome. The claimant was detained under immigration powers for 21 months. Throughout this period his wife and children were lawfully resident in the UK. Jackson LJ held that the coming into force of section 55 in late 2009 combined with the increasingly obvious difficulty in establishing the claimants nationality (Burundi, DRC and Tanzania were all possibilities) rendered the detention unreasonable for the final five months. The issue of remedies and damages was remitted to the Administrative Court.

Lastly, see David Rhys Jones’ excellent recent post on detention policy in torture cases. David’s post focusses on the important issue of how medical reports are to be understood and the weight to be attached to the opinion of a medical professional. The outcome of the case, R (on the application of AM) v Secretary of State for the Home Department [2012] EWCA Civ 521, was that the detention was found to be unlawful because the Secretary of State was in breach of her own policy on detention where there was independent evidence of torture. As an aside, the line taken by the Home Office in that case is reminiscent to my mind of that taken in cases of proving domestic violence. Any evidence that emanates from the survivor is rejected as being based on his or her account – but unless a reliable third person was present at the time of the violence, that approach eliminates almost any evidence at all from consideration. It is based on the unfortunate world view of some at the UK Border Agency, which is that victims of trauma are all lying liars who lie unless they can conclusively prove otherwise.

AM was unrepresented, her asylum application refused, her appeal lost and she was detained prior to removal. It looked pretty hopeless for her. Two medico-legal reports were nevertheless prepared by a registered nurse, working as clinical co-ordinator at the Helen Bamber Foundation, a fresh asylum claim was made and rejected and an application for judicial review followed.

The Secretary of State rejected the fresh claim and discounted the reports because of AM’s poor credibility. A High Court judge agreed: ‘It is clear …  that [the report writer] believed the claimant, taking everything she said at face value.’ He concluded that the fresh claim was a ‘try-on’. An appeal was then pursued to the Court of Appeal.

The ‘try on’ response to medical reports is seen all too often, but in this case the Court of Appeal held that conclusion to be wrong, even though the appellant was ‘totally lacking in credibility.’

The reports found AM to be

grossly traumatized … [but] … prone towards understatement and tends to require great encouragement to speak in a freely associative manner. However, once she begins to speak the content of her thoughts and feelings are intrinsically linked to her trauma.

A separate report by the same nurse practitioner documented nine areas of physical injury. One scar was “inconceivably caused by anything other than a blade or shard of glass,” yet the SoS rejected the report saying “… it is noted that the scars referred to in the report are slight and mainly restricted to the legs and there is no clear evidence that the scarring was obviously the result of torture or detention…” The Secretary of State also argued that “if [AM] had been detained and tortured as claimed, then the precise circumstances of these events would have been so searing as to have engraved” upon her memory.

It is difficult to explain how fundamentally misconceived this last piece of reasoning really is. Suffice it to say that it is totally at odds with all of the research and academic work on the impact of torture on memory, which actually suggests completely the opposite.

Giving the leading judgment of the Court of Appeal, Rix LJ disagreed that the nurse was merely taking everything AM said at face value:

[Her] reports constituted independent evidence of torture. [She] was an independent expert. … expressing her own independent views. … it is evident from her assessment that she believed that AM had suffered torture and rape and that those misfortunes had rendered her the “grossly traumatized” woman that she found her to be, with “feelings of deep and intense shame and self disgust”, “feelings of shame and stigmatization”, and a “fragile mental state”. Those findings are … interpretation of what she found, they are not the mere assertions of AM.

…[Her] belief was her own independent belief, even if it was in part based on AM’s account. … the judge was mistaken to suggest that such belief was merely as a result of ‘taking everything she said at face value’ … where the independent expert is applying the internationally recognised Istanbul Protocol… A requirement of “evidence” is not the same as a requirement of proof, conclusive or otherwise. Whether evidence amounts to proof, on any particular standard …  is a matter of weight and assessment.

Rix LJ’s analysis is extremely important to the way in which the immigration tribunal (and UKBA case owners) engage with medical reports because the error on which the first instance decision was overturned by the Court is one that is not infrequently detected in immigration tribunal determinations:

The only reason ultimately given by the judge for not accepting [the nurse's] reports as independent evidence of torture is contained in the last sentence of his para 24, where he said: “But the report did not provide independent evidence that the claimant had been tortured because that depended upon accepting the claimant’s account how they were caused” (emphasis added). If the judge was talking about [the nurse's]  belief, that was plainly independent evidence, even if it depended in part on formulating her opinion in the light of AM’s account. If, however, the judge was referring to the “acceptance” by the Secretary of State, that is neither a matter of evidence, nor is it independent, and the judge would be adding a new requirement, not mentioned in the Guidance, to qualify the Secretary of State’s policy.

It is perhaps time for the immigration tribunal to move on from the extreme cynicism towards expert evidence expressed in the early and rather primitive starred determination of AE and FE [2002] UKIAT 05237. A handful of experts may be suspect, but the vast majority are not and are fully aware of their duty to the court. Proper respect is owed to fellow professionals.

Y left China, was smuggled into Sweden and then stayed in an unknown country.  She was raped about twice a month by three Snakeheads.  She was then brought to the UK made to do housework and raped. Others were released when they paid their ‘debt’ but Y could not; she had lied to the Snakeheads.  Finally, an arrangement was made with a man called M who paid some money for her release.  She was not sold to M and had freedom to come and go.  She moved in with M and they are very happy together.

No exploitation

The Home Office argued that there was no commercial exploitation, no attempt to sell Y or to attempt to re-traffick her when she could not pay the debt.  In other words, there were no actions “for the purpose of exploitation.”  The judge rejected this as irrational:

…she was detained (“harboured” in the terms of the Convention definition) for a further six months during which she was forced to submit to sex and to work in the house without pay. The smuggling process had by then ended and the only reasonable conclusion is that the Snakeheads decided to use her by way of punishment or payment in kind. That means that she was being kept for the purpose of exploitation, and that is trafficking. The decision to the contrary cannot be supported.

The Home Office had also failed to address the period before entry to the UK and this failure also rendered the decision unlawful.

Still a victim of trafficking?

The decision letter also argued that as Y had had time for “reflection and recovery” she was no longer a victim of trafficking.  The Home Office’s supplementary guidance issued in 2009 looks at when a person “is” a victim.  Paragraph 9 states that,

… where a person’s circumstances do not require protection or assistance at the time of that assessment, the person is unlikely to be a victim…

Paragraph 10 considers whether:

the person was under the influence … of traffickers … [when] they came to your attention; whether the person requires a period to recover from the influence of traffickers; if the person has suffered physical or emotional wounds from the trafficking experience and requires time to recover.

Paragraph 18 concludes that it is possible to decide that someone “has been a victim …, but at the time their case is considered [but] that their specific circumstances do not [now] engage the Convention…”

The judge decided that this approach was wrong.   Paragraph 173 of the Convention’s Explanatory Notes, in relation to Article 13 states as follows:

One of the purposes of this period is to allow victims to recover and escape the influence of traffickers. A victim’s recovery implies, for example, healing of the wounds and recovery from any physical assault.  It also implies that victims have recovered a minimum of psychological stability.

Paragraph 183, in relation to Article 14 states:

for a victim to be granted a residence permit … the victim’s personal circumstances must be such that it would be unreasonable to compel them to leave the national territory …

Was Y was still a victim of trafficking at the time of decision?  Does the Convention bar the conclusion that victim status may cease or that it prevents a consideration of whether that status subsists at the Reasonable Grounds stage?  The judge concluded that this consideration of current circumstances and need for protection and assistance is intended to apply at the Reasonable Grounds, as well as at the Conclusive Decision stage. Article 4(e) defines a victim as someone who is subject to trafficking.  Article 10(2) refers to a person who has been a victim of trafficking to ensure that she receives the assistance provided for in Article 12 to assist victims in their physical, psychological and social recovery. He goes on to comment that the Home Office cannot know what particular measures are required to assist the victim without considering the extent of her physical, psychological or social recovery.   The recovery and reflection period required by Article 13 is triggered when there are Reasonable Grounds to believe that the person is a victim.  The differences in tense are explicable by different consequences: after the recovery and reflection period, the assistance and protection is not absolute or never-ending, but is limited to the need to assist victims in their physical, psychological and social recovery and must be tailored to their personal situation.

The Convention, far from prohibiting consideration of current circumstances at the Reasonable Grounds stage when those circumstances appear to have significantly changed (i.e. trafficking has become ‘historic’), requires consideration to take place in order to comply with the duties under Articles 12 and 14.

This matches with what we know about trauma: a person survives it but never returns to what they were.

All Theresa May has to do is mug Dr Who, steal the Tardis and go back in time a few short months to the border checks fiasco. Instead of hanging Brodie Clarke out to dry before he has even had a chance to explain himself in flagrant denial of anything resembling fair process and thereby sending a signal to her civil servants that they will be sacrificed in the blink of an eye if politically expedient to do so, she would stand by him, stand up to the unprincipled, opportunist Labour populists and tell the media that controlled, risk-based border checks are a legitimate and proportionate way of managing our borders and have been for time immemorial, including under the last Government. Instead of making a rod for her own back and saddling the country with an utterly unworkable system of border control just in time for a massive international sporting event to which quite a few people might apparently want to travel from abroad, she would lay the foundations for the re-establishment of some commonsense in immigration control after years of slide towards a stultified, box-ticking, bureaucratic disaster.

And that she takes it all back about The Cat, which was just a bit of party political nonsense.

Problem solved.

Or perhaps Theresa May is secretly a No Borders believer and this was all part of her cunning plan to make immigration control so self evidently preposterous and obnoxious to the holiday going classes that they will eventually clamour for its total abolition. In which case I have new found respect for our esteemed Home Secretary.

The Appellant applied in-time for further leave to remain as a Student (Tier 4) supplying his debit/credit card details as payment.  His application was rejected as invalid for non-payment and the standard rejection letter was sent out.  The Appellant re-submitted his application the day after but, by this time, his leave to remain had expired.  The application was then refused (without a right of appeal) due to the Appellant not being able to satisfy the ‘established presence’ requirement to qualify for the lower level of maintenance funds.

The Appellant maintained that he had held sufficient funds in his bank account at all times to cover the application fee and that he had provided the correct details on the payment sheet submitted in support of his application.  So far, a scenario I am sure we’re unfortunately all too familiar with.  Thankfully however, this Appellant was undeterred and instead of pursuing a Judicial Review claim, the Appellant lodged his notice of appeal to the First-Tier Tribunal anyway.  He raised the issue of jurisdiction as a preliminary matter and submitted that this should be determined on the basis of evidence and submissions at the hearing.

The FTT decided that there was no valid appeal as the Appellant’s application fee had not been paid (regardless of the reason why).  However, the FTT issued its decision after full consideration of the matter at a hearing and in the form of a determination in accordance with Practice Statement 3.4 rather than by means of a notice under the First-Tier Rule 9.  This is key as it permitted the Appellant to apply for permission to appeal to the Upper Tribunal and pursue the matter further as per Abiyat (Rights of Appeal) Iran [2011] UKUT 314 (IAC).  Had the FTT decision been made under the Rule 9 notice, the Upper Tribunal would not have had any jurisdiction and the only remedy available to the Appellant would have been Judicial Review.  [Incidentally, for an essential recap on the FTT and UT Practice Directions and Rules - see FM's previous post here.]

So the matter went before the Upper Tribunal and in deciding whether or not the FTT was right in declining jurisdiction, the following points were determined:

• The question of whether the first application was valid depends not upon whether the payment was successfully processed, but on whether the application was accompanied by the fee [Paragraphs 17 & 18].  This is based on a simple interpretation of the Immigration & Nationality (Fees) Regulations 2011 (2011 No 1055), which provide at Regulation 37:

Where an application to which these Regulations refer is to be accompanied by a specified fee, the application is not validly made unless it has been accompanied by that fee.

• The case of BE (Application Fee: Effect of Non-payment) [2008] UKAIT 00089 had already established in relation to the (virtually identical) 2007 Fees Regulations that an application is “accompanied by” a fee if it is:

… accompanied by such authorisation (of the applicant or other person purporting to pay) as will enable the respondent to receive the entire fee in question, without further recourse having to be made by the respondent to the payer.  [Paragraph 19]

Accordingly, the Upper Tribunal found that the FTT decision was wrong in its approach as the validity of the application is determined not by whether the fee is actually received but by whether the application is accompanied by a valid authorisation to obtain the entire fee that is available in the relevant bank account.   [Paragraph 20]

At paragraphs 22 & 23, the UT set out the UKBA’s process when it comes to fee payments in both postal and in-person applications and notes the vast differences in approach between the two.  Apparently, with postal applications, the applicant’s payment sheet is shredded (for security reasons) by the UKBA and if the fee cannot be collected, the rest of the application and supporting documents are returned to the applicant.  Further, no record is kept of what went wrong with the payment.

From this, the UT concluded that the best evidence of whether an application was accompanied by the fee would clearly be the original information page supplied by the Appellant and that the best evidence of why an attempt to process a payment failed would be the record kept by whoever processed the payment, i.e. the UKBA.  However, as is clear from the information set out above, both of these are items of evidence which cannot possibly be made available as they are either shredded at the time that the application is returned as invalid or not kept as a record!

Most importantly, the UT considered that the evidential burden as to whether an application was accompanied by the fee payment firmly rests with the UKBA [Paragraph 27]:

We reach this conclusion both by application of first principles – the party that asserts a fact should normally be the one who demonstrates it; and because the respondent is responsible for the procedure to be used in postal cases, and the features noted above prevent both the issue of a prompt receipt and an opportunity to understand why payment was not processed. An applicant is not present when an attempt to process payment is made, and has no way of later obtaining the relevant information. 

In this case, the UT found in the Appellant’s favour and also offered a number of recommendations in order to remedy what the UT thought might well be a substantively unfair system.  The UT did not have to consider the Appellant’s secondary submission, that the system treated him unfairly, but it stated that if measures of the type recommended at Paragraph 32 were not adopted, or cogent reasons as to why they cannot be adopted, this:

may well result in a determination that the consideration of the application has been unfair and therefore not in accordance with the law: see Naveed (student – fairness) [2012] UKUT 14 (IAC).  (see here for post on Naved)

Finally, we are reminded by this judgment of the power of the Tribunal to make directions against the UKBA for disclosure of any record kept on the issue of fee processing or any other information which might be deemed to assist the determination of such issues so it is also worth bearing this in mind when drafting the initial grounds of appeal.

The four issues highlighted are as follows:

1. The Free Movement Directive guarantees that non-EU family members of EU citizens who hold a valid residence card issued by one EU country can travel together with EU citizens within the European Union without an entry visa. The UK laws do not grant this important right which lies at the heart of free movement.
2. The United Kingdom does not allow extended family members of EU citizens to apply to have their residence in the UK considered under EU law when they were lawfully residing in the UK before the arrival to the UK of the EU citizen on whom they are dependent.
3. Under the Free Movement Directive, EU citizens who settle in another EU country but do not work there may be required to have sufficient resources and sickness insurance. The United Kingdom, however, does not consider entitlement to treatment by the UK public healthcare scheme (NHS) as sufficient. This breaches EU law.
4. Finally, the United Kingdom does not issue workers from Romania and Bulgaria during the first 12 months with the same residence documents as workers from other EU Member States. While EU law allows the United Kingdom to temporarily keep in place a work-permit scheme for workers from Bulgaria and Romania, those who have a work permit have the same right to reside as other EU workers and must be issued the corresponding residence documents.

All four of these points seem to be more a matter of realising and accessing rights than any substantive change in UK policy or practice. Basically, the UK has arguably thrown up additional procedural barriers to rights imparted by European law which the UK accepts are indeed imparted by European law. I once heard that the British are the third largest users of EU free movement rights to go and live in other EU states. I imagine (or at least hope) that the UK is pretty militant about the rights of UK citizens living in other EU countries, so it seems only fair that we properly respect the rights of EU citizens living here.

The first issue is that the UK requires a non-EU family member of an EU citizen to satisfy the UK’s domestic immigration rules in order to obtain a visa to enable travel to the UK. In fact the rules that apply are the more generous EU free movement rules. Such a person, usually referred to by lawyers as a ‘third country national’ (not being from the UK or an EU state) who does not meet the UK’s domestic rules but does meet EU free movement rules has a right to enter the UK but the UK’s implementation of the Directive makes it all but impossible to get on a plane to do so. This issue was the subject of judicial comment in the case of CO (EEA Regulations: family permit) Nigeria [2007] UKAIT 00070. The change demanded by the Commission would not affect anyone’s existing rights but it would affect whether they are able realistically to make use of those rights.

I’m actually not sure about the second issue. It may be to do with the difference in wording between Article 3(2) of the Citizens Directive and paragraph 8 of the UK’s domestic implementing regulations. The Commission may be making the point that Article 3(2) does not impose an explicit requirement of recent dependency abroad but that the UK’s regulations do. I haven’t actually managed to read it yet but the Opinion in the immigration tribunal’s reference to the European Court on this issue is now available.

The third issue originates in the differences between the way that state health care is provided in the UK and elsewhere in Europe. Everywhere else has a health insurance model, where the treatment is often paid for at the point of delivery but then reclaimed through the state’s health insurance scheme. The UK’s model of free-at-the-point-of-delivery through the National Health Service is unique. Unsurprisingly, therefore, European law, derived from laws that pre-existed UK membership, often requires a person to have health insurance in order to qualify for free movement rights. That makes little sense in the context of the UK, where we impose no such requirement on our own citizens. It looks like the Commission is therefore putting the case that an additional requirement to obtain private health insurance over and above entitlement to NHS health care (to which EU citizens are entitled anyway, just as we can reclaim expenses for treatment received in other EU states) is unlawful. This does not substantially change entitlement to claim NHS health care, though, as EU citizens are generally already entitled.

The fourth issue is only really one of documentation but the Commission’s point is that the rights are the same and therefore the documentation should be the same, presumably in case those with the same rights are treated differently by other parties because of differences in their documentation.

In some ways it looks like the UK is managing to make a mountain out of a molehill by failing to amend laws it knows are out of step with EU free movement rights. The Commission was bound to do something about it eventually.