Of Surinder Singh, McCarthy and exercise of treaty rights: Insufficient evidence defeats damages claim for breaches of EU law

The case of Benjamin & Anor, R (on the application of) v Secretary of State for the Home Department [2016] EWHC 1626 (Admin)  considers the Surinder Singh  principles,  both in the context of an entry clearance application for an EEA family permit as well as subsequent attempts  to  seek to assert a  right  of entry at port itself.

In Case C-370/90 R v Immigration Appeal Tribunal and Surinder Singh ex parte SSHD [1992] ECR I-4265, the CJEU held that where a national of one EU Member State exercises an EU law right to work or pursue self-employed activity in another EU Member State, she is entitled (on her return to her “home” Member State) to be joined or accompanied by a spouse who is a third-country national, on terms no more onerous than those that would apply if she were seeking to have her spouse join her in a Member State other than her home Member State.

Regulation 9 of the Immigration (European Economic Area) Regulations 2006 places the Surinder Singh principle on a legislative footing.

 

Basis of Challenge:

The Claimants, Mr Mark Benjamin( a British citizen) and Mrs  Margaret Benjamin, his spouse (a Kenyan national),  via  a judicial review claim  challenged the Defendant’s refusal to grant Mrs Benjamin an EEA family permit, on 15 November 2013, and entry clearance at Calais on 15 December 2013.  Reliance  was placed upon the Surinder Singh  principle  as  Mr and Mrs Benjamin had lived together in France from 2006  until September 2012 when Mr Benjamin moved to the UK for the sake of their eldest son’s education.

The judicial review claim arose out of protracted litigation, however the Secretary of State subsequently reviewed the case and decided to grant Mrs Benjamin an EEA family permit with effect from 17 July 2014 and she was permitted to enter and remain in the UK, and on 28 November 2014 she was granted a UK residence card, valid for 5 years.  It was therefore  only subsequently, during the course of the litigation, that Mr and Mrs Benjamin provided sufficient information to demonstrate that Mr Benjamin had been exercising EU Treaty rights in France, which in turn led to the Defendant’s review of the case, and the decision to grant Mrs Benjamin entry into the UK.

Although the Claimants had  achieved their primary objective – a grant of residence in the UK for Mrs Benjamin – they continued to seek quashing orders, declarations of unlawfulness, and Francovitch damages for breaches of EU law, in respect of the Defendant’s decisions to refuse Mrs Benjamin an EEA family permit on 15 November 2013, and to refuse her entry clearance at Calais on 15 and 27 December 2013.

The Claimants’ first ground of challenge against all three decisions was that the refusal to grant an EEA family permit to Mrs Benjamin, or to grant her entry clearance, was a breach of the Surinder Singh principle and regulation 9 of the 2006 Regulations. This first ground was concerned with Mrs Benjamin’s substantive right of entry to the UK.

The Claimants’ second ground of challenge, against the refusals to grant entry clearance on 15 and 27 December 2013, was that the Defendant was required under Community law to allow Mrs Benjamin entry to the UK upon production of a lawful residence card issued by a Member State. It was unlawful to require her to obtain a visa or to establish that she was exercising EU freedom of movement rights. The second ground was thus concerned with the procedural requirements for Mrs Benjamin’s entry to the UK. Article 5(2) of the Parent Directive provides that possession of the “valid residence card referred to in Article 10” exempts family members who are not nationals of an EU Member State from any requirement to hold an entry visa (or equivalent formality) when seeking leave to enter the territory of an EU Member State. In Case C-202/13 McCarthy v Secretary of State for the Home Department [2015] 2 CMLR 13, the CJEU held that, pursuant to Article 5, the third-country national spouse of a British citizen, who possessed a valid residence card under Article 10, could not lawfully be subjected to a requirement to apply for an EEA family permit (i.e. a visa) under regulation 11 in advance of entering the UK.

The Claimants’ third ground related only to the decision on 27 December 2013 when Mrs Benjamin arrived at Calais and was refused entry clearance. Both Claimants were interviewed and their case was considered by the Defendant’s immigration officials. The process took about 10 hours. The Claimants contended that the Defendant contravened a clear rule of EU law that decisions with regard to EU freedom of movement must be immediate or very prompt.

EEA Family Permit Application- Reliance up Surinder Singh Principle:

The parties had married in Kenya on 26 July 2006. They  lived together in France  from 2006  until September 2012 when Mr Benjamin moved to the UK.

In an application dated 27 September 2013, Mrs Benjamin applied for an EEA family permit with a view to settling in the UK as the family member of an EEA national, relying upon the Surinder Singh principle. She attended for interview in October 2013. She had also  submitted a French residence card issued in 2009 pursuant to Directive 2004/38/EC  which was valid for 10 years.

The application was refused by the entry clearance officer, in a decision dated 15 November 2013 on the basis that  the evidence submitted did  not indicate that  the EEA  spouse  had exercised his treaty rights whilst he was living in France. The entry clearance officer was not satisfied that Mrs Benjamin met all the requirements of Regulation 9 of the Immigration (European Economic Area) Regulations 2006.

The only documents listed by Mr Benjamin which related to employment were the SIRENE certificate which showed that he was registered on the “Register of Businesses & Institutions (SIRENE)” as having created a business in Information Technology in June 2008. He was required to be registered with URSSAF which is the “Recovery Union for Social Security and National Insurance contributions”. The URSSAF documents disclosed comprised two forms dated February 2010, describing him as an “Informaticien” (computing professional) and recording that his activity was registered as a “self-entrepreneur” from 1 January 2010.

These documents were proof that he had set himself up as a self-employed IT consultant in France. However, they did not evidence any actual activity by him. There were no tax returns, invoices, bank account statements, or any other evidence that he was working as an IT consultant and receiving an income.

Refusal of entry clearance on 15 and 27 December 2013- Reliance upon Surinder  Singh:

On 15 December 2013, Mrs Benjamin attempted to travel to the UK from Calais, with their daughter. She also took her passport and her residence card with her. She was asked to provide evidence of her entitlement to enter the UK as Mr Benjamin’s spouse. According to the Claimants, the immigration official advised her that she needed to provide originals of Mr Benjamin’s passport, their marriage certificate and the children’s birth certificates.

On 27 December 2013, Mrs Benjamin again attempted to enter the UK via Calais. She was accompanied by Mr Benjamin and they were both interviewed. It was noted that Mrs Benjamin had sought admission to the United Kingdom under EC law in accordance with regulation 11 and in particular regulation 9 of the  EEA Regulations 2006. Entry was refused on the  basis that the  immigration official  was not satisfied that Mr Benjamin was a qualified person in accordance with regulations 6 and 9.  It was considered that she was not the family member of an EEA national with a right to reside in the United Kingdom under those Regulations and that she  did  not therefore have a right to be admitted under regulation 11.  It was further noted that previous applications made by Mrs Benjamin  on the above grounds had been refused because the documentary evidence provided to the Entry Clearance Officer did not indicate that Mr Benjamin  exercised his treaty rights whilst he was living in France. Although Mrs Benjamin had  produced additional documentation,  this was however, not sufficient to justify overturning the previous decision or to admit  her under regulation 9. Mrs  Benjamin was  therefore refused  admission to the United Kingdom in accordance with Regulation 19.

The documentation which Mrs Benjamin produced on 27 December 2013 included the documents previously presented when they applied for an EEA family permit. Further documents were produced, including more correspondence with URSSAF; a letter from RSI dated January 2010 giving partial exemption from social security contributions; pay slips for 2 months work as a lorry driver in 2007 and tax assessments for the years 2007 to 2009.

It was noted that there was no evidence submitted that Mr Benjamin was exercising his Treaty Rights in France after 2010. Moreover at interview Mrs Benjamin was noted to have stated that her husband had been unemployed from the end of 2010 until he returned to the United Kingdom. This  was considered to directly contradict  what Mr Benjamin said in his interview which was that he had last worked in France in September 2012 as a full time computer programmer. Mr Benjamin was noted to have  been asked by  immigration officials  if he had any evidence to prove he worked in France from 2010 to which he said he had no paper evidence. There was no evidence that Mr Benjamin was exercising Treaty rights as at September 2012 or as at December 2013. It was confirmed that the French documents all pre-dated 2010.

(1)No breach of the Surinder Singh principle and regulation 9 of the 2006 Regulations:

• The Court agreed with the Defendant’s submission that the onus rested on the Claimants to establish that they were entitled to exercise a Surinder Singh right of residence.

• In the Court’s judgment, on the limited evidence provided by the Claimants, the Defendant was entitled to conclude that the Claimants had failed to discharge the onus upon them. In those circumstances, it was not unlawful for the Defendant to refuse the applications. It was considered that the Defendant’s officials gave the Claimants a reasonable opportunity to obtain the required documents and to proffer any other means of proof, as required under Article 5(4) of the Parent Directive and regulation 11(4) of the 2006 EEA Regulations.

• The fact that a subsequent application, supported by further evidence, was successful, did not render the earlier decisions unlawful. It was not entirely clear what information was available to the Defendant when she made her decision to grant an EEA family permit to Mrs Benjamin in July 2014, and reasons for the decision were not given. However, it was apparent that Mr Benjamin submitted substantially more material in support of his claim in the course of the judicial review claim in 2014 and in support of his application for interim relief as part of his appeal to the Court of Appeal. This material would have been available to the Defendant when she made her decision in July 2014, and she was by then satisfied that Mrs Benjamin met the conditions for entry to the UK.

• It was noted that Mr Benjamin sought to argue that that he was caring for his disabled son instead of working, but the Court stated that this was never endorsed by the French authorities and in the Court’s view, could not have come within the scope of Article 7(3) as presently drafted.

• It was further noted by the Court that as the Claimants correctly pointed out, in O & B v Minister voor Immigratie, Integratie en Asiel C-456/12 the CJEU Grand Chamber held that the principle extended to EU nationals and their family members who had acquired an extended or permanent right of residence in another Member State in accordance with the conditions in Articles 7 and 16 of the Directive. Therefore it was not limited to cases where such rights had been acquired through work in another Member State; it could also apply to those who had been financially self-sufficient. In the Court’s judgement however, O & B did not provide much assistance to the Claimants in their claim, since the basis of Mrs Benjamin’s applications was that Mr Benjamin had been exercising his Treaty rights by working, not that he was self-sufficient. Indeed, the evidence was that the Claimants were heavily reliant on state benefits from the French and UK authorities, and plainly were not self-sufficient. There was no evidence or assertion that the family had comprehensive health insurance, as required under Article 7(1)(b).

• The Court also considered that the judgment in O & B did not alter the onus of proof, and did not remove the Member State’s entitlement to require Surinder Singh applicants for entry to establish that they met the qualifying conditions of residence in either Article 7 or Article 16. The Claimants submitted that, since they had acquired the right of permanent residence under Article 16, they were no longer subject to the qualifying conditions in Article 7, so the Defendant was not entitled to require evidence that Mr Benjamin was working or self-sufficient. The Court stated however, that the CJEU held in O & B that Member States were not required to grant a derived right of residence to a third-country family member merely because he held a residence card.

• It was noted that as the CJEU made clear in Case C-202/13 McCarthy v Secretary of State for the Home Department [2015] 2 CMLR 13, UK immigration officials were entitled to examine the authenticity of residence permits, and the correctness of the data appearing on them, and to “verify whether a person seeking to enter its territory in fact fulfils the conditions for entry, including those provided for by EU law“.

• The right of permanent residence under Article 16 can only be acquired by a person who has fulfilled one or more of the qualifying conditions in Article 7 during the five year period of continuous residence otherwise he would not have been residing in the host state “legally“, within the meaning of Article 16(1). The onus was on the Claimants to show that they had genuinely acquired the right of residence under Article 16, by demonstrating that they had fulfilled the qualifying conditions for 5 years.

• The Court stated that Mr Benjamin produced very limited evidence of effective and genuine employment or self-employment. The Defendant’s officials were entitled to conclude on the evidence before them that Mr Benjamin had not demonstrated that he was pursuing effective and genuine self-employment in France. The evidence suggested that, although registered as self-employed, in reality, he was relying on the State and his father to support him and his family, whilst he dabbled in projects which interested him but were non-remunerative.

• Such evidence of employment and self-employment as there was indicated that the work in France had been intermittent and was carried out some years before the applications were made in 2013. There was only evidence of economic activity in France prior to 2010, not thereafter.

• The Court also noted that from 2010 until his departure for the UK in September 2012,Mr Benjamin was heavily involved in a property purchase and renovation project in Miami, USA. He spent a good deal of time living in the USA and his family also joined him for some of the time – his third child was born in Florida in 2011. He had been residing in the UK since September 2012. The Court stated that sufficient degree of proximity is required between the exercise of Treaty rights in another Member State and the EU national’s return to his home Member State in a Surinder Singh case. Regulation 9(2)(a) of the 2006 Regulations requires that the British citizen “is” residing in another Member State as a worker or self-employed person, or “was so residing before returning to the United Kingdom”. In OB v. Secretary of State for the Home Department [2010] UKUT 420, the Upper Tribunal held that, although Surinder Singh did not address the period of time between employment in the host country and the return to the state of origin, the case law did establish the principle that the right of entry should not be restrictively interpreted and Community law must be interpreted sufficiently broadly to promote the objective of ensuring protection for the family life of nationals of member states. There had to be some link between the exercise of the Treaty rights and the return of the spouse to the UK, but there was no requirement that employment in the host state had to be established immediately before the return to the state of origin. It would be a matter of assessment in the individual case.

• The Court stated that in this case, the Defendant’s immigration officials were entitled to conclude that the requirements of regulation 9, even when given a broad purposive interpretation, were not met. Even if he had ever engaged in genuine and effective employment or self-employment in France, the evidence indicated it ceased in 2010, a long time before the applications in 2013 and Mr Benjamin’s departure to the UK in September 2012. By December 2013, Mr Benjamin had not been residing in France for 15 months.

• The immigration officials were thus entitled to conclude, based on the evidence provided by the Claimants, that Mr Benjamin had not been engaging in genuine and effective employment or self-employment in France sufficiently recently to entitle him and his wife to a Surinder Singh right of residence in the UK.

(2)McCarthy Distinguished:

• The Court stated that on the facts in McCarthy, it was common ground that Mr McCarthy and his third-country national wife were beneficiaries of the Directive and were exercising their rights to free movement. McCarthy was therefore distinguishable from this case on its facts.

• While McCarthy establishes that it is unlawful for the Defendant to insist on the possession of an EEA family permit by a family member of a UK citizen seeking to enter the UK, where that family member holds a valid residence card under Article 10 of the Directive, it remains lawful for the Defendant to determine, before granting entry, whether the family member in question in fact fulfils the conditions for entry provided by EU law.

• The legal position as clarified in McCarthy is reflected in regulations 11(2)(a) and 19(2)(b) of the 2006 Regulations, which together make clear that the family member of an EEA national may be admitted to the UK on presentation of a valid passport and a “qualifying EEA State residence card“, but only provided that the EEA national has a “right to reside in the United Kingdom under these Regulations“. The relevant regulation in this case was regulation 9.

• The Court accepted the Defendant’s submission that the immigration officials at Calais were justified in investigating the validity of the Claimants’ claim that they had acquired a permanent right of residence in France, not least because of the equivocal residence cards which they produced. The card in Mr Benjamin’s name, dated 2009, did not indicate on its face that Mr Benjamin held a permanent right of residence pursuant to Article 16. It simply indicated that he was a beneficiary as a self-employed person. Mr Benjamin was unable to establish to the satisfaction of the immigration officials that he had met the Article 7 conditions of employment or self-employment for a period of 5 years in France, so as to become entitled to a right of permanent residence in France.

• Whilst Mrs Benjamin’s card referred to a “séjour permanent“, it was by no means clear from this that she had in fact obtained a permanent right of residence in France in accordance with Article 16 of the Directive. The card was issued on 6 July 2009, less than three years after Mrs Benjamin began living in France with Mr Benjamin. A family member’s permanent right of residence under Article 16(2) arises only after five years’ continuous legal residence with the Union citizen in the host Member State. This inevitably raised questions which required further investigation.

(3)No delay as complex Surinder  Singh  case required  investigation:

• The Claimants’ third ground related only to the decision on 27 December 2013 when Mrs Benjamin arrived at Calais and was refused entry clearance. Both Claimants were interviewed and their case was considered by the Defendant’s immigration officials. The process took about 10 hours. The Claimants contended that the Defendant contravened a clear rule of EU law that decisions with regard to EU freedom of movement must be immediate or very prompt.

• The Court noted that the only express reference to such a rule which the parties were able to find was regulation 12(4) of the 2006 Regulations which provides that an EEA family permit must be issued “as soon as possible“, reflecting the reference in Article 5(2) to visas being issued “as soon as possible and on the basis of an accelerated procedure“.

• The Court could not accept the Claimants’ submission that the Defendant’s officials acted in breach of EU law on 27 December 2013. On the Claimants’ arrival at the port, the immigration officers on duty that day were faced with a complex Surinder Singh claim which required investigation for a number of reasons. Mrs Benjamin had previously been refused entry to the UK and had been refused an EEA family permit. They conducted a detailed and comprehensive interview with both Claimants separately and considered the extensive documentary evidence that the Claimants had put forward. The authorisation of a Border Force Senior Officer was sought for the decision reached by a more junior official.

• In the Court’s judgment, the time taken was not unreasonable and was not unlawful.

Conclusion

To avoid prolonged and seeming unnecessary litigation, the case of Benjamin highlights the need to  ensure that  appropriate, relevant and adequate  documentation is  submitted in a right of residence claim  seeking to place reliance upon  the principles in Surinder Singh( or indeed any other aspect of the 2006 EEA Regulations).

The mere presentation of a residence card  issued by another EEA  member state does not automatically mean that the requirements  of the  parent Directive  and EAA Regulation are  met. The entry clearance  officer and the  home office therefore seem  entitled  in the consideration of  EEA  family permit or residence  card applications,  to conduct  investigation  and  refuse a right of entry or residence where the core documents in relation to the  exercise of treaty rights in  the relevant EEA member state are insufficient.