Although to be applauded for the determined efforts in seeking a construction of the EEA Regulations that favour the Claimant, the arguments, considerations and reasoning in Ullah, R (On the Application Of) v The Secretary of State for the Home Department  EWHC 1999 (Admin) (31 July 2017) appear unnecessarily complicated, with accompanying repetitious reasons given in order to justify the decision.
What was in issue in Ullah, were the requirements of the 2016 EEA Regulations . The Court acknowledged that via the 2016 Regulations, Parliament had imposed a passport requirement that did not formerly exist- ie Regulation 18(4)(a) imposes a condition that an application submitted by an extended family member be accompanied or joined by a valid passport.
Not only was it argued that the Secretary of State had applied the incorrect Regulations but that both the relevant Guidance Notes and application form in sight at the time of the application were misleading. When these arguments failed, it was sought to request that consideration be given to making a reference to the CJEU. The Court declined.
On the other hand, on behalf of the Secretary of State, much effort was placed on making several arguments which the Court did not altogether adopt for the simple reason that the Judge was not shown the EU legislation intended to support those arguments.
The problem – failure to submit a valid national passport:
The Claimant, a citizen of Pakistan entered the United Kingdom some years ago. He was encountered on 15 June 2016 and was placed on reporting restrictions. He was detained on 20 January 2017, on reporting, and directions for his removal were subsequently issued. He remained in detention.
On the basis that he was in a relationship with a Lithuanian national, a residence card application was made by the Claimant on 20 January 2017, the day on which he was detained. He applied on the basis that he was the unmarried partner of an EEA national exercising Treaty rights in the United Kingdom. In the same application, the Claimant’s partner applied for and, was granted, a residence certificate under regulation 17. The Claimant’s application did not enclose his own passport. He enclosed instead his Pakistani identity card.
The decision of the Secretary of State, dated 14 February 2017, rejected the Claimant’s application for a residence card. The reason why the Claimant’s application was rejected was that his application was not accompanied by a valid passport in his name.
The Claimant lodged an application for judicial review of the decision of the Secretary of State.
Applicable Regulations in Ullah:
The 2016 Regulations came into force on 1 February 2017, replacing the 2006 Regulations. The application for a residence card to which the claim related was made on 20 January 2017 and so was made before the Regulations came into force. The Court however noted that it was common ground that the 2016 Regulations, rather than the 2006 Regulations, applied to the case. This is the effect of transitional provisions in paragraph 4 of Schedule 6 to the 2016 Regulations, which provide, in relevant part, that an application for a residence card that was made but not determined before 1 February 2017 is to be treated as having been made under the 2017 Regulations.
Requirements for valid Passports – The EEA Regulations as they apply to non- EEA family members:
Direct Family Members:
The 2016 Regulations, Regulation 18(1) relevantly provides in relation to family members:
“ 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”.
Retained rights family members:
The 2016 Regulations, Regulation 18(2) relevantly provides in relation to retained rights of residence:
(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.”.
Extended family members:
The 2016 Regulations, Regulation 18(4) relevantly provides in relation to extended family members:
“(4) The Secretary of State may issue a residence card to an extended family member not falling within regulation 7(3) who is not an EEA national on application if—
(a) the application is accompanied or joined by a valid passport;
(b) the relevant EEA national is a qualified person or an EEA national with a right of permanent residence under regulation 15; and
(c) in all the circumstances it appears to the Secretary of State appropriate to issue the residence card”.
Previous 2006 regulations and extended family member applications:
The previous 2006 Regulations, Regulation 17(4) provided:
“(4) The Secretary of State may issue a residence card to an extended family member not falling within regulation 7(3) who is not an EEA national on application if–
(a) the relevant EEA national in relation to the extended family member is a qualified person or an EEA national with a permanent right of residence under regulation 15; and
(b) in all the circumstances it appears to the Secretary of State appropriate to issue the residence card”.
The previous Regulation 17(4), did not impose a requirement that the application be accompanied or joined by a valid passport. Regulation 18(4)(a) is therefore a new requirement.
Alternative evidence of identity and nationality:
Regulation 42 of the 2016 Regulations grants to the Secretary of State the power to waive the condition in regulation 18(4)(a) and to proceed to consider whether to issue a residence card, where the person is unable to obtain or produce the required document due to circumstances beyond the person’s control. Regulation 42(1) provides as follows:
“42.— Alternative evidence of identity and nationality
(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.”
Court’s considerations and conclusions in Ullah:
It was observed that having regard to regulation 18(4)(a), it is a condition of the issuance of a residence card that “the application is accompanied or joined by a valid passport”.
It was held that there is no statutory or other requirement for a decision letter such as that in Ullah to specifically to state the legislation pursuant to which the decision-maker took the decision.
As regards the submission that the rejection letter indicated that the Secretary of State took her decision by reference to the wrong legislation, the 2006 Regulations, rather than the 2016 Regulations, the Court held that though the letter did not specifically state that the Secretary of State was applying the 2016 Regulations, it was clear that she was doing so, because the reason given for rejecting the Claimant’s application was that he had submitted a Pakistani identity card with his application and that these are not deemed as valid evidence of nationality. The letter also made clear that this was the sole reason for rejection and that, because of the Claimant’s failure to submit his passport, the Secretary of State had given no further consideration to his application. This explanation made it clear that the Secretary of State was applying the 2016 Regulations, not the 2006 Regulations, because the condition that the application is accompanied or joined by a passport exists only in the 2016 Regulations, not in the 2006 Regulations.
It was further argued on the claimant’s behalf that the requirement in regulation 18(4) that the application be accompanied or joined by a valid passport was to be read as referring to the passport of the EEA family member and not that of the Claimant. Since the EEA nationals passport was submitted with the Claimant’s application if this was the requirement, it was argued the condition was satisfied. The Court acknowledged that this was a pure point of statutory construction and both counsel were agreed that there was no case-law authority that could assist the Judge in coming to his conclusion. The Court however considered that the Claimant’s argument was misconceived. It was true that regulation 18(4) itself did not specify in terms whether the passport that must accompany or be joined with the application is the passport of the applicant or the applicant’s partner however the Court went on to give a number reasons why the reference must be a reference to the applicant’s own passport.
By reference to several provision of the 2016 EEA Regulations, the Court considered that where the 2016 Regulations require the provision of documentary evidence of identity and nationality by EEA nationals, that evidence can take the form of a national identity card or a passport. Where the 2016 Regulations require the provision of such documentary evidence by non-EEA nationals, that evidence can only take the form of a passport.
The requirement in regulation 18(4)(a) is that the application must be accompanied or joined by a passport. A national identity card will not suffice.
It was plain from the way that the 2016 Regulations are structured and drafted that the passport obligation in regulation 18(4) relates to the applicant’s passport, and not that of their EEA sponsor.
Regulation 18(1) refers to the ‘production of’ a valid passport”, whereas regulation 18(4) refers to the application ‘being accompanied or joined by’ a valid passport. The Court considered that it was common ground that the reference to a passport in regulation 18(1) is a reference to the applicant’s passport. The difference in wording did not have any significance for the question of whose passport it is that must be shown to the Secretary of State.
It is clear that, in the 2016 Regulations, Parliament imposed a passport requirement that did not formerly exist, but this does not affect the proper interpretation of regulation 18(4) of the 2016 Regulations, and, in particular, does not assist with working out whose passport it is that has to be supplied.
It was observed that Regulation 42 of the 2016 Regulations provides that 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. It was noted that the Claimant contended that the Secretary of State acted in a Wednesbury unreasonable way in declining to accept his identity card.
The Court considered that it was not disputed that the Secretary of State was right that the Claimant had not submitted any evidence to show that he could not obtain a passport, or that this was due to circumstances beyond his control. He did not give any explanation of the steps, if any, that he had taken in order to try to obtain a passport. The covering letter from previous legal representatives said simply that the Claimant was unable to obtain a passport, despite his efforts. Neither the letter nor the application specified what those efforts had been. The Court concluded that in these circumstances it was plain that the Secretary of State was entitled to come to the conclusion that she would not accept alternative evidence of the Claimant’s nationality and identity. The statutory requirement in regulation 18(4)(a) was for the Claimant to supply his passport. The Secretary of State was entitled, in the absence of any supporting evidence, to take the view that she was not satisfied that the Claimant was unable to obtain or produce the required document due to circumstances beyond his control. The mere assertion by his solicitors, on the Claimant’s behalf, that he had been unable to obtain a passport despite his efforts was not enough.
The Court also concluded that it not been shown the parent Directive and had also not been shown anything which would lead the Judge to believe that the task of interpreting the meaning of regulation 18(4) would be assisted by a reference to the CJEU. Further the Court was not been provided with a draft of the question that should be asked of the CJEU. In the Court’s judgment, applying normal domestic principles of statutory construction, the meaning and effect of regulation 18(4) was absolutely clear. No point of EU law arose in the case.
It was particularly important that the rejection of the Claimant’s application for a residence card for failure to submit a valid national passport be overturned- without a validly submitted application accompanied or joined by the required document, no further consideration of Mr Ullah’s residence card application could be taken by the Secretary of State. It is of little consolation that the Court stated that the dismissal of the judicial review claim did not mean the end of the road for the Claimant- it was noted that he was in the process of applying for a new passport from the Pakistani authorities, leaving it open to him to make a fresh application. As the Claimant was in detention at the time of submission of the application and during the course of the judicial review proceedings, the likelihood of removal in cases such as these clearly increases.
The letter dated 14 February 2017 in which the Claimant was notified of the decision stated that identity cards are not deemed to be valid evidence of nationality and as such could not be accepted for the purposes of the application. The issue therefore is to ascertain the nationality and identity of an applicant: Home Office Police Guidance Processes and procedures for EEA documentation applications states:
“To qualify for a registration certificate or residence card as an extended family member (EFM) of an EEA national, where the EFM has not previously been issued with residency documentation, the application is only valid where it is submitted on the specified form, is complete, the relevant fee has been paid, and:
where the EFM themselves is a non EEA national seeking a residence card (regulation 18):
-valid passport for the applicant.
Identification document requirements
This section tells you about the identity requirements for applications made under the 2016 regulations.
Acceptable evidence of identity for a non-EEA national applying for a document is a valid passport for themselves”.
Rule 34 of the Immigration Rules provides the requirements enabling submission of valid leave to remain applications. Rule 34 states relevantly:
“(5) (a) Subject to paragraph 34(5)(c), the applicant must provide proof of identity as described in 34(5)(b) below and in accordance with the process set out in the application form.
(b) Proof of identity for the purpose of this Rule means:
(i) a valid passport or, if an applicant (except a PBS applicant) does not have a valid passport, a valid national identity card; or
(ii) if the applicant does not have a valid passport or national identity card, their most recent passport or (except a PBS applicant) their most recent national identity card; or
(iii) if the applicant does not have any of the above, a valid travel document”.
(c) Proof of identity need not be provided where:
(vii) the applicant provides a good reason beyond their control why they cannot provide proof of their identity”.
ID cards usually indicate the nationality, name and date of birth of the person as a bare minimum. A valid passport also indicates the same however, it is not clear why as a particularly emphasised starting point, a valid passport is required from a non-EEA family member applicant before his application can be accepted as valid. The Immigration Rules on the other hand seem to present an array of choices as to the documents required in relation to identity and nationality as set out above. Although the Secretary of State may be able to exercise discretion in EEA applications having regard to Regulation 42, could it be that specifically for non-EEA family members applicants, the new provisions in Regulation 18(4) are intended to further the retention of submitted valid passport to enable expeditious removal if such an application or appeal ultimately fails?
It might be that the outcome in Ullah could have been different where in fact he had made proper evidenced efforts to obtain a valid passport but failed to obtain one and the Secretary of State unreasonably refused to exercise discretion in his favour under Regulation 42.
It is however very unlikely that this is the last litigated case on the issue of validity of EEA applications- the new EEA Regulations are clearly ripe for challenge in this and several other respects.