Before the English Court of Appeal (Civil Division)

Muhidin Ali v Secretary of State for the Home Department

[2006] EWCA Civ 484, [2006] 3 C.M.L.R. 10


DATE:
3 May 2006

COUNSEL: Mr B. Bedford, instructed by Sultan Lloyd Solicitors, for the appellant.>br> Mr T. Eicke, instructed by Treasury Solicitor, for the respondent.

JUDGES: May, Keene and Wall L.JJ.

On appeal from the Asylum and Immigration Tribunal (Grimmett, Immigration Judge).

M, a Somali national, claimed asylum in the United Kingdom. When it was sought to remove him from the country, he also claimed rights of residence under Community law and Art.8 ECHR. He claimed to be married to a Dutch national, A, who had been looking for work in the United Kingdom and therefore had rights of residence under Art.39 EC. Alternatively, he argued that his son by A, who was also a Dutch national, had a right of residence in the United Kingdom under Art.18 EC while he was pursuing education in that State, and that M was entitled to accompany his son while he was a minor. The immigration judge rejected those arguments. On appeal:

Held:

Standard of proof of relationship giving rise to Community law rights

The normal civil standard of proof applied to the question whether persons were married for the purpose of determining their rights of residence under Community law. The court at first instance had been entitled to find that M and A were not married. [12]

Pregnancy as relevant consideration in assessment of evidence

It was not discriminatory to take account of whether a woman was pregnant in determining whether she was credible in saying she had been looking for work. On [*327] the evidence, the court at first instance had been entitled to conclude that A had not been looking for work, so M could not derive any rights through her. [14]

No unfettered right of residence under Article 18 EC

(a) Article 18 EC did not provide an unfettered right of residence. It was a persistent theme in the relevant Directives (e.g. Directives 90/365, 93/96, 2004/38) and the jurisprudence of the Court of Justice that the exercise of that right should not place an unreasonable burden on the public finances of the host State. Hence, there was a regular requirement that the person in question should have sufficient resources to avoid becoming such a burden, unless he was in or seeking employment or was self-employed and thereby earning such resources himself. [20][25]

Chen (C-200/02): [2004] E.C.R. I-9925; [2004] 3 C.M.L.R. 48; Ex p. Vitale: [1996] 2 C.M.L.R. 587, followed.

Baumbast (C-413/99): [2002] E.C.R. I-7091; [2002] 3 C.M.L.R. 23; Grzelczyk (C-184/99): [2001] E.C.R. I-6193; [2002] 1 C.M.L.R. 19; De Hoop (C-224/98): [2002] E.C.R. I-6191; [2002] 3 C.M.L.R. 12, distinguished.

(b) M’s child did not therefore enjoy any right of residence in the United Kingdom merely because of Art.18 EC and his being in receipt of primary education, and M could not obtain any derivative right as the father of that child. [27][28]

[*328] Judgment

Keene L.J.:

1 This appeal is concerned with rights of residence in the United Kingdom arising as a result of the law of the European Community, including the domestic regulations which seek to embody that law. It is an appeal from an Immigration Judge, who on August 26, 2005 dismissed an appeal by Mr Ali from a refusal by the Secretary of State of his asylum application. In so far as that appeal concerned rights of asylum, it is no longer open to challenge, since permission to appeal on those aspects was refused by Brooke L.J. and that application for permission has not been renewed. However, the Immigration Judge also dealt with claims that the appellant had rights of residence in this country under European law and also that to remove him would breach his rights under Art.8 of the European Convention on Human Rights. The appellant has permission to appeal on grounds relating to those issues.

2 He is a Somali national who arrived in the United Kingdom in December 2002 and claimed asylum. A year later he claimed asylum a second time for himself and also for a dependent son born in 1999. There were a considerable number of factual disputes before the Immigration Judge, who for entirely understandable reasons found that she could not accept many of the appellant’s assertions in his evidence. She did accept that a woman called Mrs Nasra Abdi was a Dutch citizen but she did not accept that Mrs Abdi and the appellant were married. The judge accepted that the appellant’s son born in 1999, called Yasir, was a Dutch national, as were three others amongst Mrs Abdi’s children, who were not the appellant’s children. It was also accepted that the appellant might be the father of two other children born in the United Kingdom to Mrs Abdi. But, while the judge found that there was a family relationship between Mrs Abdi and the appellant, she was not satisfied that they were living together.

3 It was contended before the judge that Mrs Abdi was a “worker” within the meaning of Art.39 of the European Community Treaty. That was rejected by the judge, who did not accept Mrs Abdi’s assertion that she had looked for work at hotels when she arrived in this country in November 2000. The facts as found were that she had never been in employment in the United Kingdom between that date and the appeal hearing which continued into August 2005, a period of nearly five years. She had been five months pregnant on arrival in this country and also had four children with her. She had never been to a Job Centre to look for work and was not in receipt of Job Seekers Allowance. Although she claimed that she would start looking for work when the children went back to school in September, the judge did not accept this. The judge noted that, since the appellant was not entitled to work in this country, there was no reason why Mrs Abdi could not look for work [*329] immediately. It was found that Mrs Abdi had never looked for any work. The judge also found that Mrs Abdi was not a recipient of services in the United Kingdom, since she had never paid for services here.

4 Most of the children were in education in this country, including those who were Dutch nationals, one of whom was the appellant’s son. But the judge held that this did not give the appellant a right of residence in the United Kingdom, nor did the children have such a right in order to receive education for which they were not paying. As for Art.8, it was held that there were no insurmountable obstacles to the appellant, Mrs Abdi and the children living together in Somalia or in Holland.

5 The legal context for this appeal is to be found in the European Community Treaty, Arts 18 and 39, Council Directives 73/148, 90/364, 90/365, and 93/96 and the Immigration (European Economic Area) Regulations 2000 (“the 2000 Regulations”). The last-named Regulations seek to give effect in this country to the relevant provisions of European Community law on this topic. Article 18 of the Treaty was introduced by the Treaty on European Union in 1992 and was originally numbered Art.8a. It provides, in so far as material for present purposes:

“1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.

2. If action by the Community should prove necessary to attain this objective and this Treaty has not provided the necessary powers, the Council may adopt provisions with a view to facilitating the exercise of the rights referred to in paragraph 1. The Council shall act in accordance with the procedure referred to in Article 251.”

6 Article 39 of the Treaty deals with freedom of movement for workers within the Community. Directive 73/148 provides that recipients of services are entitled to go to another state for those services: Article 1(1)(b). Directives 90/364 and 90/365, both dated June 28, 1990, deal with rights of residence. The latter requires member states to grant the right of residence to nationals of other Member States (and to certain members of their families) who have been employees or self-employed but who have retired or otherwise ceased their occupational activity, provided that their pension or other benefits are

“of an amount sufficient to avoid becoming a burden on the social security system of the host Member State during their period of residence and provided they are covered by sickness insurance in respect of all risks in the host Member State.” (Article 1(1))

7 Directive 90/364 requires member states to grant the right of residence to such nationals “who do not enjoy this right under other provisions of Community law and to members of their families”, provided that they themselves and the members of their families are covered by sickness insurance in respect of all risks in the host Member State and have sufficient resources to avoid becoming a burden on the social assistance system of the host Member State during their period of residence: Article 1(1). [*330]

8 Directive 93/96 creates by Art.1 a right under certain conditions to reside in another Member State for the purpose of following a vocational training course. One of those conditions is that the student gives an assurance that he has sufficient resources to avoid becoming a burden on the social assistance system of the host state. Another condition is that he is covered by sickness insurance in respect of all risks.

9 The 2000 Regulations confine the right of residence to “qualified persons” and their family members: Regulation 14(1) and (2). “Qualified person” is defined by Regulation 5(1) as an EEC national in the United Kingdom who is in one of a number of descriptive categories. These include (a) “a worker”; (d) “a recipient of services”; (e) “a self-sufficient person”; and (g) “a student”. A worker is defined merely by reference to Art.39 of the Treaty, and “a recipient of services” only as “a person who receives, or seeks to receive, services within the meaning of Art.50”; see Regulation 3(1)(a) (d). But separate and detailed definitions are provided of “self-sufficient person” and “student”: see Regulation 3(1)(e) (g).

10 “Family member” is defined in Regulation 6. In general, it covers the qualified person’s spouse, descendants of that person or his spouse who are under 21 or their dependants: and dependent relatives in ascending line of the qualified person or of his spouse: see Regulation 6(4).

11 The first ground of appeal for which permission has been given concerns the judge’s finding that the appellant and Mrs Abdi were not married. It is argued that the judge misdirected herself as to the test for so deciding and that the standard of proof required should only be that of a serious possibility or a reasonable likelihood. The judge expressly decided this issue on the balance of probabilities, as can been seen from para.[28] of the decision. Mr Bedford, who appears for the appellant, then contends that if one applies the test of serious possibility or reasonable likelihood, it was and would be irrational to conclude that these two persons were not married. Some reliance is placed on the fact that, in asylum cases and cases involving Arts 2 or 3 of the ECHR, the risk to the claimant only has to be established to the extent of showing a reasonable likelihood of persecution or treatment amounting to a breach of one of those Articles: R. v Secretary of State for the Home Department Ex p. Sivakumaran: [1988] A.C. 958. However, Mr Bedford was unable to point to any authority holding that a similar standard of proof should apply when determining issues of status relevant to a right of residence conferred by European law or English domestic law.

12 I can see no basis on which it could be said that the judge was wrong to apply the normal civil standard of proof. There is, as already indicated, no authority to that effect, and it is quite unjustified in principle. There is no justification for applying the lower standard of proof applicable in asylum and Arts 2 or 3 cases to a case such as the present. In any event, the admitted lies and inconsistencies in the evidence of the appellant and the inconsistencies and what the judge found to be lies in the evidence of Mrs Abdi were such that the judge was fully entitled to disbelieve their oral evidence that they were married. What other evidence was there to establish that they were married? There was no documentary evidence to that effect and no further oral evidence. Mr Bedford concedes in argument that if the appellant and Mrs Abdi were disbelieved, as they were, then there was no evidence to show that they were married. It follows that, whatever standard of proof is applied, the [*331] answer is the same. I conclude that, even were the lower standard advocated by Mr Bedford to apply, the judge’s finding is unassailable.

13 It is then contended that Mrs Abdi should have been found to have been “a worker” within the meaning of European Community law. Mr Bedford submits that the Immigration Judge misdirected herself by taking account of the fact that Mrs Abdi was pregnant on arrival in this country as part of the reasoning for disbelieving Mrs Abdi’s evidence that she had at that time been seeking hotel work. Reference is made to the decisions of the European Court of Justice in Webb v EMO Air Cargo (UK) Ltd (C-32/93): [1994] E.C.R. I-3567; [1994] 2 C.M.L.R. 729 and Hofmann v Barmer Ersatzkasse (184/83): [1984] E.C.R. 3047; [1986] 1 C.M.L.R. 242, as demonstrating the privileged position of women who are pregnant or who have recently given birth. The further argument is raised that, because of her need to care for her children, Mrs Abdi was not in a position to seek employment and that it would be discriminatory to hold this against her when determining whether or not she was a “worker”.

14 The first of these arguments is misconceived. A judge is entitled to take account of the fact that a witness was pregnant at a particular time if that fact is relevant to deciding whether or not she is to be believed in her evidence as to what she did at that time. If, for example, a witness was eight months pregnant at the time, a judge could properly take that into account when deciding whether she was credible in saying that she had been rock climbing. It is not discriminatory to take that into account. As for the second argument, it is certainly right that a European Community national need not actually be in employment at the relevant time in order to qualify as “a worker”. The term covers job-seekers, retired workers and certain other analogous categories. Job-seekers are entitled to a reasonable time to find work. But there has to be evidence that they are seeking employment and that they have genuine chances of being engaged: Commission of the European Communities v Belgium (C-344/95): [1997] E.C.R. I-1035; [1997] 2 C.M.L.R. 187 and R. v Immigration Appeal Tribunal Ex p. Antonissen (C-292/89): [1991] E.C.R. I-745; [1991] 2 C.M.L.R. 373. In the present case, the judge was entitled on the evidence to find that Mrs Abdi had never sought employment in this country.

15 It is true that she was pregnant when she arrived here in November 2000, but that was not said by Mrs Abdi to have prevented her from seeking work. She had some children below school age during the five years she had been in the United Kingdom, either two or three children, depending on the date. But the last child was born in July 2002 and was aged three by the date of the hearing. Given her relationship with the appellant, who was not entitled to work, the judge was entitled to reject the argument that child-care responsibilities had prevented her from seeking employment during the whole of the five-year period. After all, part-time employment may suffice to qualify a person as a worker: Levin v Secretary of State for Justice (53/81): [1982] E.C.R. 1035; [1982] 2 C.M.L.R. 454. It seems to me that the judge was fully entitled to conclude that Mrs Abdi was not “a worker” for the purposes of European Community law and the 2000 Regulations. Mrs Abdi was therefore not a “qualified person” under those Regulations and the appellant had no right of residence, even if he had been her spouse. [*332]

16 The main thrust, however, of the appellant’s case is that his son, who was and is a Dutch national, had a right to reside in the United Kingdom in order to be educated here and that he, the appellant, was entitled to accompany his son while the latter was a minor. It is perhaps helpful to indicate what is not being advanced as an argument before turning to the basis of the submission which is made. It is not contended that the appellant’s son is a recipient of services, nor can it properly be so argued, because services for this purpose are limited, where students are concerned, to those services normally provided for remuneration: Belgium v Humbel (263/86): [1988] E.C.R. 5365; [1989] 1 C.M.L.R. 393. They do not cover courses of study provided by the national education system. Nor does the appellant seek to say that his son has the right of residence available to those students enrolled to follow a vocational training course within Directive 93/96. He is not so enrolled, being aged only five at the date of the appeal hearing. Regulation 3(1)(g) of the 2000 Regulations requires such enrolment for a person to have a right of residence as a student. It also requires evidence that the person has sufficient resources to avoid him becoming a burden on the social assistance system and is covered by sickness insurance. There was no evidence to such an effect. It might be thought therefore that the appellant’s son has no right of residence as a student.

17 However, Mr Bedford seeks to argue that the appellant’s son has a right of residence in this country by virtue of Art.18 of the Treaty. He submits that any child who is a citizen of the European Union is entitled to reside in any Member State for the purpose of receiving primary or secondary education and that his parents, if providing care, are entitled to accompany him so as to prevent any inhibition on the exercise of his right to “move and reside freely” under Art.18. It is acknowledged that the various Directives dealing with the right of residence and set out earlier in this judgment attach conditions and limitations to such a right in the cases with which they deal, such as a retired person or a worker. But it is contended that the right to residence under Art.18 is unlimited unless one of the Directives applies so as to limit it or impose pre-conditions.

18 Mr Bedford cites the European Court of Justice cases of Grzelczyk v Centre Public d’Aide Sociale d’Ottignies Louvain la Neuve (C-184/99): [2001] E.C.R. I-6193; [2002] 1 C.M.L.R. 19 and D’Hoop v Office National de l’Emploi (C-224/98): [2002] E.C.R. I-6191; [2002] 3 C.M.L.R. 12 in support of his argument. The latter decision, it is said, shows that the pursuit of education is an activity within the scope of the Treaty, with the result that Art.18 rights of residence apply when a citizen of the European Union is seeking to engage in it. He also refers to Directive 2004/38, which is not yet in force and which provides for a right of residence for citizens of the European Union in another Member State for a period of longer than three months if they fall into certain categories. These include those covered by earlier Directives, such as workers, the self-employed and those having sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and also having comprehensive sickness insurance cover in the host Member State. The Directive also confers the right of residence for those citizens of the Union who [*333]

“are enrolled at a private or public establishment, accredited or financed by the host Member State … for the principal purpose of following a course of study, including vocational training.”

However, the rights of those in this last category are conditional on them having comprehensive sickness insurance cover and assuring the relevant national authority that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence: see Art.7.

19 Mr Bedford submits that, while this makes the right of residence for educational purposes dependent on, amongst other things, having sufficient resources to avoid becoming a burden on the host state, this restriction on the right of residence only operates as from April 30, 2006, when this Directive comes into effect. Until then, he says, there is this lacuna not covered by a Directive, so that the right of residence for the time being is not dependent on showing sufficient resources to avoid becoming a burden on the state. Counsel recognises that the consequence of his argument is, at any rate until April 30, 2006, far-reaching, since it would mean that a parent, or in appropriate cases, both parents who have a child of school age who is a citizen of the Union could claim for him and by derivation for themselves a right of residence anywhere in the Union, so long as the child sought education in the Member State in question. Nonetheless it is submitted that this is the situation under European law.

20 In my judgment, it patently is not. None of the European Court of Justice’s decisions recognise such an unfettered right of residence, and several of them clearly imply that there is no such right merely because of Art.18. Thus, in another of the cases relied on by Mr Bedford, Baumbast v Secretary of State for the Home Department (C-413/99): [2002] E.C.R. I-7091; [2002] 3 C.M.L.R. 23 the Court upheld the right of residence of a child who was a European Union citizen and was receiving primary education, but it did so on the basis that the child’s parent was a citizen of the Union entitled to freedom of movement as a worker under Art.39. To deny the child the right of residence would inhibit the parent from exercising his Art.39 right: see paras [51] and [52]. What is striking is that the Court nowhere suggested there that the child as a citizen of the Union had the right of residence simply by virtue of Art.18 and his pursuit of primary education. As for the cases relied on by the appellant of Grzelczyk and De Hoop, they merely reflect the principle that, when a citizen of the Union is studying in one Member State, he is not to be discriminated against on grounds of nationality or because the study took place in another Member State. They tell one nothing about rights of residence.

21 What is noticeable is the persistent theme in the Directives and the jurisprudence of the Luxembourg court that the right of residence under Art.18 is not unfettered. In particular, there is a recognition of the principle that the exercise of this right should not place an unreasonable burden on the public finances of the host state. Hence the regular requirement that the person in question should have sufficient resources to avoid becoming such a burden, unless he is in or seeking employment or is self-employed and thereby earning such resources himself. Directive 90/364 includes amongst its recitals the following: [*334]

“Whereas beneficiaries of the right of residence must not become an unreasonable burden on the public finances of the host Member State …”

The same words appear in the recitals to Directive 90/365 and 93/96, and recital 10 to the Directive 2004/38 on freedom of movement and residence states:

“Persons exercising their right of residence should not, however, become an unreasonable burden on the social assistance system of the host Member State during an initial period of residence. Therefore, the right of residence for Union citizens and their family members for periods in excess of 3 months should be subject to conditions.”

22 In the case of Chen and Zhu v Secretary of State for the Home Department (C-200/02): [2004] E.C.R. I-9925; [2004] 3 C.M.L.R. 48, the European Court of Justice stated at para.[32]:

“Moreover, the limitations and conditions referred to in Article 18 EC and laid down by Directive 90/364 are based on the idea that the exercise of the right of residence of citizens of the Union can be subordinated to the legitimate interests of the member States. Thus, although, according to the fourth recital in the preamble to Directive 90/364, beneficiaries of the right of residence must not become an “unreasonable” burden on the public finances of the host Member State, the Court nevertheless observed that those limitations and conditions must be applied in compliance with the limits imposed by Community law and in accordance with the principle of proportionality.”

The Court there properly emphasises that the rights under Art.18 are expressly stated to be “subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect”: see Art.18(1). These measures include the various Directives to which I have referred and which contain various restrictions on the right of residence. In particular, Directive 90/364 reflects the requirement of “sufficient resources to avoid becoming a burden” on the host state and, subject to that condition, provides for a right of residence to nationals of Member States

“who do not enjoy this right under other provisions of Community law.”

Yet if Mr Bedford is right, this Directive and its restrictive requirement have very little, if any, role to play, because Art.18 itself confers an unfettered right of residence. His argument would rob Directive 90/364 of any real application. That does not make sense.

23 Since oral argument was concluded in this case, the court has become aware of the decision in R. v Secretary of State for the Home Department Ex p. Vitale: [1996] 2 C.M.L.R. 587. That was a decision of this court dealing with what was the then equivalent of Art.18, namely Art.8(a), which was in identical terms. The argument was there raised by the appellant, an Italian citizen, that the Article conferred an unlimited right to reside in the United Kingdom. This court rejected that argument. Its judgment was delivered by Staughton L.J., who said first that it was clear that Art.8(a) could not be taken to have replaced Directives 90/364, 90/365 and 90/366. He continued at p.467j to 468b as follows: [*335]

“Each of these directives was a measure adopted to give effect to the Treaty, and each of them contained the limitation on the right of residence that the visiting national should not become a burden on the social assistance system of the host member state. The right of residence conferred by art 8a is, therefore, in our view, still subject to that limitation. As for the submission that all nationals now have a general right of residence by virtue of art 8a, this seems to us to ignore the plain words that the art 8a right of residence is made subject to the limitations and conditions contained in measures such as these directives. In our judgment, there is at the moment no unqualified right of residence of the kind claimed by the appellant.”

24 In written submissions on this case, Mr Bedford argues that the decision that there is no unqualified right of residence was unnecessary for the decision and was obiter. I cannot agree. It is clear that the court in that case was dealing with one of the essential issues which had been raised, it being the appellant’s contention in Vitale that there was such an unqualified right. Secondly, it is sought to distinguish that case on the basis that the present appellant’s son is not in a comparable position, since he is seeking to pursue education, which is within the scope of the Treaty. That is not a valid distinction, for reasons I have set out earlier. Thirdly, it is said that the decision in Vitale is not binding on us, because in such cases involving European law the principle of stare decisis does not apply. For that proposition, reliance is placed on this court’s decision in Trent Taverns Ltd v Sykes: [1999] Eu. L.R. 492; (1999) 11 Admin. L.R. 548.

25 The Trent Taverns case does not in fact establish so wide a principle. All that was said there was that the rule of precedent does not deprive a court of its power to make a reference to the European Court of Justice on a point of Community law. But Chadwick L.J., giving the leading judgment, went on to add at p.555 that

“in the absence of any reference, this court must follow its decision in [the earlier case].”

Consequently, in my judgment, the decision in Vitale remains binding on us.

26 As I have already said, I cannot see that the fact that the appellant’s child is receiving education in the United Kingdom makes any difference to the legal position. He is not a recipient of services, since as pointed out earlier, such services have to be ones normally provided for remuneration. Yet, if the appellant were right, that limit would be readily capable of circumvention.

27 I therefore would reject the contention that the appellant’s child who is a Dutch citizen enjoys any right of residence in this country merely because of Art.18 and his being in receipt of primary education. There is no such unfettered right. The new Directive 2004/38 is not imposing a new restriction on a previously unfettered right. It was submitted by the appellant that the issue of the right of residence of this child should be referred to the European Court of Justice for its opinion. I do not regard that as necessary. In my judgment, the position in European law is clear.

28 It follows that the appellant himself cannot obtain any derivative right as the father of that child. It is therefore unnecessary to consider whether the appellant would have had such a right, had his son enjoyed the claimed right of residence. I merely observe that there was no evidence that the appellant was the primary carer [*336] of his son, which appears to be the basis of any such derivative right: Chen (ante). I am satisfied that there is no basis on which the appellant has any right to remain in this country as a result of European Community law or the 2000 Regulations.

29 As for any Art.8 rights, that aspect of the case has not featured to any great extent as an argument on this appeal. It is therefore sufficient to say that I can see no flaw in the Immigration Judge’s approach to that issue. Her conclusion on this seems to me to be sound. No breach of Art.8 rights would result from the removal of the appellant from this country.

30 It follows that I would dismiss this appeal.

Wall L.J.:

31 I agree.

May L.J.:

32 I also agree.