In Ziolkowski (Freedom of movement for persons) [2011] EUECJ C-424/10 (21 December 2011), the CJEU held that a Union citizen, who has been resident for more than five years in a Member State on the sole basis of the national law of that Member State, cannot acquire a right of permanent residence if during that time he was not exercising treaty rights in accordance with Article 7(1) of the Citizens' Directive (e.g as a worker or a family member of one). Mr Ziolkowski was a Polish national who arrived in Germany in September 1989 and obtained a residence permit on humanitarian grounds for the period from July 1991 to April 2006. The Land Berlin refused to issue him with a document certifying that he had a right of permanent residence under Article 16 of Directive 2004/38. Mr Ziolkowski had argued that the right of permanent residence must be recognised in respect of any Union citizen who has resided legally in the host Member State for five years, without there being any need to verify that such a person has sufficient resources. The CJEU ruled that while the wording of Article 16(1) did not give any guidance on the terms 'who have resided legally', the right of permanent residence had to be viewed in the specific context of Directive 2004/38 and recital 17 in the preamble, where it states that such a right should be laid down for all Union citizens and their family members who have resided in the host Member State 'in compliance with the conditions laid down in this Directive' during a continuous period of five years without becoming subject to an expulsion measure. The Court noted that this clarification was inserted into the recital during the legislative process in the European Parliament (SEC/2003/1293 final), and was inserted 'in order to clarify the content of the term "legal residence"' for the purpose of Article 16(1) of the directive. The Court went on to conclude:
"46It follows that the concept of legal residence implied by the terms 'have resided legally' in Article 16(1) of Directive 2004/38 should be construed as meaning a period of residence which complies with the conditions laid down in the directive, in particular those set out in Article 7(1).
47Consequently, a period of residence which complies with the law of a Member State but does not satisfy the conditions laid down in Article 7(1) of Directive 2004/38 cannot be regarded as a 'legal' period of residence within the meaning of Article 16(1)."
The CJEU confirmed that periods of residence completed by an accession national in the territory of a Member State before the accession of that non-Member State to the European Union can be taken into account for the purposes of the acquisition of the right of permanent residence under Article 16(1) of Directive 2004/38 so long as the person concerned could demonstrate that such periods of residence were completed in compliance with the conditions laid down in Article 7(1): Secretary of State for Work and Pensions v Lassal (C-162/09) paras 39-40 applied. (Click here for transcript).
R (AA (Iraq)) v Secretary of State for the Home Department [2011] EWCA Civ(Maurice Kay and Longmore LJs and Sir David Keene): The appellant asylum seeker appeaed against the decision of the competent authority that there were no “reasonable grounds” to believe that she was a victim of trafficking to the United Kingdom, and a decision of the secretary of state that her human rights claim was clearly unfounded. The appellant was an Iraqi Kurd, aged 21, who arrived in Belgium with her brother and claimed asylum. She developed a relationship with an African man whilst in an immigration accommodation centre but hid it from her brother to avoid anger. Some Iraqi men found out and raped her. She became pregnant, had an abortion and was beaten by her brother as a result. She sought assistance from the police but was not provided with any. She said she escaped to Calais where a smuggler said he would bring her to the UK if she slept with him. She agreed because she felt this would protect her against advances from other me. She claimed asylum on arrival in UK but the SSHD refused to deal with her asylum claim pursuant to the Dublin II Regulations (343/2002). She made representations that she had been trafficked into the UK and a reference was sought from the competent authority for the purposes of the Convention on Action against Trafficking in Human Beings 2005 (the Trafficking Convention). The competent authority rejected her claim. The challenge complained that such a decision was irrational. The Court found that the competent authority was entitled to conclude that the appellant’s account could not be relied upon. There was nothing irrational about the authority concluding that her account of events in France which lay at the heart of her trafficking claim could not be relied upon to establish "reasonable grounds" for believing that she had been trafficked. That in itself was sufficient for the challenge of the authority's decision to fail, but the court would also consider whether, if her account had been accepted, "reasonable grounds" would have been established. Article 4(a) of the Trafficking Convention contained three components, namely (a) the action of " recruiting, transporting, transfer, harbouring or receipt of persons; (b) by means of the threat of use of force or other forms of coercion, of abduction, fraud, deception the abuse of power or a position of vulnerability; and (c) for the purpose of exploitation. The conveying of the appellant to the UK met the "action" requirement, but there was no evidence that she was transported by any of the means set out in the second component. The closest the appellant might have come to demonstrating reasonable grounds would have been an alleged abuse of her position of vulnerability. That required the person to have had "no real and acceptable alternative to submitting to abuse." That was not the situation as indicated by the appellant’s own evidence. As for the "purpose" requirement, there was no evidence that her transportation was for exploitation. The authority's decision could not be impugned (see §§67,69-70, 72, 78 of judgment). (2) The appellant failed to establish that the Belgian authorities would be unable or unwilling to provide adequate protection for her from assaults by her brother or other Iraqi men. There was no evidence that the appellant would be at any greater risk of trafficking in Belgium than in the UK and none to cast doubt on the ability and willingness of the Belgian authorities to take appropriate measures to protect the appellant against the risk of suicide and to provide for her mental health, and therefore the high art.3 threshold had not been crossed. (§§98,100, 107, 109). Click here for judgment.
Muse and Ors (By their litigation friend Fadumo Nur Ali) v Entry Clearance Officer [2012] EWCA Civ 10(Toulson, Etherton, Kitchin LJs): The appellants are five Somali children who live in Ethiopia. They appeal against repeated refusals of their applications for leave to enter the UK in circumstances where the sponsor mother lived in the UK and the children lived in Ethiopia. The Secretary of State for the Home Department contended that if the mother wanted to be united with her children she could relocate to Ethiopia instead. The Court of Appeal held that the question whether it would be reasonable to expect a person to relocate was not as simple as it sounded, especially where the facts produced an obvious negative or affirmative answer. The harshness of such an expectation was a matter of degree which formed part of an overall evaluation of whether refusal of entry was disproportionate. Such cases required particularly careful evaluation of the particular facts. In finding that the sponsor mother could gain entry to Ethiopia, the Immigration Judge had failed to consider the question of her financial support. He also failed to give reasons as to why refusal of leave was proportionate. Click here for judgment.
R (MWA) v Secretary of State for the Home Department and Birmingham City Council [2011] EWHC 3488 (Admin)(Beatson J): This is another age dispute judicial review trial. The claimant, an Afghan asylum-seeking claimed to be 12 years old when he entered the UK in June 2009. He was subsequently assessed to be at least 18 by the local authority. In June 2010, he obtained a Dr. Birch paediatrician report which concluded he was about 13 years and 11 months. The SSHD had refused the claimant’s asylum claim. On appeal, an immigraton judge determined he was 13. The SSHD withdrew her decision and the local authority also reviewed its assessment of the claimant’s age. The re-assessment maintained a conclusion that the claimant was over 18. The SSHD therefore contended she could depart from the immigration judge’s findings. The claimant appealed. Dr. Birch produced a further report maintaining her conclusion that the claimant is a child. The immigration tribunal considered the claimant’s second appeal and determined that it should not depart from the original judge’s determination. This left an unsatisfactory situation whereby the local authority contended that it was not bound by the immigration judge’s determination. The SSHD however accepted the claimant’s age. Yet another Dr. Birch report was produced and the conclusion was that in November 2011, the claimant was 13-15 years old. The court held a trial of the claimant’s age and concluded that (i) the claimant was not credible (ii) Dr. Birch’s conclusion was not reliable because her methodology had been criticised in other cases. See A v Croydon LBC [2009] EWHC 939 (Admin) (Collins J); R v Croydon LBC [2011] EWHC 1473 (Admin) (Kenneth Parker J); R (N) v Barnet LBC [2011] EWHC 2019 (Admin) per HHJ David Pearl. The Court determined that the claimant was at least by the second age assessment produced by Birmingham at least 18 years old and therefore was 19 years old at the time of the hearing in December 2011. Judgment was entered against the claimant. Click here for judgment.
n.b. Please do note that this case was decided on the basis of the judge imposing a burden of proof on the claimant to prove he is under 18 years old at the time he asserted that a duty was owed to him as a child. The position in law changed a few days before this judgment was handed down. See case of CJ v Cardiff CC [2011] EWCA Civ 1590 (click here for judgment). To that extent, caution should be exercised before relying on this aspect of the judgment. Given the significant negative credibility findings and the absence of other evidence other than discredited paediatric evidence, it is unclear on the face of the judgment whether applying the correct law on the burden of proof per CJ would have made any difference to the outcome of the case. This goes to illustrate the fact-sensitive nature of these cases and the need for caution in drawing any broad principles from these substantive fact-finding trials.
R(SS) v Secretary of State for the Home Department [2011] EWHC 3390 (Admin)(Sales J): The claim challenged the Secretary of State’s refusal to waive the fee for an entry clearnce application for settlement in the UK for a claimant child of Somalian nationality. Claimant’s family are present in the UK. They could not afford the application fee as they are on state benefits. Dismissing the claim, the Court set down points for considering Article 8 in such cases: (at §74)
(i) A person outside the UK may have a good claim under Article 8 to be allowed to enter the United Kingdom to join family members already here so as to continue or develop existing family life here.
(ii) There is, in general terms, a reasonable relationship between the application fee in issue and the burden involved on the state and the benefit potentially to be gained by an applicant for entry to the UK such as to remove any problem under Article 8 in relation to requiring payment of the fee for an application for entry clearance in a usual case. This observation covers both the estimated average direct cost of consideration of an application (£371) and the balance of the £810 fee, which operates as a form of contribution or tax levied on those who seek to make use of the immigration system to secure entry to the United Kingdom imposed in the interest of securing the overall quality of the system for them and others.
(iii) A request for waiver of the application fee in a case such as the present is, in substance, a request that the state incur expense (or forego income which would in normal circumstances accrue to it) so as to facilitate, potentially at least, the enjoyment of family life by the claimant (and other members of his family) in a new place, i.e. the United Kingdom. The claim to be entitled to a waiver of the fee by application of Article 8 involves a claim that Article 8 imposes a positive obligation to facilitate enjoyment of that potential family life. The claim under Article 8 is to assessed by reference to the principles applicable to identifying the extent of positive obligations under that provision, rather than by reference to the principles applicable where a direct interference with a right under Article 8(1) is in issue.
(iv) This means that the case is in a rather different category from those cases in which the imposition of a fee involves a direct impediment placed in the way of an individual who wishes to exercise a clearly established Convention right other than Article 8, such as the right to have a civil dispute resolved by a court under Article 6 (where court fees imposed on people who cannot pay prevents them from having access to the very benefit that the right under Article 6 is supposed to confer. There is no automatic right under Article 8 for family members located outside the United Kingdom to be united with other family members who are in the UK; nor does Article 8 create an automatic procedural right for someone outside the UK who is applying to join family members here to have his case considered free of charge by the immigration authorities. The question under Article 8 is whether, by insisting on payment of a fee, the state has failed properly to accord respect to family life where there may (or may not) be a good claim under Article 8 to enter the UK to deepen such family life as already exists.
(v) The approach to identifying positive obligations under Article 8(1) draws on Article 8(2) by analogy, but is not identical with analysis under Article 8(2).
(vi) The notion of "respect" in Article 8(1), which is the foundation for implied positive obligations under that provision, is not clear cut, especially as far as the positive obligations inherent in that concept are concerned: having regard to the diversity of practices followed and the situations obtaining in the Contracting States, the notion's requirements will vary considerably from case to case and the margin of appreciation to be accorded to the authorities may be wider than that applied in other areas under the Convention.
(vii) Reflecting these considerations, an implied obligation under Article 8(1) will only be found where the court has found a direct and immediate link between the measures sought by the applicant and the latter's private and/or family life. A court will be slow to find an implied positive obligation which would involve imposing on the State significant additional expenditure, which will necessarily involve a diversion of resources from other activities of the State in the public interest.
(viii) On the other hand, the fact that the interests of a child are in issue will be a countervailing factor which tends to reduce to some degree the width of the margin of appreciation which the state authorities would otherwise enjoy. Article 8 has to be interpreted and applied in the light of the UNCRC. However, the fact that the interests of a child are in issue does not simply provide a trump card so that a child applicant for positive action to be taken by the state in the field of Article 8(1) must always have his application acceded to. Under Article 3(1) of the UNCRC the interests of the child are a primary consideration – i.e. an important matter – not the primary consideration. It is a factor relevant to the fair balance between the individual and the general community which goes some way towards tempering the otherwise wide margin of appreciation available to the State authorities in deciding what to do. In the present context, the age of the child and the closeness of their relationship with the other family members in the United Kingdom are likely to be important factors which should be borne in mind (if, e.g., a very young child has just been separated from his mother, with whom he has a close relationship in the ordinary way, that is likely to indicate a strong interest for that child in restoring family life with the mother).
(ix) In the context of charging fees for consideration of an application for entry clearance for a family member, it is fair and proportionate to the legitimate interests identified in Article 8(2) of "the economic well-being of the country" and "the protection of the rights and freedoms of others" (i.e. other users of the immigration system and taxpayers generally) for the state authorities to focus attention primarily on the ability of the applicant (even if the applicant is a child) and his sponsor and family members to pay the relevant fee, as policy OPI 216 does. If there is no great difficulty in them raising funds to pay the fee, there will be no tenable case for an implied obligation under Article 8(1) for the applicant to be exempted from paying the fee. In such a case it cannot be said that there is a "direct and immediate link" between the waiver of the fee and respect for family life; nor that the fair balance between the interests of the individual and the interests of the general community requires the state authorities to forego collecting the application fee. Putting the same point positively, the collection of the fee would fall within the wide margin of appreciation to be accorded those authorities (even after adjustment in light of Article 3 of the UNCRC if the interests of a child are in issue).
(x) But in a case where the claimant, sponsor and family can show that they have no ability to pay the fee, it will in my view be necessary to assess in broad terms the strength and force of the underlying claim which is to be made. If, upon undertaking such an exercise, it can be seen that the claimant may well have a strong claim under Article 8 involving an aspect of the interests protected by that provision of particularly compelling force - supporting his claim to be allowed to enter the UK to develop or continue his family life with other family members already here - and that insistence on payment of the fee will set that claim at nought, then in my view an obligation may arise under Article 8 for the Secretary of State to waive the fee (or for the court to order the Secretary of State to waive the fee). In doing this, the Secretary of State and the court are not bound to take the claimant's asserted case at its highest, as on a summary judgment application. They are entitled to subject the case to critical evaluation to determine its true underlying strength and the true force of the particular Article 8 interest being asserted. If it is a strong underlying case concerning a compelling interest under Article 8(1), then (by contrast with the position under sub-paragraph (9) above) it can be said that there is a "direct and immediate link" between the waiver of the fee and respect for family life and that the fair balance between the interests of the individual and the interests of the general community does require the state authorities to forego collecting the application fee. Putting the same point negatively, the collection of the fee would not then fall within the margin of appreciation to be accorded those authorities (especially, in the case of a child, after adjustment in light of Article 3 of the UNCRC).
(xi) In a marginal case, falling between the types of case referred to in sub-paragraphs (ix) and (x) above, where the claimant, sponsor and family may be able to raise the money for the application fee but it may take some time for them to do so, the strength and force of the underlying Article 8 case will again be important, as will the assessment of the financial resources available and how long the making of the application might have to be delayed in order for the necessary funds to be raised.
Click here for judgment.
R (ABC) (A Minor) v Secretary of State for the Home Department [2011] EWHC 2937 (Admin) (HHJ Jeremy Richardson Q.C.): This application for judicial review raises important issues about how the SSHD should deal with young persons who arrive in the United Kingdom and claim asylum when it is asserted they have committed a serious crime abroad. The claimant is a citizen of Afghanistan. He is aged 16 and arrived in the United Kingdom on 16thMay 2010 when he was aged 14. He applies for judicial review of the decision of the SSHD to: (1) exclude him from asylum and humanitarian protection, and; (2) refuse to grant him discretionary leave to remain in the United Kingdom. The basis of the decision is that he is alleged to have committed a serious crime whilst in Afghanistan. The Court held that the SSHD had erred in refusing humanitarian protection to the claimant by ignoring the broad tapestry of factors which had to be examined, including the welfare of the child under the Borders, Citizenship and Immigration Act 2009 s.55. Click here for judgment.
Other matters:
Landing in Dover (January 2012). The Children’s Commissioner’s report on the immgration procedures to which unaccompanied children arriving in Kent are subject between their first encounter with the authorities and the time they are placed in the care of Kent County Council Children’s social care services. Click here for the report.
n.b. Consider this report in conjunction with the case of R (AN and FA) v Secretary of State for the Home Department (2011) 27/7/2011 (extempore) (Mitting J) which considered the legality of detaining children for the purposes of interviewing them for asylum on arrival in Dover. See further the August 2011 Case Update.
See also interesting article in the Observer about the journey that unaccompanied minors endure across Europe. Click here for article.
Comparative Study on Practices in the Field of Return of Minors: Final Report. (European Council on Refugees and Exiles and Save the Children for the European Commission) A study on legislation and practice in relation to the voluntary and forced return of children, both unaccompanied and within families, covering the 27 EU member states, as well as Iceland, Norway, Switzerland and Liechtenstein, and seven countries of return. Click here for report.
