[2024] UKUT 00101 (IAC)

It was common ground before us that the sole permitted ground of appeal available to the appellants was that the decisions breached their rights under the 2016 Regulations insofar as they continued in effect. Mr Jafferji and Mr Deller agree, and we accept, that this is the effect of the savings provisions in Schedule 3 to the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020, particularly paragraphs 5(3)(d) and 6(cc)(bb). Given the agreement between the parties, we do not propose to set these provisions out in full.

The appellants’ claim underwent something of a transformation between the date on which their applications were made to the Secretary of State and the date on which their appeals were presented to the First-tier Tribunal. The applications which were made to the Secretary of State were for permanent residence cards and it was positively asserted in the letter which accompanied those applications that the appellants had acquired permanent residence and were entitled to permanent residence cards as a result.

Before the First-tier Tribunal, however, Mr Jafferji did not contend that the appellants had acquired the right to reside permanently in the United Kingdom. The short skeleton argument which he provided to the judge contended, instead, that the respondent had failed to consider the principle in Chenchooliah and that ‘refusing to grant them a right of residence would be disproportionate’ for seven stated reasons. As such, Mr Jafferji submitted that the appeals ‘should be allowed’ without giving any clear indication of the provisions of the 2016 Regulations which were said to be satisfied or to justify that outcome.

The appellants were evidently not entitled to permanent residence and Mr Jafferji was correct not to advance that submission to the First-tier Tribunal. The sponsor ceased to be a Union citizen in 2012 and the appellants ceased to be beneficiaries under the Directive at that point. It is immaterial that the sponsor was subsequently found to have permanent residence. He was not a Union citizen, and the appellants could derive no benefit from the fact that they were related to a non-Union citizen with permanent residence. For the same reason, the appellants were unable to contend before the First-tier Tribunal that they were entitled to residence cards as the dependent family members of a qualified person.

Mr Jafferji therefore sought to submit that it would be disproportionate to expel the appellants, but we do not consider that submission to have been available to him in the absence of an expulsion decision. As Mr Deller submitted, the suggestion that refusing to grant someone a right of residence is disproportionate is based on a conflation of different provisions and different processes under the Directive and the Regulations. Rights of residence and permanent residence are set out in Chapters 3 and 4 of the Directive and are transposed by Part 2 of the 2016 Regulations, whereas restrictions on those rights are governed by Chapter 6 of the Directive and Part 4 of the 2016 Regulations. It is no part of the scheme under the Directive or (more importantly in the context of an appeal such as this) the Regulations that a decision maker who does not accept that an applicant has a right to reside must also consider whether it would be disproportionate so to hold.

Chenchooliah was of no assistance to the appellants and the judge erred in concluding otherwise. Ms Chenchooliah was a Mauritian national who married a Portuguese gentleman who was exercising Treaty rights in Ireland. She was entitled to a right of residence for up to three months under Article 6(2) of the Directive but when she came to make an application for a residence card, it was refused on the basis that her husband had stopped working. He subsequently returned to Portugal. The Irish authorities also made an expulsion decision, however. Ms Chenchooliah accepted before the Grand Chamber of the Court of Justice that she was not a beneficiary under the Directive, but she submitted that she could only be expelled from Ireland in compliance with the rules and safeguards laid down in Chapter 6 of the Directive. The Court of Justice accepted that submission, holding that the procedural safeguards in Article 15 extended to an expulsion decision which was made on the ground that the individual concerned had lost their right of residence as a result of the departure of the Union citizen from the host member state.

It could not be any clearer from the decision of the Grand Chamber that Ms Chenchooliah’s challenge was to the expulsion decision and that it was this decision which brought considerations of proportionality into play: [68] and [77] refer. The importance of the expulsion decision as a ‘trigger’ for the consideration of proportionality is also clear from the concise dispositif:

In the appellants’ cases, however, there has been no expulsion decision and the procedural safeguards are of no application.

There was some suggestion on Mr Jafferji’s part that the respondent had ‘failed’ to consider expulsion, thereby depriving the appellants of the opportunity to access the procedural safeguards in the Directive. We do not accept that submission for two reasons.

Firstly, it is entirely appropriate and in keeping with the Directive for the Secretary of State to confine himself to considering an application for a residence card or a permanent residence and, where such an application is refused, not to consider whether to expel the individual concerned. A person who is informed that they have no right to reside under EU Law might properly decide to leave the United Kingdom without an expulsion decision being taken, after all.

Secondly, on the facts of this case, there was no suggestion whatsoever in the letter which accompanied the appellants’ applications that the respondent should consider whether to expel them. It was instead positively asserted that they had acquired a permanent right to reside in the United Kingdom, and there was no reference to expulsion, or to proportionality, or to Chenchooliah. The Secretary of State therefore considered what she was invited to consider, and it lies ill in the mouth of the appellants to suggest that she ‘failed’ to consider the separate question of expulsion.

Mr Jafferji also submitted that the statement in the refusal letters that the appellants ‘should make arrangements to leave the UK’ was of significance because it ‘contemplated the departure of the appellants from the UK’. In our judgment, however, this part of the refusal letter merely contemplated the possibility that the appellants might themselves seek to comply with the law by leaving the United Kingdom. It certainly did not mean that the Secretary of State had decided to expel them from the United Kingdom. Nor did it mean that “enforcement would inevitably follow”, as Mr Jafferji submitted at [7] of his skeleton. The Secretary of State has not turned his mind to the question of expulsion and if he does so, he might decide not to expel the appellants; there is no proper basis for assuming that he would reach an adverse decision.

Mr Jafferji also sought to submit in his skeleton argument that the respondent’s stance in this case was contrary to the principle of effectiveness in Article 19(1) of the Treaty on European Union (“Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law”). Given the limited right of appeal which is available to the appellants, we doubt whether that submission is even available to Mr Jafferji. Even assuming that it is, however, we consider it to be unmeritorious. As we have seen, the appellants asserted before the Secretary of State that they had a right to reside permanently in the United Kingdom. They had a right of appeal against the refusal of that application, during which they were entitled to contend that they had a right of residence or a permanent right of residence. No wider remedy was required to ensure effective legal protection of the right asserted to the Secretary of State.

For all these reasons, therefore, we conclude that the judge erred in law in considering the question of proportionality in this case. There had been no expulsion decision and no question of proportionality arose. Chenchooliah, to which the judge attached significance, was readily distinguishable, and he erred in concluding otherwise. We therefore set aside the decision of the judge to allow the appellants’ appeals.

We announced our decision at the hearing and invited Mr Jafferji to indicate whether there was any other basis on which he sought to submit that the appellants’ appeals might properly be allowed on the limited grounds available to them. He did not advance any alternative submissions. Given that the appellants are accepted not to have a right to reside or a right to reside permanently in the United Kingdom, we therefore substitute a decision dismissing their appeals.