Asylum and Immigration Tribunal	

LK (EEA Regulation 10(3) – “direct descendant” – “attending”) Kenya [2008] UKAIT 00019 

THE IMMIGRATION ACTS

Heard at Field House		
On 16 January 2008		

Before

SENIOR IMMIGRATION JUDGE ALLEN

Between

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant:	Mr B Hawkin, of Counsel, instructed by Morgan Hall, Solicitors
For the Respondent:	Mr J McGirr, Home Office Presenting Officer 

(1) Regulation 10(3) of the Immigration (European Economic Area) Regulations 2006 can only properly be interpreted as applying to a person who is a direct descendant of a person as defined in Regulation 10(3)(a), and who was actually attending an education course at the prescribed time. (2) Acceptance on a course, even if unequivocal, is not attendance.

DETERMINATION AND REASONS

1.	The appellant is a national of Kenya.  She appealed to an Immigration Judge against the Secretary of State’s decision on 25 January 2007 refusing to grant leave to remain in the United Kingdom.  On 30 August 2001 the appellant was granted a residence permit until 20 November 2006 as a family member of an EEA national exercising Treaty rights in the United Kingdom, and she also applied to extend that residence permit.  The application for indefinite leave to remain was on the basis of ten years’ lawful residence.

2.	Little more need be said about the application on the basis of ten years’ lawful residence under paragraph 276D of HC 395.  It was accepted by and on behalf of the appellant that, after her appeal against refusal of an application she had made for leave to remain as a student was dismissed, she remained in the United Kingdom unlawfully until her application under the EEA Regulations 2000 was granted, and she could therefore not establish ten years’ lawful residence.  She therefore had no right of appeal in that regard.

3.	Thereafter, the appeal was concerned with the appellant’s application to extend her leave as the spouse of JS.  The appellant married JS, who is a Portuguese national, on 21 June 2001 in the United Kingdom.  It seems to have been accepted that he was exercising Treaty rights at that time.  Her application for leave to remain as a spouse was made under the 2000 Regulations and was granted, as set out above, until November 2006.  JS returned to Portugal in April 2005, due to what the appellant described as a family emergency, and he never returned.  They remained in contact and did not consider themselves to be separated and were not divorced.  The appellant had begun a nursing course at the University of Greenwich in May 2005 and was due to complete it in April 2008, and had also been working as a care assistant with an NHS Trust since 13 June 2005.

4.	In oral evidence, the appellant said that she was in contact with her husband by telephone.  The family emergency was something to do with land, and also her mother-in-law was not well.  She herself did not speak much Portuguese, and did not go to Portugal with her husband because of her studies.  As regards the situation in Kenya, she had visited there several times, most recently in April 2005 before she began her nursing course, and she has five brothers and her mother living there.

5.	The Immigration Judge gave consideration to the Immigration (European Economic Area) Regulations 2006 (“the Regulations”).  He considered that, since the evidence showed that JS had left the United Kingdom in April 2005, he was not “in the United Kingdom” as required by Regulation 6 where the definition of a qualified person is set out.  He had been referred to Regulation 10(3)(iii)(b), but noted that, although the appellant was now a student at the University of Greenwich, she was not a student at the time when her husband left the United Kingdom and the documents put in showed only that she was a student on an Access to Nursing course in 2003 and 2004.  Documentation, in the form of a letter from the University of Greenwich dated 3 November 2004, showed that she had been offered a conditional place on a nursing course to commence in May 2005, but the Immigration Judge found that there was a major distinction between a prospective student who had been made a conditional offer of a place on a course and a student who claimed to fulfil the requirements of Regulation 10(3)(b), namely that “He was attending an educational course in the United Kingdom immediately before the qualified person died or ceased to be a qualified person and continues to attend such a course”.

6.	The Immigration Judge concluded that the appellant’s husband ceased to be a qualified person when he left the United Kingdom, and, as she was not attending an educational course in the United Kingdom immediately before her husband ceased to be a qualified person, she could not succeed.

7.	He gave consideration to an Article 8 claim also.  The appellant said that she could not join her husband in Portugal because of her studies and because she does not speak much Portuguese.  The Immigration Judge considered that she could return to her family in Kenya where she could apply to study or to use her learning and experience to find a job.  He did not agree with the submission that this was a truly exceptional case.  He thought that the appellant was fortunate not to be removed in 1999 when her application for leave to remain as a student was refused, and that she had remained in the United Kingdom unlawfully for two years until the date of her marriage.  Her friends could maintain contact by letters, telephone calls and mutual visits, and he found, in the alternative, that she had not shown that she had established private and family life in the United Kingdom, and/or that she could not carry on such private and family life either with her husband in Portugal or with her mother and siblings in Kenya.  He therefore dismissed the appeal.

8.	The appellant sought reconsideration of this decision.  She argued that there was evidence before the Immigration Judge to show that she fulfilled the requirements of Regulation 10 of the Regulations.  Reference was made to the fact that, prior to her husband returning to Portugal in May 2005, the appellant was undertaking a nine month course at the Kensington Temple London City Church’s School of Leaders and had also completed a number of short courses with her part-time employer, the Oxleas NHS Trust.  Also, at the time of her husband’s return to Portugal, she had already been accepted onto a three year Diploma course in Mental Health Nursing at the University of Greenwich which commenced in May 2005, marginally after her husband’s return.  It was argued, as a consequence, that the appellant fell within the letter and the spirit of the EEA Regulations.

9.	It was also argued in the grounds that the Immigration Judge did not deal properly with the Article 8 issue.  The appellant had lived in the United Kingdom for over twelve years and for only a relatively short period of that time had her presence been unlawful.  The couple continued to regard themselves as married and not separated and returning her to Kenya would be a very serious interference with her private and family life in a country where, by definition, her husband would not be able to exercise his Treaty rights.  In the alternative, if the appeal under the EEA Regulations failed, it could only be by the most slender of margins and such cases were capable of showing the necessary exceptional circumstances, and in this regard reference was made to R (Lekstaka) v IAT and SSHD [2005] EWHC 745 (Admin).

10.	A Senior Immigration Judge considered this application and concluded that no arguably material error of law in the determination had been shown.  The appellant renewed her application to the High Court, and, on 2 November 2007, the judge ordered reconsideration.  He commented that the Immigration Judge was clearly right to draw a distinction between a person having been conditionally accepted for a course and actually “attending” that course.  But the Immigration Judge had made no finding as to whether the conditions for acceptance had been satisfied as at April 2005.  It was arguable that a literalist approach was not appropriate in the case of a student who had been unequivocally accepted on a course, particularly if it was to start imminently.  Nor were there any findings as to exactly when in April the appellant’s husband left or when in May the course started and, theoretically, the difference could have been as little as a day.  In addition, the judge considered that there was a point as to whether the appellant’s husband had necessarily ceased to reside in the United Kingdom on the day when he left the country if he had initially left in order to attend to a family emergency with the intention of returning shortly and only subsequently decided not to come back.  It was arguable that it was only at the latter date that he ceased to reside in the United Kingdom.  As far as the judge could see, the evidence concerning the Kensington Temple City Church’s School of Leaders was not before the Immigration Judge.  He was unsure that there was any room for argument as to error in the assessment of the Article 8 claim.  He noted, however, that the Immigration Judge’s reasoning was extremely brief and the use of the language of “exceptionality” might suggest a wrong approach on his part.

11.	The hearing before me took place on 16 January 2008.  Mr B Hawkin, instructed by Morgan Hall, Solicitors, appeared on behalf of the appellant.  Mr J McGirr appeared on behalf of the Secretary of State.

12.	Mr Hawkin referred to the very close proximity between the appellant’s husband’s departure and her starting the course and the fact that, as was suggested by the High Court judge, arguably the literal approach was not appropriate.  With regard to the departure of the appellant’s husband, this would not necessarily have caused him to fall outside the protection of the Regulations.  In this regard, Mr Hawkin referred to Regulation 3, which is concerned with continuity of residence, and argued that in particular 3(2)(c), and also 3(2)(a) were of importance.  This supported the view of the High Court judge that various matters might be such as not to affect continuity of residence.  As regards Article 8, the exceptionality approach had been considered and that was an error of law, as had been said by the House of Lords in Huang.

13.	In his submissions Mr McGirr argued that the order for reconsideration was perhaps rather generous in that the judge had considered whether there might be an error of law and not whether it might be material.  It might be that the initial refusal by the Senior Immigration Judge was not flawed.  The Immigration Judge had made findings at paragraphs 9 to 11 concerning the domestic circumstances of the appellant and the findings were open to him.  The fact of an alternative argument did not mean the original decision was wrong in law.  The High Court judge had not really taken issue with the Article 8 findings.

14.	By way of reply, Mr Hawkin argued that the fact that the husband had physically left the country did not necessarily mean he had ceased to reside in it.  There was only a short period of time between the husband leaving the country and the appellant embarking on her course.  The Immigration Judge erred at paragraph 11 of the determination, in saying that the appellant’s representative was wrong to say that there was no requirement for the spouse to be present in the United Kingdom in order to be a qualified person.  It could be correct, depending upon the period being looked at.  It was not correct, as the Immigration Judge said, to state that there was no dispute that the husband ceased to be a qualified person when he left the United Kingdom in April 2005.  Even if the evidence about the other course was not before the Immigration Judge, there was evidence to demonstrate that she was doing that course and that was to be found in the bundle.

15.	I reserved my determination.

16.	It is clearly appropriate at the outset to set out the wording of the relevant parts of the Immigration (European Economic Area) Regulations 2006.  Regulation 10, insofar as appropriate, states as follows:

“10.	(3) 	A person satisfies the conditions in this paragraph if—
(a)	he is the direct descendant of—
(i) a qualified person who has died;

(ii) a person who ceased to be a qualified person on ceasing to reside in the United Kingdom; or

(iii) the person who was the spouse or civil partner of the qualified person mentioned in sub-paragraph (i) when he died or is the spouse or civil partner of the person mentioned in sub-paragraph (ii); and
(b) 	he was attending an educational course in the United Kingdom immediately before the qualified person died or ceased to be a qualified person and continues to attend such a course.”

17.	I raised at the outset of Mr Hawkin’s submissions the question of whether in fact the appellant could be said to fall within this paragraph of the Regulations at all.  As it seemed to me, the Regulation appeared to require a person, if they wished to fall within Regulation 10(3), to be the direct descendant of a person, coming within one of the three sub-paragraphs to sub-paragraph (a), and to fulfil the educational requirement as set out at sub-paragraph (b).  As I understood him, Mr Hawkin argued that, though the drafting was clumsy, the use of the word “or” at the end of Regulation 10(3)(a)(ii) effectively separated out sub-paragraph (a) from sub-paragraph (b).

18.	I do not agree.  It seems to me clear that sub-paragraphs (i), (ii) and (iii) define the three categories of person of whom a person can be a direct descendant in order to fall within the requirements of paragraph (a).  The use of the word “and” at the end of sub-paragraph (iii) can, in my view, only be seen as establishing sub-paragraph (b) as a further requirement to be satisfied in the case of a person who has satisfied the requirements of paragraph (a) in one of the ways set out in one of the various sub-paragraphs that follow.  Although, as it seems to me, this is a clear point of statutory interpretation, some further support for this interpretation can be found in Council Directive 2004/38/EC, from which these Regulations are derived, at Article 12.  There we find the following:

“3.	The Union citizen’s departure from the host Member State or his/her death shall not entail loss of the right of residence of his/her children or of the parent who has actual custody of the children, irrespective of nationality, if the children residing in the host Member State are enrolled at an educational establishment, for the purpose of studying there, until the completion of their studies.”

19.	This seems to me to indicate the essential ambit of Regulation 10(3) in the relevant part of the parent Directive.  The remarks of the Tribunal in RG (EEA Regulations – extended family members) Sri Lanka [2007] UKAIT 00034 at paragraph 8, albeit in a somewhat different context, are helpful in relation to this issue also.

20.	It follows from this that the appellant cannot satisfy the requirements of Regulation 10 since she is clearly not the direct descendant of her husband.  The Regulation is not intended to provide protection to a person in the position of the appellant.

21.	Even if I am wrong in that regard, I do not, with all respect to the judge, see how any approach other than a literal approach to the statutory wording can be employed in this case.  The appellant’s husband left the United Kingdom in April 2005, and the appellant embarked upon her course at the University of Greenwich in May 2005.  I do not think that a person can be said to be attending an educational course at any time before they embark upon that course, at least to the extent of appearing and registering for that course.  Some indirect support for this view can perhaps be gleaned from paragraph 57 of HC 395 concerning the requirements for leave to enter as a student.  This provision goes into much greater detail than does Regulation 10(3)(b) as to the various requirements which include acceptance for a course of study and the nature of the institution that would fall within this Rule, the ability and intention to follow a course as set out in the Rule, and other provisions concerning their intentions and ability to meet the cost of the course and accommodation.  If the draftsman of the Regulation had wished to extend its ambit to a person who had been accepted, even unconditionally, onto a course, then I can see no reason why that would not have been done.  A university applicant in the United Kingdom who has successfully met the requirements of their university of choice by their performance at Advanced Level could not be said, between the date of acknowledgement that they had met the required grades and registration at the university, to be attending that university.  To my mind, it makes no difference whether there was even as little as a day between the appellant’s husband’s departure and her embarking upon the course.  The fact of the matter is that she was not attending such a course immediately before her husband ceased to be a qualified person.

22.	As regards the question of whether he might have retained some intention to return and therefore did not cease to reside in the United Kingdom, I do not consider that Regulation 3, to which Mr Hawkin referred, assists the appellant in this regard.  It is clear from Regulation 3(1) that it applies for the purpose of calculating periods of continuous residence in the United Kingdom under Regulation 5(1) and Regulation 15, neither of which is applicable to the instant appeal.  The fact that, with regard to those particular provisions, continuity of residence is not affected by periods of absence from the United Kingdom, which, under Regulation 3(2)(a), do not exceed six months in total in a year or, under Regulation 3(2)(c), any one absence from the United Kingdom not exceeding twelve months for an important reason such as pregnancy and childbirth, serious illness, study or vocational training or an overseas posting, does not seem to me to be germane to the situation in this case when there is no evidence of any intention of the appellant’s husband to return shortly, having left in order to attend to a family emergency.  The appellant did not provide any evidence to that effect, and I think it would be wrong to speculate as to her husband’s intentions in the absence of such evidence.

23.	Therefore, even on this alternative basis, I do not consider that the appellant, on the evidence before the Immigration Judge, can be said to have been in a position to satisfy the requirements of Regulation 10(3) of the 2006 Regulations and her situation was not claimed to fall within any other provision of the Regulations.

24.	With regard to the point made in the grounds and referred to by Mr Hawkin concerning the nine month course at the Kensington Temple City Church’s School of Leaders, there was no evidence about this before the Immigration Judge, as a search of the file revealed.  Documentation has now been provided concerning this course.  There is reference in a letter from the Kensington Temple London City Church, apparently to the appellant, although it is addressed “Dear Student”, and dated 28 September 2004 welcoming her to the new School of Leaders and the Advanced School of Leaders.  There is no detail, however, as to the nature of the course and the extent of student commitment required.  There is reference in a subsequent letter of 13 November 2004 to “a feast of teaching, learning and growing – in our regular weekly classes”, and a reference to examinations and weekly homework.  This documentation was not, however, before the Immigration Judge and failure to refer to it can in no sense be said to amount to an error of law on the Immigration Judge’s part.  There must, in any event, be some doubt as to whether that could amount to an educational course within the meaning of the Regulations.  Regulation 10(7) says the following:

“(7)	In this Regulation, ‘educational course’ means a course within the scope of Article 12 of Council Regulation (EEC) No. 1612/68 on freedom of movement for workers.”

25.	Article 12 of Regulation (EEC) No.1612/68 states the following:

“The children of a national of a member state who is or has been employed in the territory of another member state shall be admitted to that state’s general educational, apprenticeship and vocational training courses under the same conditions as the nationals of that state, if such children are residing in its territory.

Member states shall encourage all efforts to enable such children to attend these courses under the best possible conditions.”

26.	It seems unlikely that the course at the Kensington Temple London City Church’s School of Leaders could be said to be one of the United Kingdom’s general educational, apprenticeship and vocational training courses, but, in any event, as I have set out above, this evidence was not before the Immigration Judge and his decision cannot be said to be materially in error as a consequence of failing to take it into account.  And, in any event, this has to be seen in the context of my findings about the inapplicability of Regulation 10 to the facts of this case.

27.	There remains the Article 8 issue.  The High Court judge was understandably somewhat lukewarm about this, but bore in mind that the reasoning was extremely brief and the use of the language of exceptionality arguably indicated a wrong approach by the Immigration Judge.

28.	The reference to exceptionality was a response to a submission by the appellant’s representative.  The Immigration Judge by no means, however, tied his decision exclusively to that point.  He noted that the appellant had remained in the United Kingdom unlawfully for two years until the date of her marriage, commenting that she was fortunate not to be removed in 1999, and noted that her friends could maintain contact by letters, telephone calls and mutual visits.  Her husband is in Portugal and her mother and five brothers are in Kenya.  The reason why it seems to be suggested that family life with her husband could not be maintained in Portugal is because she does not speak much Portuguese and wishes to continue her studies.  Those can, in no sense, be properly regarded as insurmountable obstacles to family life being carried on in Portugal, and I do not consider that it would be unreasonable to expect the appellant to do that.  She has no family life in the United Kingdom, in the absence of her husband and her immediate family members, and the Immigration Judge was entitled to find, with regard to private life, that she could maintain contact by letters, telephone calls and mutual visits with her friends.  Accordingly, I consider that there is no material error in the findings on Article 8.  I therefore conclude that, though the Immigration Judge erred in considering that Regulation 10 of the EEA Regulations was applicable to this case, that was not a material error since he dismissed the appellant’s appeal in that regard.  Nor did he materially err in dismissing the appeal under Article 8.  The decision dismissing this appeal is maintained.

Signed								Date

Senior Immigration Judge Allen