Party litigant success at the Court of Session

In a fairly remarkable case a party litigant has successfully judicially reviewed the Secretary of State's failure to provide him with a Certificate of Application whilst his application for a residence card was outstanding. The case is Adebayo Aina, Re Judicial Review [2015] CSOH 158. It is a fairly complex case, which makes it all the more impressive that Mr Aina was able to pursue it so effectively, though I am unaware if Mr Aina had assistance at any stage. It is also important to note that the Court of Session generally takes a sympathetic approach to party litigants, ensuring that they are not unnecessarily prevented from arguing their case by legal process of which they may be unaware. In addition counsel for the Secretary of State appears to have assisted the petitioner as best he could, in the best traditions of the Scottish bar.

Summarising the case is tough, but the broad facts are this. The petitioner had an unedifying immigration history, having been convicted of immigration related offences here in 2010 and deported in 2011. After that he met and married a British national in his home country. The couple then moved to Germany where they were intermittently employed. A son was born there and they were resident for, it seems, around a year.

The petitioner then applied for entry clearance and was refused, and then came in anyway. The petitioner then applied in country for a residence card, relying on regulation 9 of the European Economic Area Regulations 2006 and the 'Surinder Singh' route.

What followed was a complex series of refusals and appeals. All of which makes it even more impressive, from a legal standpoint, that the petitioner was able to prevail. In short the Home Office refused his application for a residence card on two general grounds, that he could not meet regulation 9 because of the relatively brief and transient nature of residence in Germany and that he posed a genuine, present and sufficiently serious threat to the fundamental interests of society (a term of art from the regulations). The petitioner appealed and the first Immigration Judge concluded that he lost on the first point, but won on the second (his crimes were serious, but not that serious). The Upper Tribunal allowed his appeal (for technical reasons to do with the type of decision issued) and the Secretary of State did not cross appeal. The matter therefore returned to the Secretary of State.

This was met with a second refusal, which essentially ignored the findings of the two tribunal decisions. This decision was also appealed and a second Immigration Judge dismissed the appeal, including because he erroneously relied upon the beefed up version of regulation 9 that was not applicable to the petitioner because of transitional provisions. The Upper Tribunal again allowed the petitioner's appeal and the matter has now for the third time been remitted to the Secretary of State.

As Lord Glennie comments, the litigation, whilst prolonged, has not been entirely worthless because:

"(1)        In the first place, it has now been established that the deportation order was unlawful and falls to be revoked.  It cannot legitimately form the basis of a further refusal. 

(2)        Secondly, though this has become apparent as much through this petition for judicial review as through the process of appeals through the FTT and the UT, it is now clear beyond doubt that the petitioner’s application for a residence card has to be determined on the basis of Regulation 9 of the EEA Regulations as they were in force when he made the application.  It would not be right to determine the application on the basis that the amended Regulation 9(2)(c) applies.  This is important because the terms of the Regulation then in force do not contain any reference to the centre of life having transferred to the EEA State where the petitioner’s wife resided as a worker or self-employed person.  The unamended Regulation says nothing about the length or quality of residence as a worker or self-employed person." 

However the petition was actually concerned with a second matter, that of the failure of the Secretary of State, throughout this complex and prolonged litigation, to issue a Certificate of Application (which permits employment meantime). One was issued, but they expire after 6 months. The failure to issue an updated one prevented, arguably, the petitioner from taking up employment. Lord Glennie found that this failure was inexcusable:

"Whatever may be the complexities on the question of what amount of residence and employment/self-employment in a Member State of which the Union citizen is not a national is required before a Union citizen is entitled to bring his spouse or other family member back to his home state when he returns there, none of that affects the very simple point (i) that a CoA must be issued immediately on receipt of an application for a residence card accompanied by the relevant supporting documents, and (ii) that it must remain in force or be renewed or replaced so as to cover the whole period until the application for a residence card is finally determined.  I do not regard reliance on the public policy exception in article 27 of Directive 2004/38 as tenable having regard to the very precise definition of the circumstances which may be taken into account and the assessment that has to be made.  That is so whether or not the deportation order was valid at the time it was made all was still in force at the time the petitioner entered the United Kingdom in 2013.  The relevant rules of European law on these narrow points are clear and precise.  I cannot judge whether the infringement of that rule was intentional or not.  But I do regard it as inexcusable." 

All in all a fascinating case which explores some key issues in EU law and which provides a scholarly review of the Surinder Singh jurisprudence. It may be that lawyers were involved at earlier stages- but the absence of counsel for the petitioner in the judicial review is notable, though as highlighted the Court of Session is generally at pains to ensure justice is seen to be done regardless.