Jurisprudence: EU child, discrimination by nationality and best interest of the child (discussing EU law and caselaw)
The case discusses is an English national permit but in the ruling a lot of EU passes the bar.
Discussion
Best interests of the child
18.
A child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent: see
Zoumbas v Secretary of State for the Home Department [2013] UKSC 74 at [10] per Lord Hodge. There must be a full consideration of all relevant factors.
19.
The Court of Appeal developed the context for any assessment of the best interests of a child in
EV (Philippines) v Secretary of State for the Home Department [2014] EWCA Civ 874 in these terms, at [58]:
"...the
assessment of the best interests of the children must be made on the
basis that the facts are as they are in the real world. If one parent
has no right to remain, but the other parent does, that is the
background against which the assessment is conducted. If neither parent
has the right to remain, then that is the background against which the
assessment is conducted. Thus the ultimate question will be: is it
reasonable to expect the child to follow the parent with no right to
remain to the country of origin?"
The "real world" context test was endorsed by the Supreme Court in
KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53 at [19].
20.
I
find that the judge failed to apply the above principles when addressing
the best interests of the appellant's daughter. The only operative
analysis the judge engaged in concerning the best interests of the
appellant's daughter was to highlight his findings that the appellant
and his partner had "conspired" to bring an unmeritorious asylum claim:
see [116], quoted at paragraph
5
,
above. The adverse findings made by the judge against the appellant and
his partner were of no relevance to his assessment of the best interests
of the appellant's daughter. Yet he appeared to hold the parents'
misconduct against the daughter. Nor did he address the "real world"
context. These were errors of law.
21.
I must address the second ground of appeal to determine the materiality of the above errors.
The definition of "qualifying child" and EU citizen children
22.
Mr
Bahja is correct to highlight the fact that section 117B(6) of the 2002
Act is not engaged by an EU citizen child in the same way as it is by a
British citizen child. A British citizen child is a "qualifying child"
automatically. By contrast, an EU citizen child (like any other
non-British child) will only be a "qualifying child" if they have
resided here for a continuous period of seven years or more.
23.
I
should note that Mr Bahja did not submit that the distinction between EU
and British children contravenes other international legal obligations
of the United Kingdom (for example, Article 14 ECHR) or domestic
anti-discrimination law, such as the Equality Act 2010. The sole focus
of his case was that section 117B(6) contravenes Article 18 TFEU.
24.
Mr
Bahja contends that section 117B(6) must be "read down" to include EU
citizen children, to avoid direct, nationality-based discrimination in
contravention of EU law.
25.
Two preliminary observations are necessary.
26.
First,
the submission was not raised before the First-tier Tribunal. It will
not usually be an error of law for the First-tier Tribunal not to
address a submission it was not invited to consider. See
Hickey v Secretary of State for Work and Pensions [2018] EWCA Civ 851 at [52], per Coulson LJ.
27.
The submission is not, as Mr Bahja contends, "
Robinson obvious". If it had been, it would have been an error of
the judge not to consider the point, even though the parties had not
raised it. "
Robinson obvious" has its origins in
R v Secretary of State for The Home Department, Ex parte Robinson [1998] QB 929,
referring to the obligation on a tribunal to consider an "obvious"
point of refugee law not raised by an appellant. At 946, Lord Woolf MR
said, "[w]hen we refer to an obvious point we mean a point which has a
strong prospect of success if it is argued."
28.
The high threshold for a Robinson
-obvious point was underlined recently in
AZ (error of law: jurisdiction; PTA practice) Iran [2018] UKUT 245 (IAC) at [61] to [74], and in
Durueke (PTA: AZ applied, proper approach) [2019] UKUT 197 (IAC).
29.
The
appellant's submissions in the present matter are in different
territory. It is not "obvious" that the definition of "qualifying child"
should be read so as to encompass an EU citizen child resident for
fewer than seven years. For the reasons set out below, that submission
is without merit.
30.
Secondly,
the jurisdiction of the First-tier Tribunal was, in relation to the
Article 8 limb of the case, to consider whether the decision would be
unlawful under section 6 of the Human Rights Act 1998: see the ground of
appeal contained in section 84(1)(c) of the 2002 Act. By contrast, the
primary thrust of Mr Bahja's submission is that the approach taken by
Parliament in section 117D(1) of the 2002 Act was such that the
EU law rights of the appellant's daughter were breached. That is
an entirely different argument, advanced pursuant to a separate legal
framework that sits within a different international legal order (the EU
Treaties, rather than the European Convention on Human Rights),
relating primarily to the EU law rights enjoyed not by the appellant,
but by his daughter.
31.
While
it is possible to raise, within the confines of an appeal before the
First-tier Tribunal under the 2002 Act, a point of law concerning the EU
Treaties, that process was not followed before the judge below. An
appellant may raise an EU law point in response to a notice served under
section 120 of the 2002 Act, or as a "new matter", with the consent of
the Secretary of State: see Schedule 2(2) to the 2016 Regulations and
Oksuzoglu (EEA appeal - "new matter") [2018] UKUT 385 (IAC).
32.
Given
the appellant did not seek to raise the novel EU law point on which he
now relies previously, either in response to the Secretary of State's
notice issued to him under section 120 of the 2002 Act on 15 January
2015, or as a "new matter" before the First-tier Tribunal, it follows
that the First-tier Tribunal lacked the jurisdiction to consider whether
the EU ground of appeal now relied upon by the appellant was made out.
The prospect of the appellant enjoying a right to reside on an
unspecified EU law basis was canvassed before the judge, but he lacked
the jurisdiction to consider it. The same restriction is not engaged in
the Upper Tribunal, as a superior court of record: see
Birch (Precariousness and mistake; new matters) [2020] UKUT 86 (IAC).
33.
It
follows that the judge's purported findings concerning the appellant's
partner's work and whether she was a "qualified person" under regulation
6 of the 2016 Regulations were reached without jurisdiction. That was
an error of law.
Nationality discrimination under EU law
34.
Turning
to the substantive submission under the second ground, it is necessary
to recall that the appellant is not an EU citizen. He is Iranian. The
rights conferred by the EU Treaties on EU citizens, including the
protection against nationality-based discrimination enjoyed by EU
citizens under Article 18 TFEU and Article 24(1) of Directive 2004/38/EC
are not conferred upon, or enjoyed by, third country nationals who are
outside the scope of EU law.
35.
Although the appellant relies on
Nouazli in order to substantiate his claim of discrimination, it is of no assistance. The issue in
Nouazli was whether Mr Nouazli, an Algerian citizen with EU free
movement rights in the United Kingdom acquired by marriage to his French
wife, suffered discrimination contrary to Article 18 TFEU on account of
his detention under the Immigration (European Economic Area
Regulations) 2006 in circumstances where no equivalent power of
detention would have been available had he been a person subject to
immigration control under the Immigration Act 1971. The power in
question was to detain on an anticipatory basis, pending a full
deportation decision being taken. There was no power of so-called
"anticipatory detention" under the 1971 Act for third country nationals
subject to immigration control. Mr Nouazli argued that he was subject to
a more draconian detention regime as a result of his EU law rights than
other third country nationals subject to immigration control would
face, contrary to Article 18 TFEU.
36.
The
Supreme Court held that Article 18 TFEU was only concerned with
discrimination between EU citizens and citizens of the host Member
State. The EU law prohibition against nationality-based discrimination
did not apply in relation to rights enjoyed by EU citizens (and, by
extension under Article 24(1) of Directive 2004/38/EC, their third
country family members residing under the directive) when compared with
those wholly outside the EU regime. At [43], Lord Clarke noted that in
Vatsouras v Arbeitsgemeinschaft (AGRE) Nürnberg 900 (Joined Cases C-22/08 and C-23/08) [2009] All ER (EC) 747, the Court of Justice of the European Union ("the CJEU") held at [52] that what is now Article 18 TFEU:
"concerns
situations coming within the scope of Community law in which a national
of one Member State suffers discriminatory treatment in relation to
nationals of another Member State solely on the basis of his nationality
and is not intended to apply to cases of a possible difference in
treatment between nationals of Member States and nationals of non-member
countries."
Vatsouras
concerned whether it was discriminatory for a Member State to confer
social benefits on certain third country nationals but not on EU
citizens residing there. The case was not confined to its facts, held
Lord Clarke. It was setting out general principles: see [43]. It remains
good EU law; see, for example,
Opinion 1/15 Re CETA Investment Court System (Belgium and others) at [169], handed down by the CJEU on 30 April 2019.
37.
Against
that background, at [51], Lord Clarke highlighted the limited scope of
Article 24(1) of Directive 2004/38/EC. Lord Clarke said that Article
24(1):
"...makes
clear that the relevant comparators for the purposes of the Directive
are the nationals of the host member state but [it] does not include and
is not concerned with discrimination as regards third country nationals
who fall entirely outside the scope of EU law.
"
38.
Thus,
it was not open to Mr Nouazli to seek to compare his liability to
anticipatory detention with the absence of a corresponding power of
detention for those subject to immigration control under the 1971 Act.
Such persons were not relevant comparators for the purposes of EU
anti-discrimination law; they were wholly outside the scope of EU law.
Pursuant to the way the Advocate General summarised the position in
Vatsouras at [AG66]:
"[Article
18] TFEU seeks to eliminate discrimination between Community citizens
and nationals of the host member state but does not offer guidelines for
eliminating the discrimination complained of by the referring court."
39.
It follows that the issue at the heart of
Nouazli's anti-discrimination claim is of no assistance to the
appellant; it concerns a different form of alleged discrimination which,
in the event, was held not to be discrimination contrary to the EU
Treaties at all.
40.
The
appellant's complaint must therefore be analysed on the basis that he
contends that it is his Polish daughter who suffers nationality
discrimination when compared to the hypothetical British qualifying
child. Put this way, submits Mr Bahja, the daughter is potentially at
risk of her father being removed, even if it would not be reasonable for
her to leave the country, in circumstances in which the removal of a
person in a genuine and subsisting parental relationship with a British
citizen child would be regarded as not being in the public interest, if
it were not reasonable to expect the child to leave.
41.
For the reasons set out below, this submission is without merit.
Discrimination on grounds of nationality: scope of EU law?
43.
Article
24(1) of Directive 2004/38/EC gives expression to the EU prohibition
against nationality-based discrimination in the specific context of the
free movement of persons. It provides that Union citizens and their
"family members" residing in the host Member State pursuant to the
residence rights it confers, "shall enjoy equal treatment with the
nationals of that Member State
within the scope of the Treaty". The emphasis added demonstrates
the scope of the principle, which is limited to those areas covered by
the EU Treaties, reflecting the delineation of competences between EU
Member States and the EU. The context for the above provision is
provided by Recital (20) to the Directive, again with emphasis added:
"In
accordance with the prohibition of discrimination on grounds of
nationality, all Union citizens and their family members residing in a
Member State on the basis of this Directive should enjoy, in that Member
State, equal treatment with
nationals in areas covered by the Treaty, subject to such specific provisions as are expressly provided for in the Treaty and secondary law."
44.
In
the free movement of persons context, the CJEU has underlined the
limitation of EU rules in this area to situations within the scope of EU
law. The court noted in
McCarthy v Secretary of State for the Home Department Case C-434/09 at [45] that:
"...it
is settled case law that the Treaty rules governing freedom of movement
for persons and the measures adopted to implement them cannot be
applied to situations which have no factor linking them with any of the
situations governed by EU law and which are confined in all relevant
respects within a single Member State (see, to that effect,
Government of the French Community v Flemish Government (C-216/06) [2008] ECR I-1683; [2008] 2 C.M.L.R. 31 at [33], and
Metock [2008] 3 CMLR 39 at [77])."
45.
The
primary question for consideration, therefore, is whether the
appellant's daughter's relationship with him is a situation that is
"within the scope" of the EU Treaties? Or, by contrast, is there "no
factor" linking the appellant's relationship with his daughter "to any
of the situations governed by EU law" meaning that it is "confined [from
the EU law perspective] in all relevant respects within a single Member
State"? The term the CJEU often uses to describe such a scenario is a
"wholly internal situation" (see, for example,
KA v Belgium Case C-82/16 and the authorities cited at [30]).
46.
The
appellant's daughter's residence will, at all material times, have been
governed by Directive 2004/38/EC and the EU Treaties. Directive
2004/38/EC does not classify the appellant as a "family member" of his
daughter. Although ordinarily a broad term, "family member" has a
limited scope as defined by the directive. Article 2(2) defines the term
"family member" to include spouses, registered partners, direct
descendants under the age of 21, and dependent direct relatives in the
ascending line. The appellant is not, under that definition, a "family
member" of his daughter, and his relationship with her is not "within
the scope of the Treaties" on that basis.
47.
The
appellant has not been recognised by the Secretary of State as a
"durable partner" of his Polish partner, under Article 3(2)(b). Nor was
he married to his partner or in a registered partnership, meaning he
cannot be a "family member" on that account. Accordingly, the
appellant's family life situation is not within the scope of Directive
2004/38/EC, and cannot be within the scope of the Treaties on that
basis.
48.
There
are, of course, situations when a third country national may enjoy a
right to reside conferred directly by the EU Treaties, in order to
ensure an EU citizen is not deprived of the benefits of Union
citizenship: see the doctrine established by
Zambrano Case C-34/09. The underlying rationale was described as
the "effective citizenship principle" by Lady Justice Arden (as she then
was) in
Sanneh v Secretary of State for Work and Pensions [2015] EWCA Civ 49 at [4]. At [5], she said:
"The
effective citizenship principle means that member states may not
indirectly remove the benefits of a person's status as an EU citizen."
49.
Chavez-Vilchez and others v Raad van bestuur van de Sociale verzekeringsbank and others
Case C-133/15 was a continuation of the
Zambrano line of authority. The CJEU confirmed that the residence
of third country nationals falls within the competence of the Member
States, save for those situations where a third country national's
continued presence is necessary to secure the continued enjoyment of
Union citizenship rights of an EU citizen. The court held, with emphasis
added:
"63.
In this connection, the court has already held that there are very
specific situations in which... a right of residence must nevertheless
be granted to a third-country national who is a family member of that
Union citizen, since the effectiveness of Union citizenship would
otherwise be undermined, if, as a consequence of refusal of such a
right, that citizen would be obliged in practice to leave the territory
of the European Union as a whole, thus depriving him of the genuine
enjoyment of the substance of the rights conferred by that status:
Ruiz Zambrano's case, paras 43-44;
Dereci's case, paras 66-67;
Rendón MarÃn's case, para 74 and
S v Secretary of State for the Home Department, para 29.
64.
The situations referred to in the preceding paragraph have the common
feature that, although they are governed by legislation which falls, a
priori,
within the competence of the member states, namely legislation on the
right of entry and residence of third-country nationals outside the
scope of provisions of EU secondary legislation, which provide for the grant of such a right under certain conditions,
those situations none the less have an intrinsic connection with the freedom of movement
and residence of a Union citizen, which precludes the right of entry
and residence from being refused to those nationals in the member state
of residence of that citizen, in order to avoid interference with that
freedom:
Rendón MarÃn's case, para 75 and
S v Secretary of State for the Home Department, para 30 and the case law cited."
50.
Two propositions are clear from the above extract.
51.
First,
residence rights of third country nationals outside the scope of EU
secondary legislation (for example, Directive 2004/38/EC) ordinarily
fall within the competence of the Member States and therefore will not
be within the scope of the Treaties. As a consequence, Member States are
free to enact domestic legislation in such areas, provided in doing so
they have regard to situations covered by EU law upon which there may be
an impact (see
Rottman v Freistaat Bayern Case C-135/08 at [41]).
52.
Secondly,
it is only where a national measure would have the effect of depriving a
Union citizen of the genuine enjoyment of the substance of the rights
concerned by the virtue of their status that a right to reside must be
conferred on the third country national. The third country national's
continued presence in the host Member State must be required to avoid an
interference with the substance of the Union citizenship rights of the
EU citizen in question. Rights to reside on this basis are often termed
"derivative" rights, as the third country national's right to reside
derives from that of a Union citizen. In the case of minors, the
assessment of the required presence of dependency must be based on an
assessment of the best interests of the child, including the child's
age, physical and emotional development, the emotional ties to each
parent, and the risks which separation from the third country national
parent might entail for that child's equilibrium. See the third
unnumbered bullet point of paragraph [2] of the operative part of the
judgment of the CJEU in
KA v Belgium, as applied by the Supreme Court in
Patel v Secretary of State for the Home Department [2019] UKSC 59 at [28] to [30], drawing on
Chavez-Vilchez at [71].
53.
Applying
the above considerations to the present matter, I recall that the
appellant is a third country national with no leave to remain in the
United Kingdom. He is not a "family member" under Directive 2004/38/EC.
The mere fact that the appellant's daughter is an EU citizen who may be
residing in the United Kingdom on the basis of EU law is not a
sufficient nexus with EU law to extend to bring the family life
situation of the appellant within the scope of the Treaties, given the
non-inclusion of the appellant as a "family member" of his daughter in
Directive 2004/38/EC, and the fact that his continued residence has not
been recognised on a derivative rights basis. Mr Bahja did not take me
to any EU legislation concerning family unification or third country
residence rights in relation to which the United Kingdom has exercised
its ability to opt-in, or that otherwise applies to the United Kingdom,
which is engaged in relation to the appellant. The appellant's family
life with his daughter is a wholly internal situation.
54.
The
fact that (an entirely separate) EU avenue is potentially open to the
appellant highlights the futility of his nationality discrimination
submissions and underlines the difficulties inherent in comparing the EU
residence regime to the domestic immigration control equivalent.
55.
If
the appellant is successful in gaining recognition of any claimed EU
law-based derivative right to reside, that will of course bring his
situation "within the scope of the Treaties", potentially removing the
barrier he currently faces to relying on his daughter's claimed
discrimination contrary to Article 18 TFEU. However, by definition, if
such a derivative (or other) right to reside is recognised, his daughter
will not face a discriminatory situation when compared with a
hypothetical British qualifying child. The discrimination the appellant
complains that his daughter currently faces will have vanished. The
appellant would enjoy a right to reside, and his daughter would be able
to enjoy his continued presence in this country.
56.
In
those circumstances, far from experiencing less favourable treatment
than the hypothetical British qualifying child, the appellant's daughter
would enjoy more favourable treatment. The engagement of section
117B(6) only arises where a person faces possible removal, which would
not be a risk for her father, who would have secured a right to reside.
The hypothetical British child who enjoys the benefit of section 117B(6)
merely enjoys the ability for their parent not to be removed if it
would not be reasonable to expect the child to leave the United Kingdom.
By contrast, no such reasonableness considerations would arise under EU
law once the appellant had secured recognition of a derivative right to
reside.
57.
By
contrast, if the appellant is unsuccessful in securing recognition of a
derivative or other EU-based right to reside, it would confirm that his
situation is not "within the scope of the Treaties", preventing him from
relying on his daughter's putative nationality discrimination by proxy.
The position as at the date of the hearing below, of course, was that
the appellant had not even attempted to secure recognition of any form
of derivative right to reside through his daughter, and jurisdictionally
it was not the role of the judge to consider the issue.
58.
Accordingly,
whether the appellant is successful or unsuccessful in gaining
recognition of any claimed derivative right to reside, the fact that EU
law makes provision for him to attempt to do so demonstrates that the
discrimination he claims his daughter faces in breach of EU law is
incapable of being established within the confines of this human rights
appeal.
59.
It
follows that the difference in the application of section 117B(6) to the
appellant's Polish daughter and a hypothetical British qualifying child
is not within the scope of the Treaties, and, therefore, incapable of
amounting to nationality discrimination contrary to EU law. This is
fatal to Mr Bahja's submission. Accordingly, the judge did not fall into
error through his non-application of section 117B(6) to the Article 8
ECHR proportionality assessment.
See: https://www.bailii.org/uk/cases/UKUT/IAC/2020/224.html
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