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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

24 JUN 2014

R (On the Application Of Benjamin & Anor) v Secretary of State for the Home Department [2014] EWHC 1396 (Admin)

R (On the Application Of Benjamin & Anor) v Secretary of State for the Home Department [2014] EWHC 1396 (Admin)

The Claimants’ claims were stayed pending their pursuance of appeals against the Defendant’s refusal to grant the second Claimant entry to the UK. Interim relief was refused as mandatory orders could only be granted in exceptional circumstances.

15 May 2014

Queen’s Bench Division, Administrative Court

Lang J

(1) The Claimants, a UK citizen and a Kenyan citizen, married in 2006. They lived together in France, and had three British citizen children. They sought judicial review of the Defendant’s decision to refuse to grant them an EEA family permit and entry clearance for the second Claimant to enter and live in the UK with her husband and children.

(2) In 2009, the Claimants obtained a ‘carte de sejour’, which confirmed their permanent right of residence in France. Due to their son being severely autistic and epileptic, the first Claimant moved with him to London in September 2012, so that he could receive treatment that he could not receive in France. The second Claimant was refused visit visas from May 2013 on the basis that due to her husband and son being in the UK, she was likely to unlawfully overstay. The Defendant refused entry to the UK under the Immigration (European Economic Area) Regulations 2006 on the basis that the first Claimant failed to demonstrate that he had been employed or self-employed in France.

(3) The Claimants contended that as they had permanent residence under Article 16 of Directive 2004/338, they were no longer subject to qualifying conditions.

(4) This expedited hearing addressed the Defendant’s refusal to grant an EEA family permit, entry clearance at Calais and the Court of Appeal’s refusal to grant them an interim remedy.

(5) The Defendant contended that the judicial review claims should be dismissed on the basis that the Claimants should pursue their statutory remedy by way of appeal.

(6) HELD: The Court agreed with the Defendant, finding that the claims should be stayed pending determination of the statutory right of appeal, thereby preserving the claim for damages. The Court noted that although the Claimants had not applied for their appeal to be expedited, they had a right to do so.

(7) The Court considered that the evidence provided by the first Claimant as to his self-employment was missing, the first Claimant only providing general evidence, rather than specific items such as tax returns and bank statements.

(8) The Court held that the First tier Tribunal was best placed to hear the evidence, in person from the first Claimant, and make a proper analysis of the merits of the appeal.

(9) The Court confirmed however that findings of fact were required before a conclusion could be reached as to whether the Claimants had a permanent right of residence under Article 16.

(10) The Claimants were given permission to restore proceedings within one month of judgment in the case of Case C-202/13 McCarthy v Secretary of State for the Home Department, in which the UK’s approach to residence cards issued by EU member States was to be addressed. The Court also granted liberty to lift the stays within one month of the final determination of the Claimants appeals.

(11) The Court would not grant a mandatory injunction granting the Claimants interim relief in the form of granting the second Claimant leave to enter the UK. Such mandatory orders were said to be exceptional, and the Defendant was entitled to be concerned that it would be difficult to enforce removal of the second Claimant if her appeal later failed.

Claims stayed.

Interim relief refused.

Key paragraphs

[11] – Stayed.

[15] – Lack evidence.

[16] – Self- sufficiency.

[17] – Tribunal best placed.

[22] – Finding of fact.

[24] – Permanent right of residence.

[30] – Liberty to apply.

[32] – Mandatory injunction.

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