R (On the Application Of Benjamin & Anor) v Secretary of State for the Home Department  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
15 May 2014
Queen’s Bench Division,
(1) The Claimants, a
(2) In 2009, the Claimants obtained a ‘carte de sejour’, which confirmed their permanent right of residence in
(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
(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
(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
Interim relief refused.
 – Stayed.
 – Lack evidence.
 – Self- sufficiency.
 – Tribunal best placed.
 – Finding of fact.
 – Permanent right of residence.
 – Mandatory injunction.
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