VM (Zambia) v Secretary of State for the Home Department

An appellate tribunal addressing a materially raised EEA-rights issue must determine it or adjourn until the relevant application has been decided. It cannot simply dismiss the appeal because the issue depends on an undecided application.

Residence documents under the EEA Regulations 2006 are evidential. Residence rights arise under the Regulations themselves. Article 8 claims should not routinely be dismissed because the applicant could apply from abroad, and exceptional circumstances are not a prerequisite. A previous limited grant of discretionary leave does not create an entitlement to renewal.

The appellant, a Zambian national living in the United Kingdom, appealed against refusal of further leave to remain. An earlier tribunal decision had been set aside on reconsideration because it failed properly to address the proportionality of removing her under Article 8, particularly in relation to her partner.

By the fresh reconsideration, she had married her EEA-national partner. Both had applied for EEA residence documents. The tribunal declined to determine whether the husband had acquired EEA residence rights and dismissed the appeal. It also treated return to Zambia and an application for entry as a spouse as the appropriate course.

The issues were whether the tribunal had erred in its treatment of the EEA claim and Article 8 claim, and whether the Secretary of State had been required to explain why discretionary leave previously granted on medical grounds was not renewed.

1. Appeal allowed and remitted. The tribunal erred in law by dismissing the appeal without determining the EEA issue or adjourning it until the outstanding applications had been decided. The EEA issue was remitted for determination and the Article 8 issue for fresh determination if necessary.
2. The EEA Regulations 2006 made residence documents evidential rather than constitutive of residence rights. The appellant could therefore have a right of residence if her husband was a qualified person with an extended right under regulation 14 or had a permanent right under regulation 15.
3. A loss of a right under regulation 13 would not necessarily affect a separate right under regulation 14. The evidence did not make permanent residence plainly and obviously established, and the Court of Appeal would not determine that issue positively without adequate findings below. Remittal was appropriate.
4. The tribunal’s Article 8 approach was inconsistent with Chikwamba v SSHD [2008] UKHL 40. An appeal should not routinely be dismissed because the applicant could apply from abroad. The Article 8 issue was remitted, although the Secretary of State conceded that course.
5. Under Huang v SSHD [2007] 2 AC 167, an appellate immigration authority decides whether refusal of leave is unlawful on up-to-date facts. That did not require the Secretary of State to explain why a previous caseworker had reached a different discretionary decision. A limited grant of discretionary leave contained no representation that it would continue absent a material change of circumstances.
6. If practicable, the remitted matters should be heard with the appeals concerning the residence card and residence certificate.

• Court of Appeal (Civil Division) — [2009] EWCA Civ 521: appeal allowed and the EEA and Article 8 issues remitted.
• Asylum and Immigration Tribunal — second-stage reconsideration by Immigration Judge Rimington: appeal dismissed.
• Asylum and Immigration Tribunal — first-stage reconsideration: an error of law was found in the original tribunal’s treatment of Article 8 and the matter was re-listed.
• Asylum and Immigration Tribunal — original decision, promulgated 19 December 2007: appeal dismissed.