Owusu, R (on the application of) v Secretary of State for the Home Department

Permission for judicial review should be granted where an immigration decision relies on a domestic provision that unlawfully fails to implement directly effective European Union rights. A family member within the relevant class may rely directly on Directive 2004/58/EC, including a direct descendant under 21. Those rights arise from community law itself and are not created by an executive decision recognising them. Immigration authorities must act within a reasonable period and cannot rely on the consequences of their own unlawful failure to apply the law. The court also indicated that immigration judges should disregard regulation 12(1)(b) in cases involving spouses and children under 21 of EEA nationals, and should give effect to the corresponding rights.

The claimant, a Ghanaian national, sought judicial review after being refused an entry document to join his Netherlands national mother in the United Kingdom. An immigration judge had found that he was a family member under 21 and entitled to admission, but considered regulation 12(1)(b) an obstacle. A previous judicial review application had not proceeded because it was thought that the immigration judge’s decision would secure admission. That approach proved ineffective. The renewed application concerned the lawfulness of regulation 12(1)(b), the effect of Directive 2004/58/EC and the consequences of the claimant having subsequently become over 21.

1. Permission. The renewed application for judicial review was granted permission. The court considered the challenge substantially more than arguable, although it did not convert the permission decision into a final merits hearing. Detailed grounds were not abridged, and the matter was directed to be listed urgently after the ordinary period.
2. Unlawful domestic provision. Regulation 12(1)(b) of the Immigration (European Economic Area) Regulations 2006 failed lawfully to transpose Directive 2004/58/EC. It was unlawful at least insofar as it affected spouses and direct descendants under 21 of EEA nationals. Immigration judges should apply the Directive directly in accordance with Metock C-12708.
3. Relevant entitlement. Article 2(2)(c) defined the relevant family members to include direct descendants under 21, and Article 3(1) applied the Directive to Union citizens and those family members. On the facts found by the immigration judge, the claimant had a community-law right to enter when he applied.
4. Direct enforceability and delay. Community law itself was the source of the claimant’s rights. The rights were not constituted by an executive decision recognising them. The defendant and agencies responsible for immigration decisions were required to give effect to the rights within a reasonable period.
5. Practical guidance. The court considered it highly unattractive and effectively untenable for the defendant to rely on the unlawful regulation or to require a fresh application which would be judged after the claimant had turned 21. The decision on permission was authorised for citation to immigration judges, with guidance to disregard regulation 12(1)(b) for the identified class and direct that the relevant document be issued where the entitlement was established.

The judgment describes an earlier judicial review decision by Mitting J, who considered further judicial review unnecessary because the claimant could present the immigration judge’s decision to the entry clearance officer. The renewed application was heard by Mr Justice Blake, who granted permission and gave directions for an urgent substantive hearing.