FK ( Kenya) v Secretary of state for the Home department

Comprehensive sickness insurance is an integral and substantive condition of self-sufficiency under the Immigration (European Economic Area) Regulations 2006. It is not a mere formality. A dependent family member cannot obtain a permanent right of residence where the sponsoring EEA national has not exercised Treaty rights in accordance with the Regulations for the required five years.

For Article 8 purposes, adult family life requires more than the ordinary emotional ties between adult relatives. An Article 8 assessment will ordinarily be premature before a removal decision. Where it is nevertheless undertaken, an appellate challenge based only on the weight given to relevant factors raises no point of law absent perversity or another legal error.

The appellant, a Kenyan national, sought a permanent residence card as the dependent adult son of his Swiss-national mother. She claimed to be a self-sufficient EEA national, but had not provided evidence of comprehensive sickness insurance for herself and the appellant during the relevant five-year period.

Immigration Judge Froom dismissed the appeal. Following reconsideration ordered by Pitchford J, Immigration Judge Grant again dismissed the appeal under the Immigration (European Economic Area) Regulations 2006 and Article 8 of the European Convention on Human Rights. The appellant appealed to the Court of Appeal.

The central issues were whether the insurance requirement was merely formal, whether MRAX governed the case, and whether the tribunal had erred in its Article 8 findings on family life and proportionality.

1. Appeal dismissed unanimously. Lord Justice Sullivan, with whom Maurice Kay and Lloyd LJJ agreed, held that the appellant had no right of permanent residence under the Immigration (European Economic Area) Regulations 2006. His mother had not resided in the United Kingdom in accordance with the Regulations for five continuous years.

2. Comprehensive sickness insurance was an integral part of self-sufficiency, not an entry-control formality. A person relying on the National Health Service was no more self-sufficient than one whose financial resources were inadequate. The policy produced shortly before the hearing was not comprehensive and had not operated for five years. The appellant therefore could not derive a permanent residence right from his mother.

3. MRAX (Free Movement of Persons) [2002] ECR 1-5691 was distinguishable. It concerned a family member of a person otherwise exercising Treaty rights whose residence was obstructed by a domestic formality concerning lawful entry. Here, the sponsor had not exercised Treaty rights during the relevant period because the substantive insurance condition was unmet.

4. The Article 8 issue was, at best, premature because the refusal of a residence card was not a removal decision. A later removal decision would permit assessment of the relevant circumstances at that time. However, the appellant had invited the tribunal to decide Article 8, and could not complain that it had done so.

5. The tribunal was entitled, applying Kugathas v SSHD [2003] EWCA Civ 31, to find no protected family life between this healthy adult appellant and his mother, stepfather and half-sister. The evidence did not establish dependency or ties going beyond normal emotional ties between adult relatives.

6. The tribunal also made no legal error in its private-life proportionality assessment. It had discounted the appellant's juvenile offending in accordance with Mazlov v Austria [2008] ECHR 546 and used his offending history to assess the extent of his integration and private life, rather than as an independent deportation ground. A complaint only that it gave a relevant factor excessive weight was not an arguable point of law and disclosed no perversity.

• Court of Appeal (Civil Division) Dismissed the appellant's appeal: [2010] EWCA Civ 1302.
• Asylum and Immigration Tribunal Immigration Judge Grant, on reconsideration, dismissed the appellant's appeals under the Immigration (European Economic Area) Regulations 2006 and Article 8 in a determination promulgated on 7 May 2009.
• Asylum and Immigration Tribunal Immigration Judge Froom had dismissed the original appeal in a determination dated 24 November 2008. Pitchford J ordered reconsideration.