The Secretary of State for the Home Department v Beverly Antoinette Barnett

Applications under the Immigration (European Economic Area) Regulations 2006 must be assessed by identifying both the right asserted and the document which confirms it. A reference in regulation 17 to a valid passport means the passport of the non-EEA applicant, not that of the EEA national.

For a permanent residence card, regulation 18 requires proof of the permanent right of residence but does not impose an express passport or identity-document requirement. The Secretary of State may require an EEA national’s document only where it is genuinely needed to prove the asserted right. Refusal solely because it is not produced is unlawful without a valid reason for requiring it.

The Jamaican respondents applied for permanent residence cards as the non-EEA family members of a Polish national. They relied on five years’ residence with him in accordance with the Immigration (European Economic Area) Regulations 2006.

The Secretary of State accepted that the substantive residence requirements had been met, but refused because a current passport or acceptable identity document for the Polish national had not been produced. The First-tier Tribunal allowed the appeals. The Secretary of State appealed, contending that regulation 17 required production of a valid passport.

The central issue was whether the applications fell under regulation 17 or regulation 18, and whether the Secretary of State could lawfully insist on the EEA national’s identity document.

1. The Secretary of State’s appeal established an error of law in the First-tier Tribunal’s reasoning. Its decision was set aside. The Upper Tribunal re-made the decisions and allowed the respondents’ underlying immigration appeals.

2. The applications were for permanent residence cards based on a permanent right of residence under regulation 15. They therefore fell to be determined under regulation 18 of the Immigration (European Economic Area) Regulations 2006, not regulation 17. Regulation 17 concerns residence cards for family members of qualified persons or of EEA nationals already holding permanent residence.

3. In any event, the requirement in regulation 17(1)(a) and (2)(a) to produce a valid passport concerns the passport of the applicant who is not an EEA national. It does not require production of the EEA national’s passport.

4. Regulation 18 requires proof that the applicant has a permanent right of residence. Depending on the circumstances, that proof may require evidence of the EEA national’s identity. But the Secretary of State may not insist on that person’s passport or identity document merely because it has not been supplied. A valid reason must show that the document is genuinely needed to prove the asserted right.

5. Here, the Secretary of State had accepted that the respondents satisfied regulation 15 and had previously received the Polish national’s passport with successful applications. Further identity evidence was unnecessary. The refusal was therefore unlawful, and permanent residence cards should have been issued under regulation 18.

• Upper Tribunal (Immigration and Asylum Chamber): The First-tier Tribunal decision was set aside for legal error. The Upper Tribunal re-made the decisions and allowed the respondents’ appeals under the Immigration (European Economic Area) Regulations 2006.
• First-tier Tribunal: Allowed the respondents’ appeals against the Secretary of State’s refusal of permanent residence cards.
• Permission stage: The First-tier Tribunal granted the Secretary of State permission to appeal on 13 December 2011.