Sannie & Anor v Secretary of State for the Home Department

Under the Immigration (European Economic Area) Regulations 2006, a residence card for an extended family member evidences a right to reside; it does not create one. The applicant must first satisfy the prescribed dependency or household-membership criteria. The Secretary of State’s power to issue a card carries an implicit power to revoke one issued through administrative error, even without fraud, misrepresentation or changed circumstances. A contrary construction would create absurd and anomalous results. Public law, European law and Article 8 constraints may regulate the exercise of the power, but do not remove it. The Court disapproved the contrary obiter observation in Hussam Samsam [2011] UKUT 00165 (IAC) and preferred the reasoning in Nkrumah [2011] UKUT 00163 (IAC).

The appellants, a Ghanaian husband and wife, relied on the first appellant’s Dutch-national brother as their EEA sponsor. The first appellant had been issued a residence card as an extended family member, but the card was granted in administrative error because the required dependency and household-membership criteria had not been considered. After the second appellant applied for a card as the first appellant’s spouse, the Secretary of State refused her application and revoked the first appellant’s card.

The First-tier Tribunal rejected the evidence that the appellants met the statutory criteria and dismissed their Article 8 claim. On appeal, Deputy Upper Tribunal Judge Monson identified an error concerning the burden of establishing lawful revocation, but held it immaterial and dismissed the appeals. The central issue before the Court of Appeal was whether the Secretary of State had power to revoke a residence card issued in administrative error where the holder had never acquired a right to reside.

Appeal dismissed. The Court of Appeal, in the judgment of Lady Justice Hallett agreed by Lady Justice Sharp and the Lord Chancellor, held as follows.

1. An extended family member of an EEA national has no unqualified right to reside or to obtain a residence card. The dependency and household-membership criteria in regulation 8 of the Immigration (European Economic Area) Regulations 2006 must first be satisfied. The right to reside and the residence card are distinct: the card is proof of the right, not its source.
2. The power under regulation 17(4) to issue a residence card is therefore limited by the statutory criteria and the requirement that issuing the card be appropriate. It follows that the power to issue is accompanied by an implicit power to revoke a card issued on a false basis through administrative error, including where the holder never met the qualifying criteria. Fraud, misrepresentation and a change of circumstances are not essential preconditions to revocation.
3. This construction is reinforced by the statutory scheme. It would be anomalous if a card could be revoked when a holder later ceased to qualify, but could not be revoked when the holder had never qualified. It would also be absurd if a person lacking any right to reside could retain an erroneously issued card, while removal under regulation 19(3) could invalidate residence documentation.
4. The final observation in Hussam Samsam [2011] UKUT 00165 (IAC), that an administratively mistaken card should not be revoked even where the holder had no right of residence, was obiter and not binding. The Court respectfully disagreed with it to that extent and preferred the reasoning in paragraph 12 of Nkrumah [2011] UKUT 00163 (IAC).
5. The existence of the revocation power remains subject to public law and European law constraints, including protection against arbitrary action and possible Article 8 considerations. Those constraints regulate its exercise; they do not negate the power itself.

• First-tier Tribunal: rejected the evidence that the appellants were dependent on, or members of the household of, their EEA sponsor, and rejected their Article 8 claim.
• Upper Tribunal: Deputy Upper Tribunal Judge Monson found an error concerning the burden of proof on lawful revocation but held that it was immaterial, and dismissed the appeals.
• Court of Appeal (Civil Division): permission was limited to the extent of the Secretary of State’s revocation power. The appeal was dismissed.