Benjamin & Anor, R (On the Application Of) v Secretary of State for the Home Department

A judicial review claim should ordinarily be stayed or dismissed where an adequate statutory appeal is available and the appeal can determine disputed facts more effectively. Where entitlement under the Immigration (European Economic Area) Regulations 2006 depends on the exercise of EU Treaty rights, the tribunal must assess the claimant’s economic activity in the round. Continuous or immediately pre-return employment is not necessarily required. Genuine self-employment may include unpaid or low-paid work and unsuccessful efforts to obtain work. Permanent residence under Article 16 of Directive 2004/38/EC requires five years of lawful residence, which in turn requires satisfaction of a qualifying condition under Article 7 during that period. A residence card confirms status but does not itself create it.

The claimants sought judicial review of refusals to grant the second claimant, a Kenyan national, an EEA family permit and entry clearance to join her British husband and children in the United Kingdom. The defendant considered that the first claimant had not shown that he had exercised Treaty rights in France by working or being self-employed.

The claimants relied on the Surinder Singh principle, low-paid or unpaid work, permanent residence under Article 16 of Directive 2004/38/EC, and the recognition of French residence cards. They also raised Article 8 ECHR and section 55 of the Borders, Citizenship and Immigration Act 2009. The central issue was whether the claims should be determined by judicial review or by the available statutory appeal, where the outcome depended on disputed factual findings.

1. Disposition. Both judicial review claims were stayed pending the final determination of the claimants’ statutory immigration appeal and, in relation to the residence-card issue, the final determination of McCarthy v Secretary of State for the Home Department in the CJEU and High Court. The claimants had liberty to apply to restore either claim within one month after the final determination of either matter. The application for an interim mandatory injunction was refused.
2. Alternative statutory remedy. The court accepted the defendant’s submission, relying on R (Lim) v Secretary of State for the Home Department, that the statutory appeal should be pursued. A stay, rather than dismissal, preserved any claim for damages. The First-tier Tribunal could hear evidence, conduct cross-examination and make formal findings about the first claimant’s work in France. Judicial review was confined to the material before the decision-maker and was unsuitable for resolving the disputed factual merits.
3. EU Treaty rights. The Surinder Singh principle required proof that the EU national had exercised Treaty rights in the host state. However, following OB v Secretary of State for the Home Department, Article 9 should not be interpreted restrictively so as to require employment continuously or immediately before return. The issue required an assessment of the individual facts.
4. Economic activity and permanent residence. Following Levin v Staatssecretaris van Justitie, unpaid or low-paid work and unsuccessful efforts to obtain work could form part of the assessment of genuine self-employment, but findings of fact remained necessary. O & B v Minister voor Immigratie, Integratie en Asiel indicated that Article 21(1) TFEU could protect family life continued after return where permanent residence had been acquired. That status still depended on five years of lawful residence under Article 16, requiring satisfaction of a qualifying Article 7 condition. A French residence card confirmed, rather than granted, permanent residence.
5. Other issues. Article 8 ECHR, section 55 of the Borders, Citizenship and Immigration Act 2009, and Appendix FM could be raised before the tribunal. The interim injunction was exceptional and inappropriate while entitlement to enter remained disputed and the necessary facts had not been determined.

The claims were transferred from the Upper Tribunal to the High Court because a declaration of incompatibility was sought. A related claim was also transferred by consent so that both claims could be determined together. The High Court stayed both claims pending the statutory immigration appeal and relevant proceedings in McCarthy v Secretary of State for the Home Department.