RL (New Zealand) v SSHD

Permission for a second appeal requires an important point of principle or practice, or another compelling reason. Public importance alone is insufficient where the proposed point has no real prospect of success. EU free-movement legislation defines family members by its express terms. It does not confer a residence right on the civil partner of a person who is only a family member of an EEA national. Article 8 of the European Convention on Human Rights is a qualified right and does not require domestic regulations to be expanded to create such an automatic right. An Article 8 proportionality assessment is not vitiated merely because every factor is not expressly mentioned where its substance was considered.

The appellant, a New Zealand national, was the civil partner of a Philippine national who held a UK residence card as the family member of his Irish stepfather. The appellant’s application for a residence card was refused.

The First-tier Tribunal dismissed his appeal, and the Upper Tribunal dismissed his appeal from that decision. An earlier paper application for permission to bring a second appeal was refused. The appellant renewed his application before the Court of Appeal, arguing that he was a family member under the EU free-movement legislation, that the relevant rights were directly enforceable, and that the domestic rules should be construed consistently with Article 8. He also challenged the Upper Tribunal’s proportionality assessment.

Application refused. Vos LJ declined permission to bring a second appeal.

1. The second-appeal threshold required an important point of principle or practice or another compelling reason why the appeal should be heard. Although the proposed issue might be described as one of public importance, permission was not justified where the point had no real prospect of success.
2. Article 2 of the Citizens' Directive 2004/38/EC and Regulation 7 of the Immigration (European Economic Area) Regulations 2006 had to be construed according to their terms. Regulation 7 tracked Article 2. It did not include the civil partner of a person who was himself only a family member of an EEA national and not an EEA national exercising Treaty rights. The category could not be enlarged because a wider definition appeared desirable or consistent with an extended family arrangement.
3. Article 8 of the European Convention on Human Rights was a qualified right. It did not automatically require lawful residence, nor did it require Regulation 7 to be expanded to cover a family member of a family member. The Directive’s purpose and any asserted direct enforceability could not overcome the express statutory language.
4. The Upper Tribunal’s proportionality assessment was not vitiated. Its consideration of the distress caused by separation effectively addressed the impact on the family’s position and on the EEA national’s interests. The appellant’s inability to return through another route was a circumstance applying generally to persons in that position and did not establish a compelling reason for a further appeal.

The application was refused.

• Court of Appeal (Civil Division): a renewed oral application for permission to bring a second appeal was refused on 25 November 2015.
• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appellant’s appeal from the First-tier Tribunal decision, promulgated on 8 April 2014.
• First-tier Tribunal: dismissed the appellant’s appeal against the Secretary of State’s refusal of a residence card dated 7 August 2013.