Santos, R (on the application of) v Secretary of State for the Home Department

A non-EEA spouse’s residence rights derive from the Union citizen’s qualifying status and do not depend on possession of residence documentation. Separation does not end those rights while the marriage subsists. Applications for residence cards must be formally determined within six months, with the required certificate and appeal rights. Immigration authorities must assess removal and detention under the EEA regime where the person may have a right of residence. Detention is unlawful where there are no reasonable grounds for removal, the applicable policy is ignored, or the person is denied the prescribed appeal and voluntary-departure safeguards.

The claimant, a Brazilian national, married a Portuguese national who was residing and working in the United Kingdom. He applied for a residence card, but the defendant repeatedly returned his applications without making formal decisions. He was later detained for 154 days as an overstayer and removal was attempted. A subsequent residence-card refusal was allowed on appeal by the First-tier Tribunal, and a residence card was issued.

The claim concerned failures to determine the applications, denial of appeal rights, unlawful removal and detention, restrictions on work and residence, and damages for false imprisonment and breach of EU law.

1. The claimant was the spouse of a Union citizen exercising Treaty rights and therefore had a right of residence from 30 April 2010. That right was declaratory of an existing entitlement and did not depend on the issue of a residence card.
2. Separation did not terminate the claimant’s status as a family member while the marriage subsisted. The defendant wrongly treated the spouse’s withdrawal of her separate registration application as withdrawing the claimant’s residence-card application.
3. The defendant acted unlawfully by repeatedly returning applications instead of making formal decisions. This deprived the claimant of reasons, certificates and in-country rights of appeal under the Directive and the EEA Regulations 2006. The defendant also failed to determine the July 2010 and later applications within six months.
4. Regulation 24 required reasonable grounds for suspecting that the claimant could be removed under regulation 19(3). On the evidence available, no immigration officer could reasonably have reached that conclusion. The claimant’s case had been assessed under domestic overstayer provisions rather than the EEA framework.
5. The defendant also failed to apply her European Casework Instructions and Enforcement Instructions and Guidance. The claimant should not ordinarily have been detained, should have received the appropriate EEA notices and appeal rights, and should have been allowed one month to leave voluntarily.
6. The detention from 29 January to 30 June 2012 constituted false imprisonment. The claimant recovered £40,000 general damages, £6,578 special damages, £10,000 aggravated damages and £20,000 exemplary damages. He also recovered £59,470 for breach of EU law, including loss of earnings and exemplary damages. The total award was £136,048.