About this case:

• Judgment:
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Making an order quashing the decision, Justice McCloskey found that the Secretary of State had made no attempt to engage with the evidence provided in support of the application; and that the decision was therefore in breach of the Borders, Citizenship and Immigration Act 2009, the ECHR, and was in breach of the Secretary of State’s duties under the Human Rights Act 1998 and EU law.

Background

The man applied for a residence card to confirm his status as an extended family member of an EEA National under the European Economic Area Regulations 2016; in support of his he asserted that he has been living in the UK for 12 years, has cohabited with his Latvian partner since 2014, and that they have a child together who was born in Northern Ireland.

The application for a residence card was refused in November 2017, and the reason given for this decision was that there was no evidence of cohabitation or joint finances. Notably, the decision letter stated: “No further consideration has been given to the other evidence that you have supplied in support of your application”

In the man’s application for judicial review of the impugned decision, the grounds of challenge were:

High Court Discussion

Criticising the decision and finding that the applicant’s first ground should succeed, Justice McCloskey said that the “bare and conclusionary terms” of the decision:

Justice McCloskey explained that section 55 of the Borders, Citizenship and Immigration Act 2009 applied to the decision, and therefore the Secretary of State was subjected to twofold duties as per JO (Nigeria) v SSHD UKUT 517, MA (Pakistan) v SSHD EWCA Civ 705 and, Re ED’s Application NIQB.

Stating that the decision demonstrated a “manifest failure to take the elementary step of ascertaining the best interests of the children concerned, coupled with an incontestable failure to comply with section 55(3)”; Justice McCloskey was satisfied that resulted in two egregious public law misdemeanours.

Consequently, Justice McCloskey found that the procedural requirements of Article 8 ECHR and Articles 7 and 24 of the CFREU were violated, in breach of the Secretary of State’s duties under section 6 of the Human Rights Act 1998 and EU law.

In considering the argument advanced that the Secretary of State was subject to no duty under section 55 of the Borders, Citizenship and Immigration Act 2009 because no positive case was made under this provision – Justice McCloskey said that this was manifestly unsustainable, as it “neglects and distorts the clear language of the statute by attempting to superimpose an unexpressed precondition. Section 55 is a paradigm illustration of a proactive and unencumbered legal duty. The trigger for having to discharge the twofold duty would have been apparent to any careful reader of the documents provided with the application”.

Order

Justice McCloskey declined to make an order of mandamus, stating that it was unlikely that the Secretary of State would “be able to make a legally defensible decision refusing the applicant’s application for a residence card under the EEA Regulations”. As such, Justice McCloskey made an order quashing the impugned decision, and directed that the Secretary of State “make a fresh decision within six weeks” taking in to account “any further information and representations provided on behalf of the applicant”.