Gerrit Lubbersen v. Secretary of State for the Home Department

Gerrit Lubbersen v The Secretary of State for the Home Department

Immigration Appeal Tribunal

[1984] Imm AR 56, [1984] 3 CMLR 77

Hearing Date: 3 April 1984

3 April 1984

Index Terms:

European Economic Community -- Citizen of Netherlands -- Refused application for residence permit -- Whether as application made after limited leave to remain had expired applicant had right of statutory appeal -- Present application one for review by Tribunal -- Immigration Act 1971 s 14(1) -- EEC Council Directive 64/221 -- EEC Council Directive 68/360 arts 4(3), 7, 8 -- EEC Council Directive 1612/68 -- HC 169 paras 66-72, 140-142.

Held:

The facts are set out in the review. Conclusions: (i) The appellant's right of residence did not depend upon a residence permit. On the facts set out in his affidavit he had the right to enter and remain since he was a "worker" within the meaning of Community Law. (ii) Neither the expiry of his limited leave nor the refusal of a residence permit provided a ground for the curtailment of the appellant's right of residence. (iii) As an EEC national and a worker the appellant had "limited" leave to be in the United Kingdom since his original entry. (iv) It was questionable whether the failure to apply for a residence permit within six months of original entry could remove the appellant's right of statutory appeal. No appearance by or for the appellant. A Gammons for the respondent.

Cases referred to in the Judgment:

Giangregorio [1983] 2 CMLR 472, [1983] Imm AR 104, IAT. Corinaldesi TH/108686/83 (2957), IAT. R v Pieck [1981] 3 All ER, CJEC. PANEL: Professor DC Jackson (Vice-President), Dr S Torrance, T Neil Esq

Judgment One:

THE TRIBUNAL: Review of Decision of Secretary of State The appellant, a citizen of The Netherlands and therefore an EEC national, has requested that a decision of the Secretary of State taken on 3 December 1982 in relation to the appellant's residence in the United Kingdom be reviewed by the Tribunal. Such a review is provided when the appellant has no right of appeal under the Immigration Act 1971 to meet the United Kingdom obligations under Directive No 64/221 of the Council of the EEC. The appellant has been represented since 8 March 1983 and is apparently still represented by EC Lidster and Co, Solicitors, of Grimsby. However, because of the appellant's straitened financial circumstances he was not represented at the hearing and did not appear. The case is unsatisfactory in many of its aspects. The focus of the Secretary of State's decision is unclear and seems to have been taken in ignorance of Mr Lubbersen's stay in this country for most of the period from November 1975 until November 1980. The Explanatory Statement records Mr Lubbersen as entering this country on 19 November 1980 but according to the uncontradicted affidavit of Mr Lubbersen of 19 April 1983 this was at the end of a brief sojourn of two weeks in The Netherlands. On that occasion Mr Lubbersen was given leave to enter for 6 months as a visitor which seems on the facts as presented by Mr Lubbersen entirely inappropriate. The Home Office next took action in relation to Mr Lubbersen on 5 October 1982 -- some two years after, on the facts as recorded in the Explanatory Statement, he had been admitted as a visitor. The action was taken as the result of advice by the Department of Health and Social Security that Mr Lubbersen had been in receipt of supplementary benefit since 14 July 1981. No record of claims was attached to the Explanatory Statement. The Tribunal again stresses that where the Home Office is relying on claim to supplementary benefit as the ground for taking action it is helpful, to say the least, if evidence of the claims said to have been made is annexed to the Explanatory Statement. Subsequent relevant events are set out in the Explanatory Statement: "2. On 29 September 1982 the Home Office were advised by the Department of Health and Social Security that the applicant had been in receipt of supplementary benefit since 14 July 1981. 3. On 5 October 1982 the Home Office wrote to the applicant pointing out that a national of an European Economic Community member state recently admitted to this country who became a charge on public funds and appeared unable to support himself was not normally allowed to remain. The applicant was advised that as his stay had expired it would be necessary for him to apply to the Home Office for a residence permit if he wished to remain in the United Kingdom. The requisite application form was enclosed and he was warned that it was unlikely that he would be issued with a residence permit if he could not show that he was in employment or could otherwise support himself. 4. On 14 November 1982 following a reminder sent by the Home Office on 5 November 1982, the applicant submitted the completed form of application for a residence permit showing himself to be unemployed. He also enclosed his passport and 2 photographs. On 19 November 1982 the Department of Health and Social Security confirmed that the applicant was still in receipt of supplementary benefits." The notice of the decision referred to in the Statement was sent on Form APP 101 (EEC) headed "Refusal of Leave to Remain". The summary of the decision as recorded on the form reads:

"You have applied for a residence permit to remain in the United Kingdom but you have failed to establish yourself in employment and the Secretary of State is not satisfied that you have sufficient funds available for your support without remaining a charge on public funds."

The form continues: "The Secretary of State therefore proposes to refuse your application. Under section 14(1) of the Immigration Act 1971 an entitlement to appeal against a decision to refuse such an application is conferred only on a person whose limited leave to enter or remain has not expired. Your application was made on 14 November 1982 but your limited leave expired on 19 May 1981. You therefore have no right of appeal under the Immigration Act 1971. However, to meet the United Kingdom's obligations under Directive No 64/221 of the Council of the European Economic Community, you may ask for this decision to be reviewed by the Independent Immigration Appeals Tribunal. If you wish to take advantage of this arrangement, you should complete the attached form and return it in the enclosed envelope to the Under Secretary of State, Home Office, (Group 3, Room 624), Lunar House, Wellesley Road, CROYDON CR9 2 By, to arrive NOT LATER THAN 14 DAYS AFTER THE DATE OF THIS NOTICE. If your form is received within this period, the Home Office will submit your application for review to the Tribunal. If you decide not to ask for a review, I have to remind you that because your limited leave to enter has expired, you should leave the United Kingdom without delay. If you fail to leave, you may be prosecuted for an offer under the Immigration Act, the penalty for which is a fine of up to @200 and up to 6 months' imprisonment." On 10 December 1982 Mr Lubbersen requested the review but did not request a hearing. On 8 February 1983 the Explanatory Statement cited above was completed and the case set down for 26 April 1983. On 8 March 1983 the appellant's solicitors submitted a letter summarising Mr Lubbersen's movements and employment in this country since 1975 and followed this up with an affidavit sworn by Mr Lubbersen on 19 April 1983. The case was adjourned apparently for further evidence to be submitted and for further investigation by the Home Office. The hearing before us eventually took place on 7 February 1984. The evidence before us consisted of (i) the Explanatory Statement; (ii) the letter from the appellant's solicitors of 8 March 1983, the contents of which were formalised and set out in greater detail in an affidavit sworn by Mr Lubbersen on 19 April 1983; (iii) letters from John Morris Motors of South Humberside (stating that Mr Lubbersen was employed there from 9 October 1979 to 14 November 1980 and 4 December 1980 until "termination on 23 June 1981") and L Jones (Grimsby) Ltd (testifying to employment from 4 March 1976 -- 2 June 1976) and (iv) a letter from Mr Lubbersen's solicitors dated 2 February 1984 which insofar as it dealt with matters prior to the date of decision stated that on termination of employment with John Morris Motors Mr Lubbersen registered for employment at the local Job Centre in Grimsby. Mr Lubbersen's affidavit of 19 April 1983 sets out his employment record: "4. I am a motor mechanic by trade but was initially unable to obtain employment as such, and in March of 1976 I obtained employment with L Jones (Grimsby) Limited until June of 1976. 5. My periods of employment to the best of my recollection since that date have been as follows: (a) Until September 1977 I was self-employed as a Mechanical fitter in Grimsby. (b) 12.9.77 to 21.1.77 -- Findus Grimsby as a process worker 18.9.78 to 10.11.78 -- Self-employed as Motor Mechanic 7.12.78 to 2.2.79 -- Employed by Tech Mac Engineers Barton on Humberside 19.2.79 to 24.4.79 -- Employed by Industrial Services Limited on Humber Bridge contract 25.6.79 to 8.8.79 -- Employed by Webb Brothers of Grimsby 9.10.79 to 23.6.81 -- Motor Mechanic with John Morris Motors Cleethorpes." In the affidavit Mr Lubbersen stated that he considered Grimsby as his permanent home, that he wished to remain in Grimsby and start his own motor vehicle repair business. In his notice of appeal he had indicated an intention to start a business of his own in 1983. At the hearing Mr Gammons first strove to persuade us that all the Secretary of State was purporting to do was to refuse Mr Lubbersen's residence permit. In support of the Secretary of State's power to refuse a permit Mr Gammons referred us to Directive 68/360 of the EEC Council. Art 4(3) of that Directive provides (so far as is relevant): "3. For the issue of a Residence Permit for a National of a Member State of the EEC, Member States may require only the production of the following documents; -- by the worker: (a) the document with which he entered their territory; (b) a confirmation of engagement from the employer or a certificate of employment." At the time of asking, said Mr Gammons, Mr Lubbersen did not produce the documents required. Secondly, Mr Gammons then went on to argue that as the Secretary of State was not obliged to grant a residence permit as he was under no obligation to grant residence, and in support of this contention he referred us to Art 8 of Directive 68/360. This provides that Member States shall "without issuing a residence permit" recognise the right of residence in their territory of certain workers (where employment is to last not more than three months, workers employed in another Member State and seasonal workers who satisfy specified conditions). Mr Gammons contrasted this provision with that of Art 4 providing for the granting of residence on production of specified documents. We found it difficult in the context of this case to appreciate any distinction in substance between curtailment of a leave to remain and refusal to grant a right of residence. Whichever the approach, Mr Lubbersen was said to have no right to remain in this country unless he requested a review of the Secretary of State's decision. We approach this case on the basis that Mr Lubbersen's stay in this country and his employment record is as he sets it out in his affidavit of 19 April 1983. He did not appear at the hearing and therefore has not been subjected to cross examination. On the other hand there is no evidence of any inquiry by the Home Office of Mr Lubbersen as to the relationship of his version of the relevant facts with those set out in the Explanatory Statement. The case was adjourned on 26 April 1983 and there has been ample time for pursuing any inconsistency. The inconsistency is fundamental to the Secretary of State's case. The Explanatory Statement categorises the appellant as an EEC national "recently admitted to this country". Such a view is quite at variance with Mr Lubbersen's version of events. The case therefore comes to us over twelve months after the original decision without the facts or the issues clearly defined. The notice of decision We regard the notice of the decision as being that which it plainly purports to be. It is headed "Notice of refusal to remain". It refers to the expiry of Mr Lubbersen's limited leave granted on 14 November 1982 and it ends with the warning that if a review is not requested "you should leave the United Kingdom without delay". Otherwise, it is stated on the form, Mr Lubbersen is liable to a fine of @200 and six months imprisonment. This is the second case which has recently come before the Tribunal in which this form has been used and a similar argument advanced (for the other see Rubruck (3042)). The Tribunal has expressed the firm view (following that of the European Court of Justice) that the right of residence does not depend on the holding of a residence permit (see Giangregorio [1983] 3 CMLR 472. On that approach the use of form APP 101 (EEC) simply to notify an EEC national of a refusal of a residence permit is inappropriate and misleading. If the refusal of a residence permit is intended to indicate a denial of the right of residence (as it seemed to us Mr Gammons did argue) the form is appropriate. It seems to us however that the refusal should focus on the right and not the permit, for the refusal of the permit stems from the denial of the right and not vice versa. Mr Lubbersen's right of residence in the United Kingdom As to the substance of the refusal of leave to remain, assuming the facts to be as set out in Mr Lubbersen's affidavit, in our view on 19 November 1980 Mr Lubbersen had a right to enter and remain in the United Kingdom flowing from the Treaty of Rome and Directives 1612/68 and 68/360 concerning the freedom of movement of workers. It is clear that at that date Mr Lubbersen was a "worker" within the meaning of Community Law and that he had therefore a right of residence. (i) The limited leave to enter The granting of a limited leave to enter as a visitor was incompatible with Mr Lubbersen's right of residence flowing from the Treaty of Rome and the Directives (see the decisions of the European Court in Sagulo, Brenca and Bakhouche [1977] 2 CMLR 585; R v Pieck [1981] 3 All ER 46 and the Tribunal's decision in Giangregorio [1983] 2 CMLR). (ii) The right of residence and the residence permit It is clear that, despite articles in Directive 68/360 which arguably could be said to make the right of residence dependent on production of the documents (as for example Article 4) the converse is the law. It is this fundamental point which provides the answer to Mr Gammons' argument based on Articles 4 and 8. Both these articles are concerned with evidentiary matters. Article 4 provides for the normal rule -- for a worker to obtain a residence permit and to produce documents in order to obtain the permit. Article 8 provides for exceptions to the normal rule. Workers falling within it do not require a residence permit. In considering whether an EEC national has a right of residence it is essential that attention be focussed on the right and not the residence permit which is evidence of it. Naturally refusal of leave to remain may be couched in terms of refusal of grant of a permit but it seems to us that the basis of that refusal must be that the applicant has no right of residence. This may be for the reason that the person is not a worker (either has never been or has ceased to be) or that the right of residence has been curtailed on grounds of public policy, public security or public health (see Treaty of Rome, Art 48(3) Directive 68/360 Art 10). Of itself the failure to obtain a residence permit cannot lead to curtailment of leave to remain although a penalty proportionate to the offence may be imposed. In R v Pieck [1981] 3 All ER 46 (at p 60) the European Court said: "18. Among the penalties attaching to a failure to comply with the formalities required as proof of the right of residence of a worker enjoying the protection of Community law, deportation is certainly incompatible with the provisions of the Treaty since, as the court has already confirmed in other cases, such a measure negates the very right conferred and guaranteed by the Treaty. 19. As regards other penalties such as fines and imprisonment, whilst the national authorities are entitled to impose penalties in respect of failure to comply with the terms of provisions relating to residence permits which are comparable to those attaching to minor offences by nationals, they are not justified in imposing a penalty so disproportionate to the gravity of the infringement that it becomes an obstacle to the free movement of persons. This would be especially so if that penalty included imprisonment. 20. It follows that the failure on the part of a national of a member state of the Community, to whom the rules on freedom of movement for workers apply, to obtain the special residence permit prescribed in art 4 of Directive 68/360 may not be punished by a recommendation for deportation or by measures which go as far as imprisonment." (iii) Ground for curtailment of the right of residence In this case, the Secretary of State refused a residence permit on the grounds of (i) unemployment and (ii) remaining a charge on public funds. Further the Secretary of State declared that as the permit had been refused and as Mr Lubbersen's limited leave had expired, Mr Lubbersen's option was either to request a review or "leave the United Kingdom without delay". In our view neither the expiry of the limited leave nor the refusal of the residence permit provides a ground for the curtailment of Mr Lubbersen's right of residence. Further, being a charge on public funds of itself is no ground for curtailment of a right of residence once acquired as a worker (see Giangregorio). There is no contention that public policy, public health and public security is at issue and the only possible ground for the termination of Mr Lubbersen's right of residence is his unemployment. The need to establish voluntary unemployment In its decision in Giangregorio the Tribunal stressed the distinction between voluntary and involuntary unemployment. The Tribunal held that by virtue of Art 7 of Directive 68/360 the Secretary of State must establish that the unemployment is voluntary if he wishes to deny the right of residence to a person once a worker on the ground that Community Law no longer protects the "worker" as he is unemployed. Involuntary unemployment is specifically dealt with by Art 7(2) and provides only a ground for limitation of the residence permit (and in this context it seems to us the right of residence) on the first renewal of the permit. The facts as we are taking them to be show that Mr Lubbersen, after entering the United Kingdom in November 1975, was either self-employed or employed from March 1976 until 23 August 1981. There is no evidence that he ever had or indeed applied for a residence permit. The Secretary of State has not purported to rely on Article 7(2) of Directive 68/360 to limit Mr Lubbersen's right of residence and the scope of that provision where, as here, no residence permit has been applied for, is unclear. As it is not relied on in this case we take the matter no further. The essential issue is whether Mr Lubbersen's unemployment is voluntary or involuntary. The Secretary of State has clearly not addressed his mind to this question and we reiterate what was said in Giangregorio:

"In our view Art 7 requires the Secretary of State to assert voluntary unemployment, although it may well be sufficient to produce evidence which could indicate voluntary or involuntary unemployment (eg the receipt of supplementary benefit) and require the holder of the permit to establish that the employment is involuntary. It is however essential in our view that the ground of curtailment be voluntary unemployment."

While here in this case, in the Explanatory Statement, there is an assertion of receipt of supplementary benefit there is no linking of this to voluntary unemployment. Rather it is the reliance on public funds on which the decision was (in our view wrongly) based. Mr Lubbersen maintains through his solicitors' letter of 2 February 1984 that on termination of his employment in June 1981 he immediately registered for employment with the local Job Centre. We would require a case to be made based on voluntary unemployment before we could agree that the Secretary of State was entitled to deny Mr Lubbersen's right of residence. No such case is made on the evidence before us. The Secretary of State's discretion and rights of appeal In a decision notified on 1 December 1983 the Tribunal held in the case of Corinaldesi (2957) that neither an adjudicator nor the Tribunal had jurisdiction under the Immigration Act 1971 to hear the appeal against the refusal of a residence permit. In the view of the Tribunal which heard that case "Opposition to the refusal to grant a residence permit should take the form of an application for review to the Secretary of State. In the event of dissatisfaction with the result of such a review the person involved has his remedies in the High Court". The proceedings in the present case come before us in the role of a reviewing body on the assumption that Mr Lubbersen had no right of appeal under the Immigration Act 1971 as he had failed to apply for an extension during the period of the limited leave granted to him on 19 November 1980. The decision in Corinaldesi is directly relevant in that (i) the Tribunal based its conclusion on its view of the substantive right to residence of an EEC national and the role of a residence permit (which is at the heart of this case); (ii) the Tribunal held that "it cannot be stated that the grant or refusal of a residence permit is to be equated with the grant or refusal of an application to vary limited leave to enter the United Kingdom"; (iii) if Corinaldesi is right the rationale for the review process relevant to the present case is wrong; (iv) the basis of the decision in Corinaldesi raises again the issue to which Tribunal adverted in Rubruck (30) whether (directly conversely to the holding in Corinaldesi) an EEC national has a statutory right of appeal regardless of whether any "limited leave" purported to have been granted on entry has or has not expired. Further, the consequences of the decision in Corinaldesi if it is to be followed are far reaching. First, the review process within which we are hearing the present case must be extended. Secondly, the United Kingdom is in breach of Direction 64/221 Article 8 which reads:

"ART 8. The person concerned shall have the same legal remedies in respect of any decision concerning entry, or refusing the issue or not of renewal of a residence permit, or ordering expulsion from the territory, as are available to nationals of the State concerned in respect of acts of the administration."

The review process in which we are presently engaged was instituted because of an obligation to allow an appeal from the refusal of a residence permit even if national law did not permit it. The decision in Corinaldesi means that an EEC national does not have the right of appeal which a national refused the right of entry or to remain does have -- clear breach of the Directive. Thirdly, it is not clear whether the Corinaldesi decision applies only to decisions of the Secretary of State specifically to refuse a residence permit or whether it extends to the case (as is the one before us) where the appeal is against the decision not to vary limited leave, the issue being whether that leave is properly imposed. We agree with the Corinaldesi decision insofar as it holds that the Secretary of State has no power to impose a time limit at the port of entry on an EEC national whose purpose on entry is within the Treaty of Rome and relevant secondary legislation. However we do not agree that an EEC national admitted for these purposes does not have "limited leave" under the Immigration Act 1971 and within the meaning of S 14(1) of that Act. It seems to us that in reaching the decision that no appeal lies form the refusal of a residence permit the Tribunal in Corinaldesi: (i) disregarded the Immigration Rules made under the Immigration Act 1971 s 3(2) which specifically provide for the right of entry and right to remain of EEC nationals (the current rules being set out in HC 169, Paragraphs 66 -- 72 and 139 -- 147); (ii) acted under a misapprehension of the consequences of the decision of the European Court of Justice in R v Pieck [1981] 3 All ER 46. (iv) Admission of an EEC national under the Immigration Rules -- is it "limited leave"? The Immigration Act 1971 s 33(1) defines "limited leave" as "leave under this Act to enter or remain in this country which is limited as to duration". S 3(1) provides that except as provided otherwise by the Act a person other than a British citizen "shall not enter this country unless given leave to do so in accordance with this Act". S 3(2) provides for the making of rules for regulating the entry into and stay in the United Kingdom of persons required to have leave to enter "including any rules as to the period for which leave is given". HC 169 provides: "67. A national of a Member State of the European Community is entitled to admission to take or seek employment, to set up in business, to become self-employed or otherwise to exercise the right or establishment of the rights relating to the provision or receipt of services as provided in Community law. 69. A person entitled to be admitted in accordance with paragraph 66, 67 or 68 may be refused admission only if exclusion is conducive to the public good on grounds of public policy, public security or public health. 70. Provided he does not fall a charge on public funds, a person admitted in accordance with paragraph 66, 67, or 68 is free to remain for up to 6 months without further formality, but is required to apply for a residence permit if he wishes to stay longer (see paragraph 140). 71. A Community national who would be entitled to benefit from the Community law provisions relating to the free movement of labour if coming to work or to seek work will normally be admitted for 6 months without restriction as regards employment or occupation if the purpose of his visit does not fall within the terms of paragraph 67 or 68 provided that he satisfies the immigration officer that he is not likely to become a charge on public funds or otherwise liable to refusal of leave to enter under Part IX of these rules. Having regard, therefore, only to domestic law it seems clear that an EEC national qualifying within Paragraph 67 or 71 has "limited leave" to enter the United Kingdom. Is this system consistent with EEC law? (ii) EEC law and the decision in R v Pieck In R v Pieck the question was whether the endorsement on a passport of an EEC national "Given leave to enter the United Kingdom for six months" was consistent with the right of residence of a "worker" within the meaning of the Treaty of Rome. The Court held that no permit to enter or production of proof of the right of residence may be required other than the residence permit for which provision is made in Directive 68/360. In our view this holding does not mean that an EEC national entering the country in reliance on the EEC provisions relating to freedom of workers does so without leave or without any limit on the duration of his leave. It does mean that any "leave" cannot be inconsistent with the right of residence. It is important to stress that the rights of freedom of workers depend on the activities of the EEC national in this country. Such activities must eventually qualify as "work" or self-employment. It is noticeable that HC 169 Paragraph 71 extends the right to enter to EEC nationals who do not satisfy Paragraphs 67 and 68 and that this is in line with the analysis of the Advocate General in R v Pieck. Advocate General JP Warner was of the firm view that any question of an individual's right of residence was to be examined after entry rather than on entry. (See [1981] 3 All ER pp 56 -- 57). It is axiomatic therefore that there must be a system in each Member State to enable the decision to be made whether an EEC national is entitled to the right of residence as a "worker" or as a self-employed person. The immediately relevant question is whether it is within the EEC framework to include in that system a time limit on the right to remain here without the decision as to that entitlement to residence being made. Once agreed that enquiries as to qualification should not take place on entry, it is difficult to envisage an effective system for assessing whether the entrant is qualified unless a time limit is imposed. Otherwise the freedom of workers becomes the freedom of non-workers. Indeed an interpretative declaration was adopted by the Members of the Council when adopting Directive 68/360, that if an EEC national had not found work after three months the stay could be terminated. Further it could be terminated if the individual became dependent on social assistance during that period. That declaration is reflected in the immigration rules set out in HC 169 save that six months is substituted for three months. HC 169, Paragraphs 140 -- 142 provide for the granting of a residence permit to persons admitted in accordance with Paragraphs 66 -- 72. The grant is dependent on the attainment of the qualification of being a worker or self-employed and it will be for a set period of time -- normally 5 years. So, the holder will still have limited leave to remain in the United Kingdom and may only pass through that category through the granting of indefinite leave and four years of employment (Paragraph 144). An EEC national who, as in this case, has been in this country for longer than the six month initial period and who has throughout qualified for the protection of EEC law, has a right of residence. Nevertheless if, again as in this case, he has not applied for a residence permit or has a permit valid for five years, in our view he has "limited leave". It is for him to establish that his right of residence has over-ridden the limitations and any decision as to that will be subject to a right of appeal. In our view therefore the decision in R v Pieck prohibits the imposition of any condition (including a time limit) on entry of an EEC national. It does not prohibit (and indeed implies the necessity for) a limitation on the stay of an EEC national so as to test the qualifications for the right of residence on which reliance for the stay is placed. Also in our view the framework set out in HC 169 with respect to EEC nationals is consistent with EEC law and that therefore an EEC national entering this country "has limited leave" under the Immigration Act 1971. The EEC national therefore has a right of appeal under s 14(1) in respect of any decision to refuse to vary the limitation of the six months duration. We reiterate our opinion that it would lead to less confusion if the Secretary of State were to focus on the right of residence and treat the residence permit in its true role -- as proof of that right. Finally we agree with Corinaldesi in that the Secretary of State has no power to impose a time limit on the stay of an EEC national who falls within the doctrine of R v Pieck save that flowing from the post entry qualification period. So in the present case the Secretary of State had no power on 19 November 1980 to impose a time limit on Mr Lubbersen's stay. He could not therefore be said to have lost his statutory right of appeal because of his failure to apply for an extension of leave within the period of the leave. There was no power to impose that period. Further it seems to us to be doubtful (although we express no firm opinion) whether the failure to apply for a residence permit within the initial six months of stay can be said, consistently with EEC law, to remove the right of appeal. It seems unlikely that such a consequence should be a sanction proportionate to the omission to apply for proof of a right. We do however suggest that the Secretary of State might re-examine the basis of and the need for the review process under which we act in this case. Summary of conclusions Approaching the case on the basis that Mr Lubbersen's stay in this country and record of employment is as stated by him: (i) Since 1975 Mr Lubbersen was a worker within the meaning of EEC law with a right of residence in the United Kingdom. (ii) Following from (i) the Secretary of State had no power to impose limitations of Mr Lubbersen's right of residence and therefore on 19 November 1980 the limited leave to enter as a visitor was of no effect. (iii) The Secretary of State had purported to curtail Mr Lubbersen's leave to remain in this country by the notice of the decision of 3 December 1982. (iv) Following from (i) and (ii) the Secretary of State had no power to curtail Mr Lubbersen's right of residence because of the expiry of the leave granted on 19 November 1980. (v) Mr Lubbersen's right of residence was not affected by his failure to obtain a residence permit. (vi) Given no reliance on public policy, public security or public health, the Secretary of State was entitled to curtail Mr Lubbersen's right of residence only on the ground of voluntary unemployment. (vii) The Secretary of State has not established that Mr Lubbersen was voluntarily unemployed simply by a reference to receipt of supplementary benefit. (viii) As an EEC national and a worker Mr Lubbersen had "limited leave" to be in this country, as from his original entry. (ix) It is questionable whether failure to apply for a residence permit within six months of original entry can remove Mr Lubbersen's right of statutory appeal. It will be clear from our determination that we have doubts whether the appellant had need to resort to the review. Nevertheless the appeal comes to us under the review procedure and we have considered it in that context.

DISPOSITION:

Had this been a statutory appeal the Tribunal would have allowed it.