Hans George Hoth v. Secretary of State for the Home Department
- Author: Immigration Appeal Tribunal
- Document source:
-
Date:
12 February 1985
HANS GEORGE HOTH v SECRETARY OF STATE FOR THE HOME DEPARTMENT
Immigration Appeal Tribunal
[1985] Imm AR 20
Hearing Date: 12 February 1985
12 February 1985
Index Terms:
EEC national - - refusal of residence permit -- application of review -- ambit of the review procedure -- whether those seeking work in a Member State enjoy the rights that attach to EEC workers -- rights accorded by the immigration rules -- origin of right of residence -- HC 169 paragraphs 67, 70, 140, 141, 143.
Held:
The facts are set out in the determination. Held: 1) "Any application based on the right to seek work is not based on a claim of acquired residence and whether it is made while leave is current will depend on leave formerly granted or right of residence formerly acquired." 2) "Any application based on actual (or even past) work is based on a claim of acquired residence and hence is also a claim that the applicant has limited leave at the time of the application and is entitled to remain because of it." 3) On the facts the appellant had a statutory right of appeal to allow his case to be heard on the merits.Cases referred to in the Judgment:
Suthendran v The Immigration Appeal Tribunal [1970] 3 All ER 611. Levin v Secretary of State for Justice [1982] 2 CMLR 454. R v Secretary of State for the Home Department ex parte Muhammed Ayub [1983] Imm AR 20. Giangregorio v Secretary of State [1983] Imm AR 104. Lubbersen v Secretary of State [1984] Imm AR 56. Kazamias (unreported) (3729).Counsel:
The appellant did not appear and was not represented; A Gammons for the respondent. PANEL: Professor DC Jackson (Vice-President), EA Lewis Esq JP, Dr S TorranceJudgment One:
THE TRIBUNAL: Mr Hoth is a citizen of the Federal Republic of Germany, a Member State of the European Economic Community. The matter comes before us as a request by him for a review of the decision by the Secretary of State on 6 June 1984. The notice of decision set out on APP 101 (EEC) reads: "You have applied for a residence permit but you have failed within a reasonable time to produce evidence that you have established a right of residence here under the terms of the Treaty of Rome, or that you qualify for leave to remain by virtue of marriage to a British citizen. The Secretary of State therefore refuses your application. The Secretary of State 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 19 June 1983 but your limited leave expired on 18 March 1983. 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." By notice, dated 8 June 1984, Mr Hoth (hereafter the appellant) requested a review giving as his reasons: "i) I am self-employed and therefore not dependent on state funds to maintain myself. ii) I propose marrying Cathy Bartholomew, a British Citizen as soon as my application to stay in the UK has been determined." The request for review was lodged by Cotton & Mughal, solicitors of Sheffield. By letter of 26 June 1984 the solicitors stated that they no longer represented the appellant and gave his address as 107 Bagley Road, Sheffield. This address also appears in earlier correspondence from the appellant. The case was originally scheduled for hearing on 15 November 1984 and notices of place, date and time of hearing, dated 18 and 31 October 1984, were sent to the appellant at 107 Bagley Road. On 15 November, Mr Gammons appeared for the respondent but there was no appearance by the appellant or any representative on his behalf. On that occasion the case was adjourned to allow the Home Office to consider whether in the light of the Tribunal's comments in Lubbersen (3131) the matter was properly before the Tribunal under the review procedure. The case was rescheduled for hearing on 12 February 1985. On 4 January 1985 notice of place, date and time of hearing, together with the papers were sent to the appellant, both by first class mail and recorded delivery. The papers were returned "no longer living at this address". Being satisfied the notice of the hearing had been given as required by the Immigration Appeals (Procedure) Rules 1972, we were prepared to hear the appeal in the absence of the appellant. Mr Gammons had no oral representations to make and requested that the case be dealt with on the basis of the documentary evidence. The background facts The appellant entered this country on 18 September 1982 when he was admitted for six months. On 18 November 1982 and subsequently the appellant claimed and was paid Supplementary Benefit. On 18 February 1983 (acting according to the explanatory statement on the basis of HC 169 paragraph 143) the Secretary of State varied the appellant's leave to enter on the following terms: "On 18 September 1982 and subsequently you were given leave to enter the United Kingdom for six months as a visitor. However, during that time you have been unable to support yourself and you have fallen a charge on public funds. The Secretary of State therefore varies your leave to enter so as to require you to leave the United Kingdom by 5 March 1983." The notice of decision indicated that the appellant had the right to appeal to an adjudicator. The appellant appealed. The appellant has instructed various representatives. At the time of his appeal to an adjudicator he was represented by the United Kingdom Immigrants Advisory Service who, on 10 June 1983, on the instructions of the appellant withdrew the appeal stating that a fresh application was to be made to the Home Office. In a letter to the Home Office of 10 June 1983, the Service wrote:". . . we ask that our client's position be reconsidered on the grounds that he has ceased claiming benefits and is to marry his fiancée, Cathy Bartholomew. The couple have been engaged for seven months and, on marrying, intend setting up a business together. We have invited Mr Hoth to come to see us and documentation on the above will be forwarded to you as soon as available."
Subsequently, in 1983, the appellant, either directly or through representatives, said that he (a) would marry Cathy Bartholomew, on 30 March 1984 and (b) was self-employed as an aquarist which, in his own words "involves making and maintaining outside ponds, all kinds of fish tank set ups and clearing and maintaining them etc". He stated that "it has been profitable and enables me to make quite a good living for myself and for Cathy in the future". In September 1983 the DHSS informed the Home Office that the appellant and Cathy Bartholomew were being treated as a married couple and were in receipt of Supplementary Benefit. The Benefit was still being paid in December 1983, the explanatory statement recording that the Benefit ceased to be paid on 10 January 1984. In February 1984 in response to a Home Office enquiry about documentary evidence of his self-employment, the appellant wrote:"I was self-employed until the winter of 1983. The job I was doing I cannot do during the winter months as due to doing outside ponds you cannot do this in the winter. During this time I am filling in by working in pubs and doing some odd jobs for my landlord etc. Come spring-time I will start my business up again, but I have also had an offer from my Landlord to help him in a 'tarmac' business he is going to start then, so if everything goes alright I will be doing that."
The appellant added that he had claimed benefits by mistake and stopped on 6 November 1983 when he realised that it was wrong to do so. The appellant enclosed an application for a residence permit with the letter on the grounds that (1) he was self-employed as an aquarist and (2) he was employed as a stock barman at a public house in Sheffield -- the Brewer on the Bridge. In support of (1), according to the explanatory statement, the appellant enclosed invoices (but these do not appear on the file before us) and as to (2) the appellant enclosed a copy typed form letter from Whitbreads acknowledging the commencement of his employment at the Brewer on the Bridge on 6 February 1984. On 17 April 1984 the Home Office wrote to the United Kingdom Immigrants Advisory Service who replied that they were unable to contract the appellant. On 6 June 1984 the appellant's application was refused. Is the case within the review procedure? In Lubbersen (3131) the Tribunal raised the question of the relevance of the right of residence of an EEC worker to the leave actually granted to him in the context of the right to appeal from a decision not to vary leave by the Secretary of State. In Kazamias (3729) the Tribunal recently considered the issue as it applies to those seeking to remain as self-employed persons and to take advantage of the right of freedom of establishment under the Treaty of Rome and secondary EEC legislation. In regard to the freedom of establishment, as the Tribunal said in Kazamias EEC law clearly provides a right to seek to become established as well as a right to reside on becoming established. The issue in EEC law in relation to those claiming residence to seek to become established goes solely to the extent of the implied, ancillary right to enter and remain to enable them to exercise the primary right. In respect of a national of an EEC State seeking to work in another such State, there is the preliminary issue ofwhether they enjoy the protection of EEC law at all, or whether the principles of freedom of movement of workers is restricted to those accepting offers of employment already made. The right to seek work is not specified in EEC law as being included within the principle of freedom of movement of workers. Indeed, it is arguable that Article 48 of the Treaty of Rome and Regulation 1612/68 on which workers' freedom of movement is founded are limited to entry to take up employment already offered. The relevant EEC legislation provides: "Art 48 1 Freedom of movement for workers shall be secured within the Community by the end of the transitional period at the latest. 3. It shall entail the right, subject to limitations justified on grounds of public policy, public security, or public health. (a) to accept offers of employment actually made . . ." Regulation 1612/68 Article 1 provides: "Art 1 1 Any national of a Member State, shall, irrespective of his place of residence, have the right to take up any activity as an employed person, and to pursue such activity, within the territory of another Member State in accordance with the provisions laid down by law, regulation or administrative action governing the employment of nationals of that State. 2. He shall, in particular, have the right to take up available employment in the territory of another Member State with the same priority as nationals of that State." Directive 68/360: "Art 1 Member States shall, acting as provided in this Directive, abolishe restrictions on the movement and residence of nationals of the said States and of members of their families to whom Regulation (EEC) No 1612/68 applies. Art 3 1 Member States shall allow the persons referred to in Art 1 to enter their territory simply on production of a valid identity card or passport. Art 4 1 Member States shall grant the right of residence in their territory to the persons referred to in Art 1 who are able to produce the documents listed in paragraph 3." At the meeting of the Council of Ministers adopting Regulation 1612%68 and Directive 68/360, the Member States adopted in interpretative declaration which reads:"the persons referred to by Article 1 (of Directive No 68/360) that is to say nationals of a Member State who move to another Member State in order to find employment, have a minimum period of three months in which to do so; if at the end of that period they have not found employment, their stay in the territory of that other State may be terminated. However, if during that period the above-mentioned persons become dependent on public support (social assistance) in that other State they may be requested to leave its territory."
Neither the Treaty nor Regulation 1612/68 deals specifically with rights to enter or remain, but Directive 68/360 (which does deal with these rights) is based on those persons specified in Article 1 of Regulation 1612. Having regard to the general principle of mobility on which the freedom of workers is founded whether the wording of Article 1 of Regulation 1612 excludes those in search of work is at the least uncertain. Further, it also seems to us uncertain whether Article 483 of the Treaty should be read as referring to the right to move to accept offers of employment made or simply the right to accept such offers when made. In Giangregorio (2826) and Lubbersen (3131) the Tribunal had to consider the right of residence of a person who had worked but who had become unemployed. In so doing the Tribunal expressed the view that the definition of "workers" under Article 48 and relevant Regulations and Directives "extends" to potential workers -- including those who are "actually working in paid employment or who seriously wish to do so" or "perform or wish to perform an activity of an economic nature", citing the European Court decision in Levin [1982] 2 CMLR 454. In our view, the attitude of the European Court in Levin (in which the interpretative declaration was cited by the Commission) is clear. The reference to persons seriously wishing to work cannot but be construed as referring to potential workers. In Levin the Court underlined the approach in linking the right of a national of a Member State to enter and stay in another Member State to the "status of a worker or of a person pursuing an activity as an employed person or desirous of so doing". We are conscious that in R v Secretary of State for the Home Department, ex parte Muhammad Ayub [1983] I AR 20, Forbes J held that a national of an EEC Member State going to another Member State to seek employment "rather than take up employment already offered" was not within the Regulations or the Treaty; and that it is the interpretative declaration cited above which equated those seeking work with those who had employment offered. As the learned Judge said, whatever force that declaration has it is certainly not of direct effect so that an individual can rely on it. There is no evidence, however, that any decision of the European Court was cited in Muhammad Ayub and, as we say, in our respectful view the approach of the European Court seems to us to be clear in including those seeking work within the principle of freedom of movement of workers and hence the protection of the Treaty and secondary legislation. It has to be recalled that Forbes J was concerned first with the claimed right of a British citizen having sought employment in Belgium to rely thereby on the rights of an EEC worker in returning to accept an offer of employment in this country and secondly with the construction of HC 394. We are concerned with the right of a national of a Member State of the EEC to enter another Member State to seek work and with the construction of HC 169. In the context of the issue before us we are thankfully relieved from the invidious task of deciding between the sources of authority: for whatever the scope of directly applicable EEC law or such law having direct effect, HC 169 makes it clear that the rules confer rights on potential as well as actual workers -- thereby presumably keeping faith with the interpretative declaration. So far as relevant 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 of establishment or the rights relating to the provision or receipt of services as provided in Community law."
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 six months without further formality, but is required to apply for a residence permit if he wishes to stay longer (see paragraph 140)." 140. A person admitted in accordance with Part VI of these rules may normally remain in the United Kingdom for six months before applying for a "Residence Permit for a National of a Member State of the EC". Such a residence permit will be issued if the person: (a) has entered employment; . ." 141. In the case of a person to whom paragraph 140(a) applies the residence permit should be limited to the duration of the employment if this is expected to exceed three months but to be less than 12 months; otherwise the residence permit should normally be valid for five years. A residence permit should not normally be issued if the person has not entered employment within six months of the date of entry to the United Kingdom nor if during that time he has become a charge on public funds." 143. A person may be required to leave the United Kingdom, subject to appeal, if he falls a charge on public funds before issue of a first residence permit, or if, after six months from admission, he fails to meet the requirements of paragraph 140(a) or (b) above. After written warning, the duration of a residence permit may be curtailed, subject to appeal, if it is evident that the holder no longer satisfies the conditions at 140(a), (b) or (c) above. However, the duration of a residence permit issued to a worker will not be curtailed solely on the grounds that he is no longer in employment where this is because he is temporarily incapable of work as a result of illness or accident or because he is involuntarily unemployed." The rules therefore draw a clear distinction between the right to seek employment (for which the six month "free period" is provided) and the right to a residence permit based on employment. If any right to remain to seek employment can be said to be rooted in EEC law it must depend on implications from the substantive right. In our view it is legitimate in construing the content of any such implied right to have regard to the interpretative declaration, and even if this be not so it seems clear to us, on general principles, that such a right could not exceed the period of six months provided by the rules. Further, the restriction on the ability to stay if funds are claimed whilst seeking work does not seem to us to be inconsistent with the principle of mobility of labour. In our view, therefore, the right of an EEC national to enter this country to seek work is that conferred by HC 169 ie the right to remain for six months provided there is no reliance on public funds. The right of residence of a person who is in work is that rooted in Directive 68/360 and to a large extent again reflected in HC 169. Given the principles of Suthendran and the right of residence on qualifying as a worker, the jurisdictional problem for the appellate authorities is as it was posed in Kazamias in respect of freedom in establishment. Whether or not an application is after expiry of limited leave (and therefore caught by Suthendan) will turn on whether the applicant has the right of residence on which he relies at the time of the application ie the jurisdictional and substantive issues are mutually dependent. If the applicant has been or is in employment at the time of the application he may have a right of residence and his "leave" will be represented by the period of the permit to which he is entitled. In our view (consistent with the view expressed in Kazamias as to the freedom of establishment): 1. Any application based on the right to seek work is not based on a claim of acquired residence and whether it is made while leave is current will depend on leave formerly granted or right of residence formerly acquired. 2. Any application based on actual (or even past) work is based on a claim of acquired residence and hence is also a claim that the applicant has limited leave at the time of the application and is entitled to remain because of it. As in Kazamias we stress that the jurisdictional point presently at issue has nothing to do with the merits of the claim nor the need to produce evidence in support of it. It is solely concerned with the basis of the claim. In this case the appellant's claim is based on actual work and having actually set up a business. While he was inreceipt of public funds, and therefore was required to leave the United Kingdom, his present application in effect alleges a right to residence in 1983 and 1984. It follows from the principles as set out above that the case attracts a statutory right of appeal and we so advise.DISPOSITION:
Statutory right of appeal advised.Disclaimer: Crown Copyright
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