Boukssid v. Secretary of State for the Home Department

BOUKSSID v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Court of Appeal
Stuart-Smith, Morritt and Waller LJJ
3 March 1998

European Community - Indefinite leave to remain (ILR) - Whether non - EC national spouse of British citizen who entered UK pursuant to EC law was entitled to ILR prior to completion of 4 years residence - Whether para 255 of HC 395 gave rise to discrimination contrary to provisions of EC law - Whether person who enters UK pursuant to Community rights is 'admitted' to UK - Whether applicant could rely on amalgam of EC and national law - Whether applicant had right of appeal against decision of Secretary of State to refits ILR - Whether judicial review is effective remedy - European Community Treaty 1957, Art 6 - Regulation 1612168, Art 7(2 )- Immigration Act 1971, 14(1) - Immigration (European Economic Area) Ord 1994, art 18 - Statement of Changes in Immigration Rules (HC 395), paras 255, 287 The appellant, a Moroccan woman, married a British citizen on 13 November 1993 at a time when she was pursuing an appeal against a refusal of leave to remain in the UK as a student. Prior to the determination of the appeal she and her husband went to the Netherlands where her husband was employed from approximately September 1994. On 23 December 1994 she applied at the British Consulate General in Amsterdam for leave to settle in the UK and was issued with a family permit as the dependent of an European Economic Area (EEA) national. On 31 January 1995 she was admitted to the UK without leave. She then applied for indefinite leave to remain pursuant to art 4(4) of Council Directive 68/360/EEC which states that 'a member of the family who is not a national of a Member State shall be issued with a residence document which shall have the same validity as that issued to the worker on whom he is dependent'. This application was refused by the Secretary of State on the basis of the applicant's failure to satisfy para 255 of HC 3951[1] but she was granted a residence permit valid for 5 years. Her appeal against the refusal of indefinite leave to remain was dismissed by an adjudicator, as was her appeal to the Immigration Appeal Tribunal, on the basis that the Secretary of State had correctly refused indefinite leave to remain under para 255 and that in any event the appellant had no right of appeal to the appellate authorities. The appellant appealed to the Court of Appeal where it was argued that: (a) para 255 was not applicable to the appellant or her husband; (b) para 255 led to discrimination on grounds of nationality contrary to Art 6 of the European Community Treaty 1957 or Art 7(2) of Regulation 1612/68 because it required that her husband should have been living and working in the UK for 4 years before she could apply for indefinite leave to remain whereas, under para 287 of HC 395, spouses of those present and settled in the UK qualify for indefinite leave to remain after 12 months of residence in the UK; and (c) the Tribunal had been wrong to hold that the appellant had no rights of appeal to the appellate authorities. Held - dismissing the appeal – (1)As the words 'EEA national' found in para 255 of HC 395 were defined2[2] so as to not include British nationals and their families, para 255 of HC 395 did not apply on its face to the appellant. However, as the appellant had similar rights to those who expressly fell within the provisions of para 255 and as her application was made under European law, the Secretary of State was correct in ascertaining whether the conditions laid down in para 255 were satisfied.

R v Immigration Appeal Tribunal and Surinder Singh ex parte Secretary of State for the Home Department considered.

(2)Paragraph 255 of HC 395 did not give rise to any discrimination on grounds of nationality so as to contravene Art 6 of the European Community Treaty or Art 7(2) of Regulation 1612/68. The conditions of entry and residence imposed on a spouse such as the appellant did not have to be at least equivalent to those granted by national law. Nor was the spouse of a national of a Member State who had gone to another Member State to work entitled, on returning to his own State, to be treated on the basis of an amalgam of the rules applicable to spouses of returning nationals and the rules applicable to the spouses of EEA migrant workers. The European law system and the national law system governing entry into the UK were separate and could not be amalgamated. Accordingly, the Tribunal had correctly dismissed the appellant's appeal on the basis of her failure to satisfy the requirements of para 255.

Secretary of State for the Home Department v Sahota; Mohammed Zeghraba v Secretary of State for the Home Department followed. R v Immigration Appeal Tribunal and Surinder Singh ex parte Secretary of State for the Home Department applied.

(3)The appellant could not rely upon the provisions of para 287 of HC 395 because she had entered the UK pursuant to her Community rights and as such could not be said to have been 'admitted' to the UK. (4)As the appellant was not a person with a limited leave under the Immigration Act 1971 to enter or remain in the UK, she had no right of appeal under s 14(1) of the 1971 Act. Nor did the appellant have a right of appeal under art 18 of the Immigration (European Economic Area) Order 1994 as she had not been 'refused' a document or had a document 'withdrawn'. The appellant did, however, have a right to apply for judicial review and despite the fact that judicial review was less beneficial a remedy than an appeal to an adjudicator, there was no violation of the principle of effective judicial control. Statutory provisions considered Immigration Act 197 1, ss 3 (2), 14(1) Immigration Act 1998, s 7(1) Immigration (Variation of Leave) Order 1976 (SI 1976/1572) Immigration (European Economic Area) Order 1994 (SI 1994/1895), art 18 Immigration Rules referred to in judgment Statement of Changes in Immigration Rules (HC 251), paras 50, 51, 151 Statement of Changes in Immigration Rules (HC 395), paras 5, 6, 7, 255, 281, 282, 283,284,285,286,287,288 International Treaties, Conventions and documents referred to in judgment European Community Treaty 1957, Art 6 Council Directive 68/360 EEC, Art 4(4) Regulation 1612/68, Art 7(2) Cases referred to in judgment Johnston v Chief Constable of the Royal Ulster Constabulary [1987] QB 129, [1986] 3 WLR 1038, [1986]3 All ER 135, ECJ R v Immigration.Appeal Tribunal and Surinder Singh ex parte Secretary of State for the Home Department (Case C-370190), [1992] Imm AR 565, ECJ R v Secretary of State for the Home Department ex parte Radiom and Shingara [1997]3 CMLR 703, ECI Secretary of State for the Home Department v Sahota; Mohammed Zeghraba v Secretary of Statefor the Home Department [1997] Imm AR 429, CA International cases referred to in judgment Comet BV v Produktschap voor Siergewassen [1976] ECR 2043, ECJ Schmid v Belgian State (Case C-310/91) [1993] ECR 1-3011, ECJ Netherlands v Reed [1986] ECR 1283, ECJ Mr P. Duffy QC and Mr T Eicke for the appellant Mr R. Plender QC for the respondent STUART-SMITH LJ: The appellant is a Moroccan national aged 27 who first arrived in the UK on 21 November 1992 with leave to remain for 6 months as a visitor. She applied for a variation of the conditions attached to her leave in order to remain as a student. When this was refused she appealed to an adjudicator and remained in the UK pending determination of her appeal (the first appeal). On 13 November 1993 she married Peter Stollery, a British citizen. Shortly before the determination of the first appeal she and her husband went to the Netherlands, where he was employed from about September 1994. The first appeal was then determined against her. On 23 December 1994 she applied at the British Consulate General in Amsterdam for leave to settle in the UK. Although this does not appear in the evidence, we were told by Mr Duffy QC, who appeared on her behalf, that she was told at the Consulate that if she applied for leave to enter under British immigration law, it might result in a period during which she would have to remain out of the country and therefore apart from her husband, while the usual inquiries were made. If, however, she exercised her Community law rights, she could return to the UK with him without delay. As a result of this in the form applying for UK entry clearance she put a tick against the question 'are you applying as a non-EC dependant of a European Community national?' And the form contains the entry under official use 'Applying under European Law'. She was issued with a family permit marked 'Dependant of an EEA National', and was admitted without leave on 31 January 1995. On 19 June 1995 her representatives applied on her behalf for 'a residence document in accordance with Council Directive (68/360-EEC), Art 4.4'. They added 'To coincide with Peter's status, we believe you must grant Fatima indefinite leave to remain'. On 27 July 1995 the Home Secretary issued the appellant with a residence permit, valid for 5 years. But the application for indefinite leave was refused on the basis that:

'In view of the fact that your husband has not remained in the UK in exercise of a Treaty right (as set out in the 1994 Order) for the last 4 years, the Secretary of State is not satisfied that you fulfil the conditions of para 255 of the Immigration Rules (HC 395).'

The notice further stated that the appellant 'was entitled to appeal against the decision under s 14(1) of the Immigration Act 1971 to the appellate authorities'. On 31 July 1995 the appellant lodged a notice of appeal against the Home Secretary's 'refusal to grant leave of the same duration as her husband' on the ground that the decision was not 'in accordance with the law'. On 20 March 1996 the adjudicator held that he had no jurisdiction to entertain her appeal. His grounds were that the application was made pursuant to European Community law and art 18 of the Immigration (European Economic Area) Order 1994 restricted appeals to the refusal of a residence permit or residence document and to the withdrawal of a residence permit or residence document. He said that 'The appellant wanted a variation of her residence permit and art 18 gave no right of appeal in such a case'. The appellant appealed to the Immigration Appeal Tribunal (IAT) and by its determination of 30 October 1996 the IAT dismissed the appeal both in relation to her right of appeal and the refusal of indefinite leave to remain on the basis of para 255 of the Immigration Rules. In relation to the latter point the IAT held that:

'... the Secretary of State had acted properly and not derogated from her rights under EC law by issuing her with a residence document valid for 5 years and which after 4 years could have been endorsed to show permission to remain in the UK indefinitely.'

By notice dated 13 November 1996 the appellant sought leave to appeal to the Court of Appeal. The IAT refused leave. At that time the principal ground of appeal was that the IAT had erred in law because:

'The EC worker on whom the appellant is dependent is a British national who is entitled to remain here without leave on a wholly indefinite basis. The provision of European Community law, on its face, entitles the appellant to a residence document of similar validity, namely indefinite leave to remain.'

Reliance was placed on a decision of a differently constituted IAT in the case of Secretary of State for the Home Department v Sahota; Mohammed Zeghraba v Secretary of State for the Home Department [1997] Imm AR 429. The second ground of appeal related to the right of appeal. Because of the conflicting decisions of the IAT the Court of Appeal granted leave to appeal. That conflict however was resolved in favour of the Secretary of State by the decision of this court in Secretary of State for the Home Department v Sahota; Mohammed Zeghraba v Secretary of State for the Home Department. In the light of this decision Mr Duffy has not pursued the first ground of appeal, though he reserved the right to argue elsewhere that the case was wrongly decided. Nevertheless that case has an important bearing on the issues raised in the present appeal. In all material respects the essential facts of these two cases were similar to those in the present case. At that time the relevant Immigration Rules were HC 251. There are differences between the particular paragraphs, namely 151 of HC 251 which was the equivalent of para 255 of HC 395 and paras 50 and 51 of HC 251 which are the equivalent of paras 281-285; Mr Duffy attaches some importance to this difference and I shall return to this later in this judgment. The court in Sahota identified the issue in these terms (at 433):

‘... whether spouses of citizens of the United Kingdom who are not themselves nationals of any Member State of the Community are entitled to be granted indefinite leave to remain in the United Kingdom when they have entered from another Member State accompanying their spouses who have returned to the United Kingdom to work.'

The court answered the question in the negative, holding that: '(1)The authorities showed that the systems of EC and national law in relation to immigration control were regarded as distinct. There was no authority for the proposition that as a matter of Community law they should be regarded as a single system. (2)The wives of the respondent Sahota and the appellant Zeghraba were British citizens and did not rely on their Community rights in returning to the United Kingdom. However to establish the extent of their husbands' rights under Community law it was necessary first to establish their own rights under EC law. Their husbands' rights derived from their rights and were equal to them.' By amendment of the notice of appeal in the present case a further ground has been added. It is as follows:

'The IAT further erred in upholding the respondent's decision that the appellant would only qualify to apply for indefinite leave to remain under para 255 of the Immigration Rules (HC 395), ie after her husband has been living and working in the UK for 4 years and continues to do so. Under para 287 of the Immigration Rules (HC 395) spouses of those present and settled in the UK qualify for indefinite leave to remain after 12 months of residence in the UK. To deny the appellant the benefit of this latter right and to make her eligibility for indefinite leave to remain subject to the more stringent conditions contained in para 255 of the Immigration Rules (HC 395) constitutes discrimination on grounds of nationality contrary to inter alia Art 6 of the EC Treaty and Art 7(2) of Regulation 1612/68 which provides that:

"He shall enjoy the same social and tax advantages as national workers".'

Mr Duffy's argument in support of this ground of appeal has shifted and developed, he would no doubt say had been refined, in the course of argument. The first point that he makes is on the construction of the present rules. Paragraph 255 of HC 395 is in the following terms:

'An EEA national (other than a student) and the family member of such a person, who has been issued with a residence permit or residence document valid for 5 years, and who has remained in the United Kingdom in accordance with the provisions of the 1994 EEA Order for 4 years and continues to do so may, on application, have his residence permit or residence document (as the case may be) endorsed to show permission to remain in the United Kingdom indefinitely.'

By para 6 'EEA national' means:

'... a national of a state which is a contracting party to the European Economic Area Agreement other than the United Kingdom...' (my emphasis).

Accordingly Mr Duffy submits that para 255 does not apply to Mr Stollery or the appellant and accordingly the Secretary of State was wrong to apply its provisions to the appellant. While I accept that the rule does not apply on its face, its applicability derives from European law. This is the result of the decision of the European Court of Justice in R v Immigration Appeal Tribunal and Surinder Singh ex parte Secretary of State for the Home Department (Case C-370/90). In that case it was held at 569, para 23 that:

'... when a Community national who has availed himself or herself of those rights returns to his or her country of origin, his or her spouse must enjoy at least the same rights of entry and residence as would be granted to him or her under Community law if his or her spouse chose to enter and reside in another Member State. Nevertheless, Articles 48 and 52 of the Treaty do not prevent Member States from applying to foreign spouses of their own nationals rules on entry and residence more favourable than those provided for by Community law.'

In these circumstances the appellant had similar rights under Community law to those who came expressly within the provisions of para 255. If, therefore, the appellant was applying under European law, as she was, the respondent was correct in seeing whether she satisfied the conditions laid down by that rule. Mr Duffy's second submission is that para 287 of HC 395 is applicable to her. This rule provides as follows:

'The requirements for indefinite leave to remain for the spouse of a person present and settled in the United Kingdom are that:

(i)the applicant was admitted to the United Kingdom or given an extension of stay for a period of 12 months and has completed a period of 12 months as the spouse of a person present and settled here; and

(ii)the applicant is still the spouse of the person he or she was admitted or granted an extension of stay to join and the marriage is subsisting; and

(iii)each of the parties intends to live permanently with the other as his or her spouse.'

Mr Duffy submits that when the appellant entered the UK on her return from Holland, she was 'admitted to the UK' within the meaning of this rule. At the time the Secretary of State's decision was taken she satisfied the other conditions within that paragraph, namely she had completed a period of 12 months as the spouse of Mr Stollery who was present and settled here, the marriage was subsisting and the parties intended to live together as husband and wife. It does not matter, submits Mr Duffy, how the person was admitted, provided he or she came here lawfully. In particular the expression does not mean admitted pursuant to leave. He supports this submission by reference to the principal legislation under which the Immigration Rules are made, ie s 3 (2) of the Immigration Act 1977 and s 7 (1) of the Immigration Act 1988 which provides:

'A person shall not under the principal Act require leave to enter or remain in the United Kingdom in any case in which he is entitled to do so by virtue of an enforceable Community right or of any provision made under section 2(2) of the European Communities Act 1972.'

The effect of the section is incorporated in the Immigration Rules in para 7. Mr Duffy submits that para 287 should be construed consistently with that principle. For my part I do not follow how this section supports the meaning of para 287 advocated by Mr Duffy. If, on its true construction, 'admitted' means admitted pursuant to leave, the section shows that persons entering pursuant to Community rights, do not require leave and therefore do not enter or remain pursuant to leave but by virtue of their Community rights. In my judgment it is clear from the context and whole scheme of the relevant rules that 'admitted' means admitted pursuant to leave. Moreover, I consider that the words 'for a period of 12 months' in subpara (1) govern both of the previous alternatives, namely 'admitted to the UK' and 'given an extension of stay'. Paragraph 5 of HC 395 provides:

'Save where expressly indicated, these Rules do not apply to a European Economic Area (EEA) national or the family member of such a national who is entitled to enter or remain in the United Kingdom by virtue of the provisions of the Immigration (European Economic Area) Order 1994.'

I do not see how a person exercising Community rights, under the Surinder Singh principle, can be in any different position. The rules relating to spouses of persons present and settled in the UK or being admitted on the same occasion for settlement are to be found in paras 281-288. Paragraphs 281-283 contain the requirement relating to those seeking leave to enter as such spouses. If they satisfy them they are to be granted leave to enter for an initial period of 12 months. Paragraphs 284-286 are concerned with those seeking an extension of leave, where they already have limited leave to enter. Provided they satisfy the conditions they may be granted an extension of leave for 12 months. Paragraph 287 lays down the requirements that have to be satisfied before indefinite leave is granted, and clearly forms the final step consequent upon prior fulfilment of either the para 281 route or the 284 route. It is inherent in the operation of these rules that inquiries have to be made to see whether the applicant fulfils the necessary conditions. In the case of a person seeking leave to enter under para 281 these will necessarily be made before the applicant enters. In the case of applicants under para 284 or 287 they will be present here with leave. These inquiries may take some time. It is also a necessary precondition of each of these rules that the spouse of the applicant is both present and settled in the UK. The appellant could in my opinion have applied under para 284 after her marriage and before she and her husband went to Holland. At that time she had limited leave to remain; it is true that the application for an extension to study as a student had been refused, but she had an appeal pending and her right to remain continued: Immigration (Variation of Leave) Order 1976 and Immigration Act 1971, s 14(1). If their departure for Holland was imminent, she might have had to ask for the postponement of the determination until Mr Stollery was again present in the UK. But the necessary inquiries to see whether the other conditions were fulfilled could have been undertaken in the meanwhile. Likewise had she done so in good time while in Holland, she could have applied under para 281, though again the determination would have to be delayed until Mr Stollery returned to the UK. But this would have allowed these further necessary inquiries to be made. Unfortunately, when she did apply to the British Consulate in Holland, there was not time to make these inquiries before their projected return, so that any application under para 281 would have meant the appellant staying out of the country and separate from her husband until they were completed. Hence it was that the appellant exercised her Community laws rights. Mr Duffy's principal argument is that the provisions of para 255 which requires 4 years' residence in accordance with the provisions of the EEA Order 1994 and which involves continuation of employment by the husband and continuation of the marriage is more onerous than the requirement of para 287 which involves only 12 months' residence coupled with the other conditions. This, he submits, constitutes discrimination on the grounds of nationality which is contrary to Art 6 of the European Community Treaty and Art 7(2) of Regulation 1612/68 in that it treats those in a situation governed by EC law differently from UK nationals and their spouses in a way that provides an obstacle to their integration into UK society and thereby undermines the mobility of workers within the Community. Article 6 of the European Community Treaty provides:

'Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.'

Article 7(2) of Regulation 1612/68 requires that a worker exercising his rights under EC law 'shall enjoy the same social and tax advantages as national workers'. This right is extended to the appellant (see Schmid v Belgium State (Case C-310/91) [1993] ECR 1-3011 where the rights were extended to the dependant daughters of a migrant worker). Social advantage has been broadly interpreted. In Schmid at 3043, para 18 the Court held that:

'... it should be interpreted as meaning all advantages which, whether or not linked to a contract of employment, are generally granted to national workers because of their objective status as workers or by virtue of the mere fact of their residence on the national territory, and whose extension to workers who are nationals or other Member States therefore seems likely to facilitate the mobility of such workers within the Community.'

Mr Duffy relies on the decision of the European Court of Justice in the case of Netherlands v Reed [1986] ECR 1283 as showing that the concept of ‘social advantage' extends to residence entitlements granted pursuant to national immigration law. In that case the Netherlands policy on aliens was that an alien who has a stable relationship with a Netherlands national may under certain conditions be permitted to reside in the Netherlands. Miss Reed, an unmarried British national, arrived in the Netherlands seeking employment. She did not succeed in finding anything, but applied for a residence permit on the ground that she was living in a stable relationship with Mr W, also a British national who was working in the Netherlands. The Court held, at 1303, para 28, that:

'... it must be recognized that the possibility for a migrant worker of obtaining permission for his unmarried companion to reside with him, where that companion is not a national of the host Member State, can assist his integration in the host State and thus contribute to the achievement of freedom of movement for workers. Consequently, that possibility must also be regarded as falling within the concept of a social advantage for the purposes of Art 7(2) of Regulation No 1612/68.

It must therefore be concluded that the Member State which grants such an advantage to its own nationals cannot refuse to grant it to workers who are nationals of other Member States without being guilty of discrimination on grounds of nationality, contrary to Arts 7 and 48 of the Treaty.'

I cannot accept Mr Duffy's submission which runs counter to the express language of the European Court in Surinder Singh in the passage which I have already cited. Nor do I accept Mr Duffy's submission that this passage is not relevant because the Immigration Rules in paras 281-287 are concerned with spouses of persons 'settled in the UK' which under para 6 is more widely defined than British nationals. But British nationals are more likely to be settled here than nationals of other States and therefore the same principles of non-discrimination apply to persons who are settled here. The European Court in Surinder Singh took care not to state that the spouse's conditions of entry and residence must be at least equivalent to those granted by national law, in the territory of the host State. Nor did it suggest that the spouse of a national of one Member State who goes to another to work is entitled, when he returned to his own State, to be treated on the basis of an amalgam of the rules applicable to spouses of returning nationals and the rules applicable to the spouses of EEA migrant workers. In fact Mr Duffy's submission would not eliminate discrimination but create it. As Judge LJ (with whose judgment Otton LJ and I agreed) said in Sahota at 439:

'According to Mr Duffy's submission Mr Sahota and Mr Zeghraba are entitled to indefinite leave to remain in the United Kingdom, that is, an unlimited right to reside, as a matter of Community law. Yet this is not an entitlement envisaged by any relevant Community Regulations or Directive, and would not be immediately available to every citizen of the Community entering the United Kingdom for a qualifying purpose nor, indeed, for his spouse. The privilege would be confined to British citizens and their spouses. If Mr Duffy's argument were correct, it would follow that the entitlement available to nationals of any other Member State of the Community and their spouses would as a matter of Community law, and in particular Art 4.4 of Directive 68/360, be different and more restricted than those available to Mr Sahota and Mr Zeghraba. In my judgment this would involve a discriminatory distinction in Community law against citizens of Member States other than the United Kingdom, by granting a privilege in the United Kingdom to United Kingdom citizens not enjoyed by citizens of other Member States entering the United Kingdom in exercise of identical rights of free movement. This is contrary to the fundamental principle of non-discrimination between citizens of the Community, and where applicable, their spouses.'

Judge LJ then cited Art 6 of the EC Treaty. The second ground of appeal relates to jurisdiction of the adjudicator and IAT. Jurisdiction to entertain an appeal must be derived from statute. The relevant statutory provision is s 14 (1) of the 1971 Act which provides:

'Subject to the provisions of this Part of this Act, a person who has a limited leave under this Act to enter or remain in the United Kingdom may appeal to an adjudicator against any variation of the leave (whether as regards duration or conditions), or against any refusal to vary it;...'

The appellant is not a person 'who has limited leave under the Act to enter or remain in the UK'. Article 18 of the Immigration (European Economic Area) Order 1994 provides:

'Subject to article 20(2), an EEA national or the family member of such a person–
(a) who is refused a residence permit or residence document, or
(b) whose residence permit or residence document is withdrawn,

may appeal against the refusal and section 14(l) of the 1971 Act3[3] shall apply to him as if he were a person who has a limited leave to enter or remain in the United Kingdom and appeals against a refusal to vary that leave.'

But the appellant was not refused a document. She was issued with a residence document of 5 years' duration. Her residence document has not been withdrawn. She does not therefore fall within the provisions of this article. Mr Duffy contends that to deny the appellant access to the immigration appellate machinery would be to violate the principle of effective judicial control, laid down in such cases as Marguerite Johnston v Chief Constable of the RUC [1986] ECR 1651 and R v Secretary of State for the Home Department ex parte Radiom and Shingara [1997] 3 CMLR 703, 736. But what is in issue here is not whether the appellant shall have a judicial remedy at all; but the from which the remedy shall take. The mere fact that there is no appeal under the provisions of s 14(1) of the 1971 Act or art 18 of the EEA Order does not mean she has no remedy. Since she contends the Secretary of State has a legal obligation to issue her a residence document of indefinite duration or indefinite leave to remain, she can challenge his refusal to do so by way of judicial review. In Comet BV v Produktschap voor Siergewassen [1976] ECR 2043, 2053 para 13, the Court said:

'... in the absence of any relevant Community rules, it is for the national legal order of each Member State to designate the competent courts and to lay down the procedural rules for proceedings designed to ensure the protection of the rights which individuals acquire through the direct effect of Community law, provided that such rules are not less favourable than those governing the same right of action on an internal matter.'

Mr Duffy lays emphasis on the proviso in this paragraph. He submits the remedy available to the appellant by way of judicial review is less beneficial than an appeal to an adjudicator. This may be so; but in judgment it does not assist the appellant. Mr Duffy is once again trying to amalgamate two quite separate systems, namely the provisions for entry within European law and those within national law, and have the best of both worlds. The appellant had a choice as to which route she wished take, she has the same rights of appeal or judicial review as anyone else seeking relief by that route. For these reasons I would dismiss the appeal. MORRITT LJ: I agree. WALLER LJ: I also agree. Appeal dismissed Leave to appeal to refused. Solicitors: Camden Community Law Centre for the appellant Treasury Solicitor

[1] Paragraph 255 reads: 'An EEA national (other than a student) and the family member of such a person, who has been issued with a residence permit or residence document valid for 5 years, and who has remained in the United Kingdom in accordance with the provisions of the 1994 EEA Order for 4 years and continues to do so may, on application, have his residence permit or residence document (as the case may be) endorsed to show permission to remain in the United Kingdom indefinitely.' [2] The definition of an 'EEA national' is found in art 2(1) of the Immigration (European Economic Area) Order 1994 and is adopted in para 6 of HC 395. The relevant part of para 6 is cited in the judgment. [3] Immigration Act 1971.

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