The case of AB v Home Office raises the question of whether the doctrine of state liability is robust enough to remedy situations where national officials misapply EU law. The case concerned Ms C, a Bolivian national, who entered the UK as a student in 2006. Soon after arriving she met Mr B, a Swedish citizen who had lived in the UK since about 1996. Their daughter was born in London in May 2007: as the baby girl was given Swedish citizenship, she was like her father a migrant Union citizen. Ms C’s student visa expired in January 2008: in March 2008 she applied to the Home Office for an EEA residence card. The ground cited was the existence of a durable relationship with Mr B, a Union citizen and at that time a migrant EU worker. The events that befell them are noteworthy for many reasons but this note will focus on just two: the rights of third country nationals who are not ‘family members’ under EU citizenship law and the limits of the remedy of state liability
A hierarchy of rights: from ‘extended family member’ to a ‘family member’
The substance of citizenship rights under Article 20 TFEU and the direct effect of the citizenship right to reside under Article 21 TFEU have been established in Grzelczyk and Baumbast respectively. It is also established that these Treaty articles do not provide absolute rights but are subject to the conditions and limitations laid out in secondary legislation, primarily the Citizenship Directive (CD) 2004/38 which confers direct rights on Union citizens and EEA nationals, and derived rights upon their ‘family members’ and ‘extended family members.’ The former, defined in Art 2(2) CD include the spouse, registered partner and dependent relatives in the descending or ascending line – they enjoy an automatic right to reside with a Union citizen who satisfies the relevant conditions of residence in Article 7 CD. It excludes co-habitees or unmarried partners, like Ms C, and same-sex partners who are not in a civil relationship: such persons fall into the category of ‘extended family members’, defined in Art 3(2) CD. These ‘extended family members’ do not have an automatic right to residence: the member state ‘shall, in accordance with its national legislation, facilitate entry and residence’subject to an ‘extensive examination of the personal circumstances of these people’but has the discretion to deny such, although under the Directive any denial must be justified. These rules were transposed into UK law by the 2006 Regulations. The distinction between a ‘family member’ and ‘extended family member’ was incorporated using the language of the Directive. The latter also enjoyed an extended right of residence as long as it could be proven to the decision maker that a durable relationship existed with a Union citizen who was a ’qualified person.’
AB makes clear that in both the Citizenship Directive and the 2006 Regulations co-habitees, of any nationality, inhabit a separate and lesser legal sphere. Unlike couples who formalise their relationship via marriage or a civil partnership, the ‘extended family member’ of a migrant Union citizen is not a ‘family member’ until the member state decides that this would be appropriate. The Directive defers to the national authorities and gives no guidance on the scope or method of the ‘extensive examination’ that must be undertaken. It is thus likely that this will differ from member state to member state and member states exercise their regulatory autonomy in different ways. This is therefore a very murky area in EU citizenship law that may need to be clarified at some stage in the future. Until then, migrant Union citizens who do not formally register their relationship with their partners live on unstable ground, subject as seen in this case to the whim of Home Office officials and enjoying less certainty than British nationals who are co-habitees.
The Home Office mistakes and misapplication of EU law
It seemed that the Home Office initially considered it appropriate to grant Ms C a residence card. In response to Ms C’s application for a residence card, in April 2008 it sent her a letter containing her Certificate of Application. Problems began when this letter did not arrive: it had no flat number and used the wrong postcode. Other communication seemed to go awry and by October 2009, when Ms C requested the return of her passports to facilitate travel abroad, the application had barely progressed. She was told that she would not be able to return into the UK, as she had no leave to remain. Indeed, in February 2010 she was only able to re-enter the UK with her EU citizen daughter by seeking asylum. In November 2009 the Home Office did refuse the application of Ms C, but this was on the basis of lack of evidence of family life, (despite the materials sent confirming this). The application for asylum was also refused in a letter sent on behalf of the Home Secretary by a Mr Iling. In explaining the reasons for the refusal, the letter also made reference to the immigration status of Mr B. Whilst it was accepted that Ms C and Mr B shared a family life, Mr B’s status as a Union citizen was questioned because he was now in receipt of income support. It was therefore questioned whether he was a ‘qualified person’.
As Salter QC went on to make clear in the proceedings before him, Mr Iling had a faulty understanding of EU law on both free movement of workers and EU citizenship. Although working full time when the events began in March 2008, by September 2009 Mr B was a student. Even when on a low income, he would qualify as a ‘worker’ in EU law under Article 45 TFEU – as far back as Kempf, the CJ had ruled that the status of worker was not dependent upon the level of income – and as a student undergoing vocational training, as per the CJ decisions in Brown, Bernini and Gravier he would retain this status. Cases such as Collins and Trojani have also made clear that reliance on social security does not undermine enjoyment of the rights of residence as a Union citizen. However, having misunderstood these points and taken an ‘unduly simplistic and adversarial approach to his task’ , Mr Iling concluded that Mr B was not a ‘qualified person.’
His mistake was, however, corrected at the second appeal hearing in July 2010, where a second Home Office official, Mr Walker, both conceded a material error of law and gave an undertaking to the Upper Tribunal Judge to issue Ms C with a residence card. By August 2010 this had still not been issued. Instead there followed within the Home Office an email discussion considering how to avoid the issuance of the residence card. In September 2010, Ms C launched a claim in the Epsom County Court seeking damages from the UKBA and requested an injunction requiring Mr Walker and the Home Office to perform the undertaking given in July. The proceedings were transferred to the Queens Bench in October 2010.
The faulty claims
Mr B. based the claim in the Epsom County Court upon two failures: the failure to issue Ms C a certificate evidencing her application for a residence card in accordance with Article 10 of the Citizenship Directive and Regulation 17(1) of the UK Regulations implementing it; and secondly the failure to issue Ms C a residence card, again in accordance with Article 10 of the Citizenship Directive and Regulation 17(3) of the same UK Regulations. However it was doomed to fail. First, the six month time frame for issuance of the Residence card laid out in Article 10 CD applied only to ‘family members’: as explained above Ms C did not have this status, but had to apply for it. Secondly, the residence card only had to be issued under Art 3(2)(b) CD upon presentation of ‘proof of the existence of a durable relationship with the Union citizen.’ This had not been provided at the time of the refusal in November 2009. However in the absence of such proof, Regulation 17(5) did not apply and thus there was no obligation to conduct an ‘extensive examination’ or give reasons for the refusal.
Consequently, Salter QC held that Ms C had no right of residence under EU law: as the unmarried partner of Mr B it remained within the discretion of the Home Office to grant her such as right or not, as it saw fit based upon the evidence supporting the application. Even given Mr B’s status as an EU citizen, and therefore the existence of a durable relationship with a ‘qualified person’, she had no automatic right of entry and residence in the UK granted by EU law . Nor did Ms C derive a right from Mr B – in an attempt to apply the idea of genuine enjoyment of the status as a Union citizen recently laid out in Zambrano and Dereci, Mr B argued that if his partner and child could not live with him, his own right of residence would be deprived of any useful effect: any restrictions imposed by the Directive or 2006 Regulations were inconsistent with Article 20 TFEU, which he claimed ‘precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union.’  This argument was easily dismissed by Salter QC – the Directive was not a ‘national measure’ thus this did not apply.
Ironically, the claim would have been stronger if it had been based upon older established case law. Mr B could have asserted the rights of Ms C as a mother and carer of his daughter D, a baby Union citizen. Salter QC noted scope for a successful argument for residency based upon the rights of D as an EU citizen to mothering as per Baumbast, Chen and Carpenter. Due to the presence of a cross border element, she would not have to show that her presence was essential as per Zambrano and Dereci which is fortunate as the presence of the father would have undermined this claim. Under the former line of cases the CJ has applied a more generous test to determine the residency rights of women from beyond the EU who are mothers of infant Union citizens. This was not, however, raised this as a ground for her claim to residency.
The limits of state liability
There were clearly a number of errors made by the Home Office which were the direct cause of the difficulties experienced by Mr B, Ms C and D. Under EU law, the state is liable to pay damages for a breach of EU law where certain conditions are met. These conditions, as set out in Francovich are three-fold: First, the rule of law infringed must be intended to confer rights on individuals; there must be a direct causal link between the breach of the obligation incumbent on the state and the loss or damage sustained by the injured parties,and the breach had to be sufficiently serious. It was not necessary for cases to involve fault or serious misconduct. Ms C failed at the first condition – as explained above, as an extended family member, the Directive did not give her any rights, and neither did the UK 2006 Regulations . In the absence of any a right, Salter QC concluded that no basis for a claim for damages under the Francovich principle could arise. Beyond this, he argued that despite the mistakes, delays and mis-application of EU law, the breach would not reach the Brasserie threshold of being ‘sufficiently serious.’ The test for this condition were helpfully repeated in the recent case of Cooper, the first claim brought in the UK for damages pursuant to the CJ’s decision in Koebler.
Unfortunately, there was also no satisfactory remedy for the family under national law: the strongest option – the tort of misfeasance in public office – required evidence of an intention on the part of the Home Office to injure the claimants or knowledge that they had no power to act as they did. Yet Salter QC found that the mistakes of the Home Office and its misapplication of EU law had ‘fallen short of the standard of performance’ which the claimants ‘were reasonably entitled to expect from a department of Her Majesty’s Government.’ After deciding that such maladministration did not amount to a breach of Article 8 ECHR – the permit was finally issued in November 2010 thus the family had ultimately been able to live together despite the disruption to their lives – the action was thus dismissed. All that remained available was a complaint to the Home Office itself, via their MP to the Parliamentary Ombudsman.
It seems wrong that none of these three sophisticated systems of law – English, European Union and the Convention on Human Rights – was strong enough to provide an adequate remedy in this case. Even the EU Charter could not help: Article 41 providing rights of administration applies only to the institutions and bodies of the Union. It is difficult to read the case without a strong feeling of injustice and dissatisfaction. Whilst law is increasingly seen as a normalising voice, it provides an insight on the limits of the law. There remain just three words for Union citizens planning to migrate with their co-habiting partner – Formalise, Formalise, Formalise.