Bhavsar (Late Application for PTA: Procedure)
| Jurisdiction | UK Non-devolved |
| Judge | Rimington,Gleeson,Lane J |
| Judgment Date | 12 April 2019 |
| Neutral Citation | [2019] UKUT 196 (IAC) |
| Date | 12 April 2019 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Lane J (President) and Rimington UTJ
Mr E Metcalfe instructed by the Government Legal Department, for the Secretary of State;
Mr A Metzer QC and Ms S Saifolahi for the Claimant.
Banger (Unmarried Partner of British National) [2017] UKUT 125 (IAC)
Coman and Others v Inspectoratul General pentru Imigrari and Ministerul Afacerilor Interne (Case C-673/16); [2019] 1 WLR 425; [2018] Imm AR 1314; [2019] INLR 1
Dieter Kraus v Land Baden-Württemberg (Case C-19/92)
Gaydarov v Director na Glavna direktsia “Ohranitelna politsia” pri Ministerstvo na vatreshnite raboti (Case C-430/10)
Khan v Secretary of State for the Home Department [2017] EWCA Civ 1755; [2018] 1 WLR 1256; [2018] Imm AR 440; [2018] INLR 39
R v Immigration Appeal Tribunal and Surinder Singh ex parte Secretary of State for the Home Department (Case C-370/90); [1992] ECR I-4265; [1992] 3 All ER 798; [1992] 3 CMLR 358; [1992] Imm AR 565
SM (Algeria) v Secretary of State for the Home Department [2018] UKSC 9; [2018] 1 WLR 1035; [2018] 3 All ER 177; [2018] INLR 368
SM (withdrawal of appealed decision: effect) Pakistan [2014] UKUT 64 (IAC); [2014] Imm AR 662; [2014] INLR 681
Sala (EFMs: Right of Appeal) [2016] UKUT 411 (IAC); [2017] Imm AR 141
Secretary of State for the Home Department v Banger (Case C-89/17); [2019] 1 WLR 845; [2019] 1 CMLR 6; [2018] Imm AR 1205; [2018] INLR 628
Charter of Fundamental Rights of the European Union, Article 47
Directive 2004/38/EC (“the Citizens Directive”), Articles 2(2) & 3(2)(b)
Immigration (European Economic Area Nationals) (EU Exit) Regulations 2019, regulation 3
Immigration (European Economic Area) Regulations 2016, regulations 9, 12(4), 17(5), 18(4) & 36
Treaty on the Functioning of the European Union, Article 21
Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, rules 2 & 20
Tribunal Procedure (Upper Tribunal) Rules 2008, rule 39
European Union law — family members — extended family members — unmarried partners — doctrine of direct effect — procedure and process — rights of appeal — 2016 Regulations amended — no retrospective effect
The Claimant, a citizen of South Africa, appealed against the refusal of a residence card under the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”). Her partner was a British citizen with whom she had formerly resided in South Africa. In May 2010, the couple migrated to the Netherlands, where her partner worked. The Claimant was granted a Dutch residence card as an extended family member (“EFM”) of an EU citizen. In 2013, the couple decided to move to the United Kingdom. Prior to moving, the Claimant applied to the Secretary of State for the Home Department for a residence card. The Secretary of State refused the application on the ground that an unmarried partner was not recognised as the family member of a British citizen. The First-tier Tribunal allowed the Claimant's appeal against that decision. The Secretary of State appealed to the Upper Tribunal (“UT”) on the ground that the principles set out in R v Immigration Appeal Tribunal and Surinder Singh ex parte Secretary of State for the Home Department (Case C-370/90) did not apply to unmarried partners.
The UT stayed the proceedings and referred several questions to the Court of Justice of the European Union (“CJEU”) for a preliminary ruling. In July 2018, the CJEU ruled that the Surinder Singh principle did extend to unmarried partners in a durable relationship as envisaged by Article 3(2)(b) of Directive 2004/38/EC (“the Citizens Directive”). The CJEU also ruled that such third country nationals must have available to them a redress procedure in order to challenge a decision to refuse a residence authorisation taken against them.
At the resumed hearing before the UT, the Secretary of State confirmed that the Claimant would be issued with a residence card and invited her to agree to “summary disposal”. The Secretary of State submitted that the instant proceedings were governed by the 2006 Regulations, which, according to the Supreme Court's decision in SM (Algeria) v Secretary of State for the Home Department[2018] UKSC 9, provided a right of appeal in cases such as the instant. As the Claimant would be granted a residence card, no issue could arise as to the lawfulness of the appeal provisions in the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”). The Secretary of State indicated that he intended to lay before Parliament legislation amending the 2016 Regulations in order to reintroduce appeal rights for EFMs. The Claimant objected to summary disposal and invited the UT to allow the appeal on all grounds with full reasons.
Held, substituting a fresh decision allowing the Claimant's appeal:
(1) The UT could not dispose of the appeal by way of consent under rule 39 of the Tribunal Procedure (Upper Tribunal) Rules 2008 as the Claimant did not consent to that method of disposal. The decision of the Secretary of State in 2013, the target of the statutory appeal, had not been formally withdrawn but had been effectively superseded by the acknowledgment of the findings of the CJEU and the issue of the residence card. The UT retained jurisdiction to decide the appeal, notwithstanding the Secretary of State's actions: SM (withdrawal of appealed decision: effect) Pakistan[2014] UKUT 64 (IAC) applied. Bearing in mind the overriding objective and having regard to the long duration of the instant proceedings not least through the reference to the CJEU, a summary disposal was not appropriate. The Claimant was entitled to a right of appeal under the 2006 Regulations. The First-tier Tribunal had jurisdiction to hear an appeal from a refusal by the Secretary of State to exercise his discretion to grant a residence card to a person claiming to be an EFM: Khan v Secretary of State for the Home Department[2017] EWCA Civ 1755 and SM (Algeria) applied (paras 27 – 31).
(2) The 2016 Regulations specifically excluded a right of appeal for EFMs. Those Regulations had been amended pursuant to the Immigration (European Economic Area Nationals) (EU Exit) Regulations 2019, with effect from 29 March 2019, so as to provide EFMs with a right of appeal. That did not have retrospective effect. It was open to those EFMs against whom a decision was made under the 2016 Regulations but before 29 March 2019 to request a new decision from the Secretary of State in order to generate a right of appeal (paras 32 – 38).
(3) Alternatively, the EFM may invoke the doctrine of direct effect under EU law in relation to a decision which fell into the lacuna between the 2006 Regulations and the amended 2016 Regulations, and apply under rule 20 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 for an extension of time to provide a notice of appeal to that Tribunal. The doctrine of direct effect meant that where an obligation was sufficiently clear, precise, and unconditional it was capable of direct enforcement under the ‘vertical direct effect’ concept. Individuals who had free movement rights or who otherwise were able to invoke EU law, such as EFMs, which the UK had failed to implement in its domestic legislation, may invoke the doctrine. The CJEU's judgment in the instant case indicated that a full merits appeal and thus a statutory appeal was required. First, the judgment referred to a redress procedure which must be able to decide whether the refusal decision was founded on a sufficiently solid factual basis. The nature of that redress procedure was more aligned with the process in a statutory appeal than judicial review. Secondly, the Secretary of State had effectively recognised that aspect of the judgment by producing legislation in express recognition of that ruling, which offered a statutory appeal (paras 39 – 43).
(4) The Surinder Singh principle operated so as to require the Secretary of State to facilitate the provision of a residence authorisation to the non-Union unmarried partner of an EU citizen. The Claimant's appeal was allowed under the 2006 Regulations (para 44).
Upper Tribunal Judge Rimington:
[1] While the application for permission to appeal was made by the Secretary of State, we shall refer to the parties as they were described before the First-Tier Tribunal.
[2] The full background to this appeal is set out in the reported decision Banger (Unmarried Partner of British National)[2017] UKUT 00125 (IAC) and will not be repeated here save for context.
[3] The essential facts were not in dispute. Simply put, the appellant, a South African national, appealed against the refusal of a residence card under the Immigration (European Economic Area) Regulations 2006. Her partner, Mr Rado, is a British national with whom she formerly resided in South Africa, from January 2008. In May 2010, both migrated to The Netherlands, where her partner worked. They lived together in The Netherlands for five years and the Appellant was granted a Dutch residence card in her capacity of an extended family member (EFM) of an EU citizen. Three years later the Appellant and her partner decided to move together to the United Kingdom. Prior to moving, the Appellant applied to the Secretary of State for the Home Department (the ‘Secretary of State’) for a residence card. On 26 September 2013, that application was refused in the following terms:
“Your application has been considered under regulation 9 which states that to qualify as the family member of a British citizen you must show that you are either the spouse or civil partner of the British citizen. An unmarried partner is not recognised as the family member of a British Citizen. You do not have a basis of stay in the United Kingdom under the...
To continue reading
Request your trial
-
Upper Tribunal (Immigration and asylum chamber), 2019-04-12, [2019] UKUT 196 (IAC) (Bhavsar (late application for PTA: procedure))
...ar-SA } a:link { color: #0000ff } Upper Tribunal (Immigration and Asylum Chamber) Bhavsar (late application for PTA: procedure) [2019] UKUT 00196 (IAC) THE IMMIGRATION ACTS Heard at Field House Decision & Reasons Promulgated On 7 March 2019 ………………………………… Before THE HON. MR JUSTICE LANE, PRE......
-
Upper Tribunal (Immigration and asylum chamber), 2019-07-01, [2019] UKUT 217 (IAC) (R (on the application of Sutharsan) v Secretary of State for the Home Department (UT rule 29(1): time limit))
...The applicant’s interpretation, however, would entirely defeat this purpose. 9. In Bhavsar (late application for PTA: procedure) [2019] UKUT 00196 (IAC), the Upper Tribunal examined the effect of amendments made by SI 2018/511 to rule 33 (Application for permission to appeal to the Upper Tr......
-
Upper Tribunal (Immigration and asylum chamber), 2021-05-28, HU/08115/2019
...because it was made out of time. There was no error in so doing, as confirmed in Bhavsar (late application for PTA: procedure) [2019] UKUT 00196 (IAC). As the application had not been admitted, the Upper Tribunal, when considering the renewed application for permission, was required to appl......
-
Upper Tribunal (Immigration and asylum chamber), 2020-04-28, PA/07951/2019
...Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698 as amended) applied (see Bhavsar (late application for PTA: procedure) [2019] UKUT 196 (IAC)). In particular, by virtue of rule 21(7)(b): “The Upper Tribunal must only admit the application if the Upper Tribunal considers that it ......