MA and SM (Zambrano: EU children outside EU)
| Jurisdiction | UK Non-devolved |
| Judge | Dawson,O'Connor,Dawson UTJ,O'Connor UTJ |
| Judgment Date | 19 July 2013 |
| Neutral Citation | [2013] UKUT 380 (IAC) |
| Date | 19 July 2013 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2013] UKUT 380 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
UPPER TRIBUNAL JUDGE Dawson
UPPER TRIBUNAL JUDGE O'Connor
For the Appellant in the first appeal: Mr Chukwudolue of Moorehouse Solicitors
For the Appellant in the second appeal: The Sponsor, M
For the Respondents: Mr P Deller, Senior Presenting Officer
MA and SM (Zambrano: EU children outside EU) Iran
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(1) In EU law terms there is no reason why the decision in Zambrano could not in principle be relied upon by the parent, or other primary carer, of a minor EU national living outside the EU as long as it is the intention of the parent, or primary carer, to accompany the EU national child to his/her country of nationality, in the instant appeals that being the United Kingdom. To conclude otherwise would deny access, without justification, to a whole class of EU citizens to rights they are entitled to by virtue of their citizenship.
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(2) The above conclusion is fortified by the terms of The Immigration (European Economic Area) (Amendment) (No.2) Regulations 2012 (SI 2012/2560), brought into force on 8 November 2012. Paragraphs 2 and 3 of the Schedule to the Regulations give effect to the CJEU's decision in Zambrano by amending regulations 11 and 15A of the Immigration (European Economic Area) Regulations 2006 in order to confer rights of entry and residence on the primary carer of a British citizen who is joining the British citizen in, or accompanying the British citizen to [regulations 11(5)(e) and 15A(4A)], the United Kingdom and where the denial of such a right of residence would prevent the Britisah citizen from being able to reside in the United Kingdom or in an EEA State.
1. We make an anonymity direction in both appeals. They each include consideration of the interests of a minor and, in the first appeal, the sponsor, who although now a British citizen, has been accepted to be a Refugee and is currently a vulnerable person. Such directions are to remain in place unless or until this Tribunal, or any other appropriate Court, directs otherwise. As such, no report of these proceedings shall directly, or indirectly, identify the appellants or any members of their family. Failure to comply with this direction could amount to a contempt of court.
2. With the consent of the parties, this conjoined determination sets out our reasons and decisions in the appeals in the Upper Tribunal. They are conjoined because of certain issues which are common to them, as follows:
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(i) the reach of the Zambrano v Office national de l'emploi ( Case C-34/09) principles to minor European citizens who have never entered the Union; and
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(ii) the correct approach under Article 8 in such situations taking account of the respondent's concession reiterated in Izuazu (Article 8 – new rules) [2013] UKUT 00045 (IAC) which is referred to below.
3. The first named appellant, an Iranian national, lives in Turkey with AP her British citizen child, who was born in 2009. She had applied for entry clearance to join her husband and father of AP, P, whom she married in Turkey on 20 June 2007. P was naturalised in 2008 as a British citizen after being granted indefinite leave to remain in the United Kingdom as a refugee from Iran in 2004. This appellant's application for entry clearance was refused by an Entry Clearance Officer on 13 February 2012 on the grounds that (i) her marriage was not subsisting, (ii) the parties to the marriage did not intend to live permanently together and also on (iii) maintenance and
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(iv) accommodation grounds. Her appeal was dismissed by First-tier Tribunal Judge R. G. Walters for reasons given in a determination promulgated on 15 November 2012. The judge accepted that the appellant's marriage was subsisting and the parties intended to live together, but concluded that she did not meet the accommodation and maintenance requirements of the Rules. The judge also concluded the Entry Clearance Officer's decision would not lead to a breach of the appellant's Article 8 ECHR rights.
4. Permission to appeal to the Upper Tribunal was granted by Upper Tribunal Judge Coker on 10 April 2013. The appeal first came before Upper Tribunal Judge O'Connor on 3 May 2013, who, by way of a decision dated 9 May 2013, set aside the First-tier Tribunal's determination, having concluded that an error on a point of law in relation to its consideration of Article 8 ECHR had been made. The reasons given for this conclusion are attached hereto as Appendix I.
5. The appellant in the second appeal is a national of Thailand where she was born in 1973. She married M (the sponsor) in Thailand on 24 April 2007. He is a British citizen by birth born in 1975. The couple have two British citizen children, JM born in 2004 and FM born in 2007. JM lives with the sponsor in the United Kingdom. FM remains with his mother in Thailand. The application by the appellant in the second appeal was refused on maintenance and accommodation grounds on 7 June 2012.
6. First-tier Tribunal Judge Grimshaw determined the appeal without a hearing (as requested by the appellant) which she dismissed under the Immigration Rules and on Article 8 grounds. The appeal came before Upper Tribunal Judge O'Connor on 3 June 2013, who, by way of a decision of the same date, set aside the First-tier Tribunal's determination, having concluded that an error on a point of law in relation to its consideration of Article 8 ECHR had been made. The reasons given by Judge O'Connor for this conclusion are attached hereto at Appendix II.
7. In both appeals, Upper Tribunal Judge O'Connor gave directions to the parties requiring skeleton arguments, in particular on the issue of whether it is unlawful and therefore unreasonable to expect a British citizen child (and therefore European citizen child) who has never lived within the European Union to remain outside of the Union. The submissions were also to address (i) the Secretary of State's concession in the decision of Izuazu and (ii) the decisions in Dereci & Others [2012] EUECJ C-256/11 and Zambrano.
8. Unfortunately neither Mr Chukwudolue nor Mr Deller complied with that direction within the time limited by Judge O'Connor, but both provided skeleton arguments on the day of the hearing before the Upper Tribunal. Mrs SM's appeal had been listed for 2 o'clock. The sponsor was, however, able to attend the hearing earlier and participated fully after Mr Chukwudolue had made his submissions.
9. We remind ourselves that as the decision under appeal is one refusing entry clearance, pursuant to s.85 and s.85A of the Nationality, Immigration and Asylum Act 2002 we are constrained to considering the circumstances as they appertained as of the date of the refusal of Entry Clearance i.e. 13 February 2012.
10. The following facts in the first appeal are not in dispute.
11. The appellant is an Iranian national and has been residing in Turkey since 2007. She was granted a residence permit by the Turkish authorities on 30 September 2008. She and P married in Ankara, Turkey on 20 June 2007. She initially made an application for entry clearance to join her husband in the United Kingdom in 2007, however the Embassy refused to accept such application, indicating that the appellant was required to lodge it with the embassy in her homeland.
12. The appellant works in Turkey as a translator, and has been awarded a Bachelors of Religious Studies from the Nations University, Louisiana, U.S.A. She can speak and write English fluently.
13. AP has lived with the appellant since birth, save for a short period spent in the United Kingdom with his father, a time we make further reference to below.
14. As we have noted already, P is from Iran. He entered the United Kingdom in January 2003, was granted Indefinite Leave to Remain, as a refugee, on 7 April 2004 and was naturalised as a British citizen on the 21 February 2008. His asylum claim was based on the fact that he had, on 4 occasions, been imprisoned and subjected to ill treatment in Iran; the first occasion, for 6 months, being brought about by his refusal during his military service to kill persons suspected of being in the drug industry, and the subsequent occasions, for 2 months, 1 1/2 years and 2 weeks, being as a consequence of his involvement in political protests.
15. He visits the appellant in Turkey on an annual basis, although he did so twice in 2011; his last visit prior to the decision under appeal being in December 2011. He and the appellant speak regularly, both on the telephone and Skype. He lives in a 1 bedroom flat, but Croydon Council have indicated to him that, upon the arrival of the appellant and his son, he would be provided with larger accommodation. He is not in employment, and receives Employment Support Allowance.
16. Dr Mohamed Abdelghani, a Consultant Psychiatrist with the South London and Maudsley NHS Foundation Trust, wrote on the 21 December 2011 in relation to P's mental health, confirming that he has been diagnosed with Post Traumatic Stress Disorder for which he takes Olanzapine and Mirtazapine on a daily basis. The letter further observes that he suffers from poor concentration and low energy levels, hears the voice of one of the prison guards from his time in detention in Iran, has flashbacks relating to his traumatic experiences in Iran on 2 to 3 occasions a day, and that he complains of vomiting when he eats. Investigations are underway regarding the latter complaint. When P found out that the appellant's application for entry clearance had been refused he self harmed by superficially cutting his arms.
17. This letter...
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