Mrs A K v The Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | Gill |
| Judgment Date | 16 January 2019 |
| Neutral Citation | [2019] UKUT 67 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 16 January 2019 |
[2019] UKUT 67 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
UPPER TRIBUNAL JUDGE Gill
For the Appellants: Mr S Canter, of Counsel, instructed by Simona Rodkin Solicitors LLP
For the Respondent: Mr D Clarke, Senior Home Office Presenting Officer
AK and IK (S.85 NIAA 2002 — new matters) Turkey
If an appellant relies upon criteria that relate to a different category of the Immigration Rules to make good his Article 8 claim from that relied upon in his application for LTR on human rights grounds or in his s.120 statement such that a new judgment falls to be made as to whether or not he satisfies the Immigration Rules, this constitutes a “new matter” within the meaning of s.85(6) of the Nationality, Immigration and Asylum Act 2002 which requires the Secretary of State's consent even if the facts specific to his own case (for example, as to accommodation, maintenance etc) remain the same.
The appellants are nationals of Turkey, born (respectively) on 27 May 1975 and 29 August 2007. They appeal against a decision of Judge of the First-tier Tribunal Kelley who, in a determination promulgated 26 October 2018 following a hearing on 8 October 2018, dismissed their appeals against a decision of the respondent of 6 April 2016, to refuse their applications of 8 December 2015 for leave to remain (“LTR”) in the United Kingdom as the spouse and child (respectively) of Mr A K (hereafter the “sponsor”). The sponsor is a Turkish national with indefinite leave to remain (“ILTR”) granted under the Immigration Rules that were in force (the “standstill provisions”) as at the date of the European Communities Turkish Association Agreement (the “Ankara Agreement”). He was granted ILTR as a sell-employed business person. The second appellant is the son of the first appellant and the sponsor.
The appellants appealed on the only statutory ground available to them, namely that the decision was unlawful under section 6 of the Human Rights Act 1998.
The judge found that the appellants enjoyed family life with the sponsor. He found that, as the first appellant was in the United Kingdom without LTR, she had to satisfy the requirements of EX.1(b) of Appendix FM, i.e. that there were insurmountable obstacles to family life continuing in Turkey. He was not satisfied that there were such insurmountable obstacles. He found that the second appellant was not a “ qualifying child” for the purposes of EX.1 (a), having only lived in the United Kingdom for 4 years. The appellants have not challenged these findings.
The judge then considered the Article 8 claim outside the Immigration Rules. He was not satisfied that there were any compelling or exceptional circumstances that warranted a grant of discretionary LTR under Article 8 outside the Immigration Rules.
The grounds only challenge the judge's finding that the decision was not disproportionate in his assessment of Article 8 outside the Immigration Rules. They may be summarised as follows:
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(i) (Ground 1) The judge erred in law by failing to consider whether the appellants meet the requirements of Appendix ECAA of the Immigration Rules. It is contended that the appellants meet the requirements of Appendix ECAA and that this was therefore a relevant factor in the assessment of proportionality outside the Immigration Rules.
Ground 1 entails consideration of whether any reliance by the appellants on their satisfying the requirements of Part 7 of Appendix ECAA constituted a “ new matter” within the meaning of S.85(6) of the Nationality, Immigration and Asylum Act 2002 (the “2002 Act”). If it does, then the judge was precluded from considering whether the appellants met the requirements of Appendix ECAA unless the respondent had consented, pursuant to s.85(5) of the 2002 Act. There was no Presenting Officer representing the respondent at the hearing before the judge.
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(ii) (Ground 2) The judge erred in law by failing to consider the principle in Chikwamba v SSHD [2007] UKHL 40. It is contended, inter alia, that his explanation at para 22 of his decision for not doing so made no sense. In addition, he erred in taking into account the precarious immigration status of the appellants in assessing proportionality.
The sponsor arrived in the United Kingdom on a visit visa in August 2010. He then applied for and was granted further LTR as a business person under the standstill provisions.
The appellants entered the United Kingdom on 12 August 2014 with entry clearance visas to join the sponsor as his dependent wife and son. All three then applied for ILTR. The sponsor's application was granted on 29 April 2015 but the appellants' applications were refused in a decision letter dated 29 April 2015 because they did not meet the 2-year residence requirement under Home Office guidance issued in 2011 for dependants of business persons granted leave under the standstill provisions. On 15 May 2015, the appellants again applied for LTR as the dependants of a Turkish national business person. This application was refused on 11 November 2015.
The appellants then made their applications of 8 December 2015 for LTR that were the subject of the appeal before the judge. It is plain that these applications were applications for LTR on the basis of their rights under Article 8 of the ECHR. The application form (hereafter the “Application”), signed and dated 8 December 2015, was accompanied by a letter dated 8 December 2015 from Stoke White (pages 55–60 of the appellant's bundle), who were then acting for the appellants (hereafter the “ Letter of application”). The opening paragraph of this letter reads:
“Our clients make this application for leave to remain in the UK on basis of the family and private life in the UK, namely on basis of their relationship and life in the UK with their husband, respectively, [Mr A K] who has settled status.”
The remainder of the Letter of Application explains why it was considered that the appellants' applications for LTR on their basis of their rights under Article 8 should be granted. There is no mention that they satisfy any of the requirements under the standstill provisions or the then applicable Home Office guidance relating to the requirements for LTR as dependants of Turkish nationals who have been granted leave as business persons under the standstill provisions.
On 6 July 2018, i.e. in the period between the date of the decision and the date of the hearing before the judge, Appendix ECAA of the Immigration Rules came into force. This sets out the requirements to be met for the grant of ILTR to Turkish nationals who have been granted LTR under the “ECAA worker” or the “ECCA business” category (as defined in Appendix ECAA) and their partners and children. Needless to say, as Appendix ECAA was not in force then, it was not mentioned in the Application or the Letter of Application nor was it considered by the respondent.
It is not necessary to summarise the judge's reasons for concluding that the appellants did not satisfy the requirements for LTR under the Immigration Rules because his findings in this regard have not been challenged.
Nor is it necessary to summarise the judge's reasons for concluding, following his assessment of the Article 8 claims outside the Immigration Rules, that the decision was not disproportionate. If I decide that the judge did err in his assessment of proportionality as contended in ground 1 and/or ground 2, it would follow that his assessment of proportionality would be set aside. It would then be necessary to re-assess proportionality. Neither Mr Canter nor Mr Clarke sought to suggest otherwise.
Paras 22–24 of the judge's decision are relevant to the grounds of appeal. They read:
“22. I do not consider that the principles in Chikwamba (FC) (Appellant) v Secretary of State for the Home Department [2008] UKHL 40 have any relevance to this appeal. This is because neither the Immigration Rules nor any other expression of the Secretary of State's policy require the appellants to seek entry clearance from abroad. On the contrary, the appellants were entitled to (and did) make their applications for further leave to remain whilst they were still in the United Kingdom. So far as I am aware, the Secretary of State has never suggested, otherwise.
23. Before embarking upon my Article 8 analysis of the facts, it is first necessary to deal with Ms Anzami's challenge to the legality of the respondent's reasons for refusing the appellant's [sic] applications under Appendix FM of the Immigration Rules. There are two linked aspects to this challenge. Firstly, it is said that the appellants ought not to have been treated as ‘overstayers’ given that they would not be treated as such in an application made under paragraph 7.1 of Appendix ECAA of the Immigration Rules. Secondly, it is said that given that the second appellant is the child of a person who was granted indefinite leave to remain under Appendix ECAA of the Rules, it was unlawful for the respondent to insist upon him meeting the requirement for that leave to be granted under Appendix...
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