Rexhaj (Dependent Parents: Assumed Dependency)
Jurisdiction | UK Non-devolved |
Judge | Stephen Smith UTJ,Skinner DUTJ |
Judgment Date | 24 April 2023 |
Neutral Citation | [2023] UKUT 161 (IAC) |
Court | Upper Tribunal (Immigration and Asylum Chamber) |
Stephen Smith UTJ and Skinner DUTJ
UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
European Union law — family members — dependent parents — assumed dependency — leave to enter under Appendix EU to the Immigration Rules
The Claimant was a citizen of Albania bom in 1964. In June 2021 she successfully applied for an EU Family Permit under Appendix EU (Family Permit) (‘Appendix EUFP’) of the Immigration Rules HC 395 (as amended) as the ‘dependent parent’ of her Albanian son and his Romanian wife (‘the sponsors’). The sponsors each held indefinite leave to remain under the EU Settlement Scheme (‘the EUSS’). The Claimant was granted entry clearance valid for six months from November 2021 and was admitted to the United Kingdom in December 2021. She was not required to demonstrate dependency when making that application. Her claimed dependency was assumed as her application was submitted before 30 June 2021.
In January 2022 the Claimant applied from within the United Kingdom for leave to remain as a dependent parent of the sponsors under Appendix EU of the Immigration Rules. Paragraph (c)(i) of the definition for ‘dependent parent’ in Annex 1 to Appendix EU provided, where relevant, that an applicant did not have to meet a requirement as to dependency where ‘the applicant was previously granted limited leave to enter or remain under this Appendix as a dependent parent, and that leave has not lapsed or been cancelled, curtailed or invalidated …’. In April 2022 the Secretary of State for the Home Department refused the Claimant's application on the basis that she had failed to demonstrate dependency. The First-tier Tribunal (‘FtT’) dismissed the Claimant's appeal against that decision on the ground that, at the date of the application to the Secretary of State, she was not dependent upon the sponsors. The Judge found that, as the Claimant had previously been granted leave under Appendix EUFP, her claimed dependency could not be assumed.
On appeal, the Claimant submitted that the FtT Judge had erred in finding that she had to demonstrate dependency. She also argued that the Judge's findings of fact were procedurally unfair. The Claimant emphasised that the hearing had proceeded by way of submissions alone without the express prior agreement of the parties, despite the sponsors having attended remotely and being in a position to give evidence. Further, the Judge had not indicated his concerns about the credibility of any of the evidence before finding that the witnesses had not been truthful.
Held, substituting a fresh decision allowing the Claimant's appeal:
(1) The essential question concerned the operative basis upon which the Claimant was admitted at the border. If, as the FtT Judge found, her prior entry clearance under Appendix EUFP converted into leave to enter under Appendix EUFP, then the Judge was plainly right to conclude that she had not been granted leave to enter under Appendix EU and was subject to the requirement to demonstrate dependency. By contrast, if the operative basis for her grant of leave to enter was Appendix EU, it followed that she had previously been granted leave to enter ‘under this Appendix’, namely Appendix EU, and dependency fell to be assumed under paragraph (c) of the definition of ‘dependent parent’ (para 14).
(2) The Immigration Rules should not be construed with the strictness applicable to the construction of legislation. Rather, they must sensibly be interpreted according to the natural and ordinary meaning of the words used, recognising that they were statements of the Secretary of State's administrative policy: Mahad v Entry Clearance Officer[2009] UKSC 16 applied. Accordingly, the two appendices should be read together, with consideration given to the stated purpose and role of each. The chronology of decisions under the two appendices was as follows: first, an applicant applied for an entry clearance as a dependent parent under Appendix EUFP; and secondly, in the event of the application succeeding and an applicant being granted entry clearance under Appendix EUFP, once an applicant presented at the border, if admitted, the applicant would be granted leave to enter. The question then arose as to whether such leave to enter would have been granted under Appendix EUFP, upon the conversion of her entry clearance to leave to enter, or whether the operative part of the Immigration Rules under which leave to enter was granted was, in fact, Appendix EU (para 15).
(3) The operative part of the rules under which leave to enter was granted to the holder of an EUSS Family Permit granted under Appendix EUFP was Appendix EU. The focus of Appendix EUFP was the granting of entry clearance. By contrast, Appendix EU made detailed provision for leave to enter and remain to be granted to its beneficiaries. To that end, paragraph EU14A expressly addressed leave to enter for dependent parents. Appendix EUFP, by contrast, made no provision for the granting of leave to enter, and expressly stated that its purpose was to operate in tandem with Appendix EU. The FtT Judge's conclusion that the Claimant's leave to enter was granted under Appendix EUFP, rather than Appendix EU, required reading into Appendix EUFP wording that was not there and ignoring the express provision contained in Appendix EU concerning grants of leave to enter. The Immigration (Leave to Enter and Remain) Order 2000 did not specify the provisions of the Immigration Rules under which entry clearance should have effect as leave to enter or otherwise descend into that level of detail. For such details, it was necessary to look to the terms of the rules themselves. The preferred construction avoided rendering paragraph (c) in the definition of ‘dependent parent’ otiose. There was also a coherence between the assumed dependency from which an applicant in the Claimant's position would benefit and the assumed dependence from which she had already benefited, having applied for the family permit by 30 June 2021 (paras 16 – 19).
(4) Where an individual had been granted entry clearance as a dependent parent and subsequently granted limited leave to enter at the...
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The Secretary of State for the Home Department v Have Rexhaj
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