Upper Tribunal (Immigration and asylum chamber), 2024-03-12, UI-2023-005341
| Appeal Number | UI-2023-005341 |
| Hearing Date | 28 February 2024 |
| Date | 12 March 2024 |
| Published date | 27 March 2024 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2023-005341
First-tier Tribunal No: EA/10669/2022
|
IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2023-005341 First-tier Tribunal No: EA/10669/2022 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On the 12 March 2024
Before
DEPUTY UPPER TRIBUNAL JUDGE BEN KEITH
Between
FATEMEH ASGHARZADEH
(NO ANONYMITY ORDER MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Toal, Counsel
For the Respondent: Mr Tufan, Senior Home Office Presenting Officer
Heard at Field House on 28 February 2024
DECISION AND REASONS
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This is an appeal against the decision of First-tier Tribunal Judge Rothwell (“the Judge”) heard at Hatton Cross on 29 September 2023 and promulgated on 23 October 2023.
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The Appellant was born on 26 March 1945 and is a national of Iran. She appealed against the decision of the Secretary of State made on 8 October 2022 under the European Union Settlement Scheme (EUSS) as “a person with a Zambrano right to reside” as the primary carer of a British citizen, namely her adult son Abbas Karimi born 17 November 1976 (the sponsor).
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The factual history is set out in detail by the Judge but in brief the Appellant has been visiting the United Kingdom on and off since 2005 in which I understand she arrived and stayed on a six monthly basis then leaving to return to Iran. However, in 2013 she came to the United Kingdom and has been residing here ever since without leave to remain. She has in that time stated that she has been caring for her son as he suffers from a number of chronic health conditions including being an ex-drug user, hepatitis, depression, post-traumatic stress disorder, paranoia, anxiety, obesity, high blood pressure, neuropathic pain, osteoporosis, chronic leg ulcers, MRSA and anaemia. Those are the health conditions that were before the First-tier Tribunal Judge.
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Mr Toal advances four grounds of appeal.
Ground 1
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Mr Toal has amended his Ground 1 slightly because he understandably misplaced the correct set of the Immigration Rules which he has helpfully provided to me today. Mr Toal’s central submission is that the First-tier Tribunal Judge assessed whether or not the Appellant was a Zambrano carer and had a Zambrano right to reside using the wrong date. The date of the application for leave to remain was made on 14 June 2021 see page 489 of the bundle. However, the judge at paragraph 34 said the following:
“… I accept that the appellant provides care to the sponsor, and at one stage she was his primary carer, and because of her failing health in light of the assessment of the evidence above, I did not accept that she is now his primary carer within the terms of Regulation 16(5)(c) and the Zambrano principles”.
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Mr Toal’s simple point, examining the Immigration Rules relevant at the time, is that the assessment of whether or not the appellant had a Zambrano right to reside and was caring for her son as his primary carer had to be made at the time of the application rather than at the time of the hearing. It seems to me that that submission is correct. The judge has made an assessment of whether or not the Appellant is her son’s primary carer as at the date of the hearing taking into account the factual scenario at the time. That is not to say that that evidence is not relevant in a decision making but having made a decision based on the three years after the application in my judgment is an error of law. It is material because it is one of the questions that must be answered under the Immigration (European Economic Area) Regulations 2016/1052 Regs 16 Derivative Right to Reside Rule 16(5). The first question is, is sub-Section (a) “the person is the primary carer of a British citizen” (b) second question is “the British citizen is residing in the United Kingdom” and (c) “the British citizen would be unable to reside in the United Kingdom or in another EEA state if the person left the United Kingdom for an indefinite period”. Therefore in order to answer the question of whether or not the Appellant was the primary carer at the relevant date was the date of application.
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That reasoning also infects the key question in the case which is 16(5)(c) which I will turn to in more detail in the following grounds because 16(5)(c) requires an assessment of whether or not the sponsor is able to reside in the United Kingdom or another EEA state if the person left the United Kingdom for an indefinite period and that assessment must be coloured in my judgment by whether or not the appellant was the sponsor’s primary carer at the date of application. I therefore find a material error of law under Ground 1.
Ground 2
Ground 2 is that the First-tier Tribunal did not give adequate reasons for concluding the appellant was no longer her son’s primary carer. Mr Toal has referred to a number of functions that the appellant performs for her son including personal care, cleaning, shopping, calling emergency services, the fact that her and her son who live alone together, amongst many other factors. The judge concludes that the appellant...
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