Upper Tribunal (Immigration and asylum chamber), 2019-02-04, EA/03715/2017
| Jurisdiction | UK Non-devolved |
| Date | 04 February 2019 |
| Published date | 26 February 2019 |
| Hearing Date | 27 November 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | EA/03715/2017 |
Appeal Number: EA/03715/2017
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/03715/2017
THE IMMIGRATION ACTS
|
Heard at Newport |
Decision & Reasons Promulgated |
|
On 27 November 2018 |
On 04 February 2019 |
|
|
|
Before
UPPER TRIBUNAL JUDGE GRUBB
Between
Tatsanee [M]
Appellant
and
IMMIGRATION OFFICER, COQUELLES
Respondent
Representation:
For the Appellant: Ms K McCarthy instructed by direct access
For the Respondent: Mr C Howells, Senior Home Office Presenting Officer
DECISION AND REASONS
Background
-
The appellant is a citizen of Thailand who was born on 8 August 1967.
-
The appellant met a British Citizen, Mr [IM] in February 2007 and they formed a relationship. In 2008, Mr [M] began work at the European Commission in Belgium and he and the appellant, thereafter, resided in Belgium – Mr [M] as an EEA national exercising treaty rights and the appellant on the basis that she was in a durable relationship with him. Both were issued residence cards by the Belgian authorities.
-
In 2012, Mr [M]’s employment in Belgium ended and he returned to the United Kingdom. The appellant came with him and was granted entry clearance as a visitor. Thereafter, Mr [M] lived and worked mainly in the UK and the appellant remained here with him.
-
Thereafter, in 2012 (or it may have been in 2014 it is not clear from the papers), Mr [M] returned to Belgium to work and was joined there by the appellant.
-
In 2015, Mr [M]’s work in Belgium ended and he returned to the UK in order to take care of his ill mother. The appellant returned with him.
-
On their return in March 2015, the appellant (whom the judge accepted raised Surinder Singh at the border) was, in fact admitted as a visitor. Again, it is not entirely clear what period of leave she was granted but it would appear to have been until 18 April 2017.
-
Whilst in the UK, the appellant applied for a residence card on the basis of her relationship with Mr [M] but that was refused on 17 December 2015. The basis of that application was as a returning “family member” of a British Citizen who had been exercising Treaty rights in another EEA state, namely relying upon the principle in Surinder Singh. The application was refused under reg 9 of the Immigration (EEA) Regs 2006 (SI 2006/1003 as amended) because the appellant had failed to provide Mr [M]’s passport and also because reg 9 (and the Surinder Singh principle) only applied to married partners. That conclusion had subsequently been shown to be erroneous, at least in part, by the CJEU’s decision in SSHD v Banger (Case C-89/17) [2018] Imm AR 1205 (12 July 2018).
-
On 29 March 2016, the appellant and Mr [M] married in the UK.
-
In April 2016, a further application was made by the appellant for a residence card now as the spouse of Mr [M]. That application was refused in December 2016, again because Mr [M]’s original passport was not submitted.
-
In March 2017, the appellant left the UK travelling to Europe and then subsequently back to Thailand. Mr [M] remained in the UK looking after his mother.
-
It would appear that thereafter, Mr [M] and the appellant decided that the appellant should again join Mr [M] in the UK. To that end, Mr [M] travelled to Amsterdam where he met the appellant and they both sought to enter the UK at Coquelles.
-
Although this was disputed, the judge accepted that the appellant again sought entry on the Surinder Singh principle and now reg 9 of the Immigration (EEA) Regulations 2016 (SI 2016/1052) (“the 2016 Regulations”).
-
In a decision dated 22 March 2017, the Immigration Officer refused the appellant admission under reg 11 (read with reg 9) of the 2016 Regulations. The basis of that decision was three-fold. First, the appellant and Mr [M] had not been residing in an EEA country (in particular Belgium in respect of which they both held residence cards) since March 2015. Secondly, Mr [M] was not a “qualified person” within reg 6 (or at least as deemed to apply to him as a British Citizen for the purpose of reg 9) in the UK. Although this was not made explicit, I did not understand it to be disputed before me, that is because Mr [M] no longer works in the UK but rather looks after his ill mother. Thirdly, the Immigration Officer concluded that Mr [M] had not been exercising treaty rights in another EEA country as he had been residing in the UK since March 2015.
-
For those reasons, the Immigration Officer concluded that the appellant did not have a right to be admitted to the UK as the spouse of a British Citizen applying the Surinder Singh principle and reg 9 of the 2016 Regulations.
-
The decision noted that the appellant had a right of appeal under reg 36 of the 2016 Regulations but one that could only be exercised from outside the United Kingdom.
The Appeal to the First-tier Tribunal
-
Before Judge Powell, the appellant conceded that she could not succeed under the 2016 Regulations. Not surprisingly, the judge dismissed the appeal under the 2016 Regulations. That appears to have been on the basis that the Surinder Singh principle (and reg 9 of the 2016 Regulations) only applied to British Citizens and their spouses who returned to the UK immediately after the former had been exercising Treaty rights in another EEA country. It was the respondent’s position, which Judge Powell accepted, that the 2016 Regulations did not apply to those who were unmarried and in a “durable relationship” immediately prior to returning to the UK after exercising Treaty rights in another EEA country. Here, the appellant and Mr [M] had returned to the UK in March 2015 immediately after Mr [M] had been exercising Treaty rights in Belgium. At that time, they were not married: they subsequently married in the UK on 29 March 2016. By the time of the decision in March 2017 when they entered the UK as a married couple, it could no longer be said that they did so immediately after Mr [M] had been exercising Treaty rights in Belgium.
-
Of course, the respondent’s position that the Surinder Singh principle did not applying to an unmarried partner, does not survive the CJEU’s decision in Banger unscathed. But Banger would only be relevant to a challenge to the earlier refusal of a residence card in December 2015 and, perhaps, to the basis of the appellant’s entry to the UK in March 2015 when she was admitted as a visitor. However, neither of those decisions was (or could be) challenged in the appeal heard by Judge Powell.
-
Instead, the focus of the appellant’s submission made by Ms McCarthy (who represented the appellant before Judge Powell as she did before me) was that the appellant was entitled to rely upon Art 8 of the ECHR in the appeal.
-
Judge Powell rejected that submission and concluded that the appellant could not reply upon Art 8 for two reasons. First, he applied the Court of Appeal’s decision in Amirteymour v SSHD [2017] EWCA Civ 353 that, in an appeal under the EEA Regulations (in that case reg 26 of the 2006 Regulations) an appellant could not rely upon Art 8 unless raised as a consequence of an s.120 notice or because a removal decision had been made against the appellant. Neither was the case in relation to this appellant and so Judge Powell concluded that the appellant could not rely upon Art 8. He rejected an argument, made by Ms McCarthy before him, that Amirteymour was distinguishable as the appellant had made a human rights claim. He rejected that premise. His reasons, dealing with the Upper Tribunal’s decision in Bahinga [2018] UKUT 90 (IAC) is at paras 35–40 as follows:
“35. Amirteymour decides that I cannot because the appeal in this case is specifically a right of appeal against an EEA decision (Regulation 26(1)). The regulation that gives the right of appeal does not create a general arena where arguments on immigration rules and human rights can be raised. The appellant did not make a distinct human rights application when she sought admission at Coquelles. The evidence is clear that she applied for admission on the basis of her assertion of the Surinder Singh principle.
36. The decision in Bahinga (r.22; human rights appeal: requirements) 2018 UKUT 90 does not assist the appellant is this case. As the headnote provides:
“An application for leave or entry clearance may constitute a human rights claim, even if the applicant does not, in terms, raise human rights. In cases not covered by the respondent’s guidance (whereby certain applications under the immigration rules will be treated as human rights claims), the application will constitute a human rights claim if, on the totality of the information supplied, the applicant is advancing a case which requires the caseworker to consider whether a discretionary decision under the rules needs to be taken by reference to ECHR issues (eg Article 8) or requires the caseworker to look beyond the rules and decide, if they are not satisfied, whether an Article 8 case is nevertheless being advanced.
The issue of whether a human rights claim has been refused must be judged by reference to the decision said to constitute the refusal. An entry clearance manager’s decision, in response to a notice of appeal, cannot, for...
To continue reading
Request your trial