Upper Tribunal (Immigration and asylum chamber), 2015-06-18, IA/17360/2014

Appeal Number: IA/17360/2014

IAC-PE-SW-V1

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: IA/17360/2014

THE IMMIGRATION ACTS

Heard at Field House	Decision & Reasons Promulgated
On 30th April 2015	On 18th June 2015

Before

DEPUTY UPPER TRIBUNAL JUDGE WOODCRAFT

Between

MR MUHAMMAD NAEEM

(ANONYMITY order not made)

Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr J. Plowright of Counsel

For the Respondent: Mr P. Nath, Home Office Presenting Officer

DECISION AND REASONS

The Appellant

1. The Appellant is a citizen of Pakistan born on 12^th December 1976. He successfully appealed to the First-tier Tribunal (Judge of the First-tier Tribunal Shamash) against a decision of the Respondent dated 9^th November 2013 to refuse to issue the Appellant with a residence card as confirmation of a right of residence as the family member of an EEA national. The Home Office appeal with leave against that decision and the matter therefore comes before me in the first place as an appeal by the Respondent. For the reasons I give below I have set that decision aside and remade the decision in this case. For the sake of convenience I will continue to refer to the parties as they were referred to at first instance.

2. On 27^th June 2013 the Appellant’s father-in-law, Mr Khalid Parvez (Mr Parvez), an Italian national born on 24^th December 1952, the Appellant himself, the Appellant’s wife, Bushra Khalid (Ms Khalid), born 14^th April 1985 and the couple’s son, M, born 13^th October 2009 applied for residence cards. This was on the basis that Mr Parvez was an EEA national exercising treaty rights and that the Appellant, Ms Khalid and M were dependents on Mr Parvez. The application was refused by the Respondent on the basis that Mr Parvez had not provided sufficient evidence that he was exercising treaty rights in the United Kingdom. That decision was not appealed.

3. On 11^th December 2013 Mr Parvez, the Appellant, the Appellant’s wife and M made further applications for residence cards on the same basis that is that Mr Parvez was an EEA national exercising treaty rights and the others were his dependents. Mr Parvez’s application and that of Ms Khalid and M were all granted and they were issued with residence cards expiring in 2019.

The Explanation for Refusal

4. The Appellant’s application was refused because the Respondent was not satisfied that the Appellant had shown he was living with or financially dependent upon his Mr Parvez. The Appellant had submitted an Islamic marriage certificate to show his marriage to the Ms Khalid but the Respondent did not accept that as a valid form of evidence. The relationship with Ms Khalid was not accepted and thus the Appellant could not show a relationship to Mr Parvez, her father. The Respondent considered the relationship between the Appellant and Ms Khalid as unmarried partners and thus as an extended family member under Regulation 8 of the of Immigration (European Economic Area) Regulations 2006. The Respondent did not accept that the Appellant and Bushra Khalid could show that they were in a durable relationship within Regulation 8(5) of the 2006 Regulations.

5. The Respondent pointed to a number of what were termed significant discrepancies:

(i) The Appellant had submitted a handful of British Gas bills dated between April and October 2013 that named the Appellant as one of the recipients. These did not confirm any kind of relationship and at most indicated he was a housemate.

(ii) Although M was said to have been born in 2009 M’s birth certificate was dated 13^th March 2013 which indicated a possibility that the certificate may have been reprinted and issued with additional information.

(iii) The Appellant had made a previous asylum application in July 2010 but on that occasion he had failed to mention having any dependants here in the United Kingdom nor had he made any reference to a family life.

6. The Respondent required the Appellant to make a separate charged application under Article 8 using the appropriate specified application form. Since the Appellant had not made a valid application for Article 8, consideration had not been given as to whether the Appellant’s removal from the United Kingdom would breach Article 8. The decision not to issue a residence card did not require the Appellant to leave the United Kingdom if he could otherwise demonstrate he had a right to reside under the Regulations. As it appeared the Appellant had no alternative basis of stay in the United Kingdom he should now make arrangements to leave. If he failed to do so voluntarily his departure “may be enforced”. In that event the Respondent would first contact the Appellant again and he would have a separate opportunity to make representations against the proposed removal. Subsequently the Appellant married Ms Khalid according to United Kingdom law.

The Hearing at First Instance

7. It was conceded at the outset of the hearing that the Appellant could not establish prior dependence on Mr Parvez as an extended family member because the Appellant arrived in the United Kingdom before Mr Parvez and was not dependent on him before his arrival in the United Kingdom. Whilst he was currently dependent on Mr Parvez the Appellant nevertheless fell outside the 2006 Regulations. The issue in the case was whether or not the Appellant should be granted discretionary leave to remain outside the Immigration Rules based on his relationship with his wife, son and his father-in-law.

8. In his determination the Judge noted that although the Respondent had not considered Article 8 the case was put to the Judge as an Article 8 claim. At paragraph 14 of the determination the Judge wrote that he had to decide:

“Whether taking this case as a whole the Respondent ought to have taken a pragmatic view and considered this application under Article 8 of the ECHR. I was initially minded to make the decision but having looked at the refusal letter again I find that there a number of factors that the Respondent has failed to take into account which ought properly to be taken into account in reaching a decision under Article 8. In particular I note that the Respondent has queried whether or not the Appellant and Ms Khalid are in a durable relationship. I am satisfied that they are married, that their marriage was a civil marriage in the United Kingdom. I am also satisfied from the birth certificate, from the photographs and from the oral evidence that the Appellant and Ms Khalid have a son together [M]. The Appellant made his application with other family members.”

9. The difficulty for the Appellant under the 2006 Regulations was that he was in effect a dependent on his wife who in turn was a dependent of the EEA national. Case law established that sub‑dependency was not permitted. There were no removal directions but the Appellant had raised Article 8. He was living in the United Kingdom illegally and had lived here illegally for many years. The Appellant’s wife, Ms Khalid was not prepared to return to Pakistan as she had not lived there since she was 15. The Appellant could not go to Italy without his wife and they had a child in full-time education. The Judge found that the failure of the Respondent to consider Article 8 meant that the decision was unlawful and remained outstanding before the Respondent to take. The appeal was allowed to that extent.

The Onward Appeal

10. The Respondent appealed against that decision arguing that there was no requirement for the Respondent in deciding an EEA application to consider Article 8. The Appellant had not submitted a valid application for Article 8 on the appropriate application form. Whilst that might be seen as a bureaucratic approach it was a lawful one. In the case of Weiss [2010] EWCA Civ 803 the Court of Appeal had said that it was a bureaucratic approach but it was impossible to say that it was an unlawful approach.

11. The duty under Section 55 of the Borders and Citizenship Act only arose when the Respondent knew that the decision to be taken would affect a child in the United Kingdom. Given that the Respondent had disputed the relationship between the Appellant and Ms Khalid the Section 55 duty was not triggered at the time of decision. If the submissions made to the Respondent were not of a nature to establish that Section 55 was engaged there was no requirement to consider it.

12. The application for permission to appeal came on the papers before Designated Judge Coates on 16^th February 2015. In granting permission to appeal he was satisfied that the grounds were arguable. The Judge had referred to Section 55 of the UK Borders Act although that was the incorrect statute.

The Hearing Before Me

13. The Presenting Officer indicated that he and Counsel for the Appellant had had a useful discussion before the hearing to narrow the issues. The Appellant had been unable to satisfy Appendix...