Upper Tribunal (Immigration and asylum chamber), 2019-10-15, [2019] UKUT 356 (IAC) (MS (British citizenship; EEA appeals))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice Lane, President, Upper Tribunal Judge Gill, Upper Tribunal Judge Finch |
| Status | Reported |
| Date | 15 October 2019 |
| Published date | 15 November 2019 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | British citizenship; EEA appeals |
| Hearing Date | 26 July 2019 |
| Appeal Number | [2019] UKUT 356 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
MS (British citizenship; EEA appeals) Belgium [2019] UKUT 00356 (IAC)
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 26 July 2019 |
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Further submissions: 31 July and 5 August 2019 |
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Before
THE HON. MR JUSTICE LANE, PRESIDENT
UPPER TRIBUNAL JUDGE GILL
UPPER TRIBUNAL JUDGE FINCH
Between
MS
(ANONYMITY DIRECTION made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr B. Amunwa, Counsel instructed by Duncan Lewis & Co Solicitors (Harrow Office)
For the Respondent: Mr I. Jarvis, Senior Home Office Presenting Officer
(1) If, on appeal, an issue arises as to whether the removal of a person (P) from the United Kingdom would be unlawful because P is a British citizen, the tribunal deciding the appeal must make a finding on P’s citizenship; just as the tribunal must do so where the consideration of the public interest question in Part 5A of the Nationality, Immigration and Asylum Act 2002 involves finding whether another person falls within the definition of a “qualifying child” or “qualifying partner” by reason of being a British citizen.
(2) The fact that P might, in the past, have had a good case to be registered as a British citizen has no material bearing on the striking of the proportionality balance under Article 8(2) of the ECHR. The key factor is not whether P had a good chance of becoming a British citizen, on application, at some previous time but is, rather, the nature and extent of P’s life in the United Kingdom.
(3) If P is prevented by regulation 37 of the Immigration (European Economic Area) Regulations 2016 from initiating an appeal under those Regulations whilst P is in the United Kingdom, it would defeat the legislative purpose in enacting regulation 37 if P were able, through the medium of a human rights appeal brought within the United Kingdom, to advance the very challenge to the decision taken under the Regulations, which Parliament has ordained can be initiated only from abroad.
(4) In considering the public interest question in Part 5A of the 2002 Act, if P is an EEA national (or family member of an EEA national) who has no basis under the 2016 Regulations or EU law for being in the United Kingdom, P requires leave to enter or remain under the Immigration Act 1971. If P does not have such leave, P will be in the United Kingdom unlawfully for the purpose of section 117B(4) of the 2002 Act during the period in question and, likewise, will not be lawfully resident during that period for the purpose of section 117C(4)(a).
(5) The modest degree of flexibility contained in section 117A(2) of the 2002 Act, recognised by the Supreme Court in Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58, means that, depending on the facts, P may nevertheless fall to be treated as lawfully in the United Kingdom for the purpose of those provisions, during the time that P was an EU child in the United Kingdom; as in the present case, where P was under the control of his parents; was able to attend school and college without questions being asked as to P’s status; and where no action was taken or even contemplated by the respondent in respect of P or his EU mother.
DECISION AND REASONS
A. PRELIMINARY
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T his is the re-making of the appellant’s appeal against the refusal of his human rights claim by the respondent.
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Amongst the issues that fall to be considered in deciding this human rights appeal, which turns upon Article 8 of the ECHR, are the significance of a person having had, in the past, an entitlement, on application, to be registered as a British citizen or (as in the present case) an entitlement to apply to be so registered, at the respondent’s discretion; and the significance of a person being a citizen of the European Union (other than as a British citizen), particularly with regard to the operation of Part 5A of the Nationality, Immigration and Asylum Act 2002.
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On 26 July 2019, we heard oral evidence from the appellant and his mother. Closing submissions were subsequently made in writing by Mr Jarvis and Mr Amunwa. We also had their written skeleton arguments and Mr Amunwa’s Note of 26 July 2019. We commend the quality of their respective submissions.
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In addition to the criminal offending described in our earlier decision, on 9 January 2019, the appellant was convicted of assault against his former partner, whom we shall call X, who was the same complainant as in the March 2017 offences committed by the appellant. In respect of the latest offence, the appellant received custodial sentences of nineteen weeks, with a post-sentence supervision order. He is also subject to a restraining order, which runs until 2021.
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At the hearing on 26 July, Mr Jarvis sought to introduce a witness statement of Tracy Dang, a police staff investigator at Southampton Central Police Station. This statement, dated 19 July 2019, referred to Ms Dang having recently been informed by X that the appellant had broken the terms of his restraining order by sending her letters on 9 April and 7 May 2019, as well as “numerous letters and phone calls … being sent from Winchester Prison … to my home address and my place of work”.
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After taking instructions, Mr Amunwa informed the Tribunal that the appellant was able to address and rebut what was said in Ms Dang’s statement. In the circumstances, the Tribunal admitted the statement, pursuant to Rule 15(2A) of the Tribunal Procedures (Upper Tribunal) Procedure Rules 2008.
B. THE EVIDENCE
(a) The appellant
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The appellant adopted two written witness statements. In the first, which he signed on 5 October 2018, he described his background and the circumstances leading to, and following, the respondent’s decision to deport him from the United Kingdom.
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The appellant was born in Antwerp, Belgium in July 1998. He did not know his birth father. He was adopted by NS in 2003. He said he had lived in Belgium with his family for two years and nine months, before his parents, siblings and he moved to the United Kingdom. He has two sisters and three brothers. His two sisters, who featured prominently in the evidence, we shall describe as Y and Z respectively.
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The family moved to Grangemouth, Scotland and later to Hampshire. The appellant said he, his mother and his siblings are Belgian citizens, whilst his adoptive father is a British citizen. He said that his father’s parents and relatives lived in the United Kingdom and that was one of the reasons that they came to this country.
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In 2007, the appellant moved back to Belgium with his family but in February 2011, they moved again to the United Kingdom. It was there that the appellant finished his schooling, before later working for various employers.
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In 2016, the appellant began a relationship with X. At the time of the first statement, X was pregnant with the appellant’s child. Regrettably X miscarried, as she did on another occasion.
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The appellant’s statement continued by saying that “I am going to say something that I have not mentioned to the authorities before but I feel it is very important and could help in explaining why I have acted in the way I have. I come from an abusive family, what I mean by this is physical and sexual abuse”.
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The appellant described returning home at the age of 8 to find his adoptive father in a sexual position with Y. The appellant was aware that his mother knew of this “but nothing changed”.
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The appellant also described how he and his two brothers were physically beaten by their mother on “so many occasions … I can’t count”. The appellant said that this abuse “goes on now and I can see that all this background has a direct link with my offending”.
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The appellant in his statement admitted having fourteen criminal convictions in the UK which “mainly involved assaults, vandalisms and destruction of property”. These were committed in the years 2013 to 2015 when the appellant “was young and I had met some people I shouldn’t have”.
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The appellant’s conviction in 2017 occurred because he “leaked some photos of my ex-partner. I was going through a difficult period”. His ex-partner had, according to the appellant, put his life in danger by cutting his car’s brake cables and damaging its gearbox. Nevertheless, the appellant knew that he should not have done what he did and felt ashamed about it. He said: “I am a different person now”. The appellant also considered that he was in need of psychological help.
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The appellant said that he had suffered from depression for the past three years. This has started when he was still at school. He had contemplated seriously twice whilst in detention. He had been prescribed anti-depressants but these had not helped him.
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The statement recorded that the appellant had “been deported to Belgium three times so far”. His partner had assisted him financially to return to the United Kingdom. The appellant said that he did not know why the respondent wanted to deport him and that he was “a European citizen. I have lived my...
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