Upper Tribunal (Immigration and asylum chamber), 2020-01-20, DA/00534/2018
| Jurisdiction | UK Non-devolved |
| Date | 20 January 2020 |
| Published date | 09 March 2020 |
| Hearing Date | 09 January 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | DA/00534/2018 |
Appeal Number: DA/00534/2018
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00534/2018
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 9 January 2020 |
On 20 January 2020 |
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Before
UPPER TRIBUNAL JUDGE SMITH
Between
A K W
[Anonymity Direction Made]
Appellant
And
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
An anonymity direction was made by the First-tier Tribunal Judge. The appeal involves a minor child. Accordingly, it is appropriate to continue the anonymity direction. Unless and until a tribunal or court directs otherwise, the Respondent is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the Appellant and to the Respondent.
Representation:
For the Appellant: Ms M Dogra, Counsel instructed on a direct access basis
For the Respondent: Mr I Jarvis, Senior Home Office Presenting Officer
DECISION AND REASONS
BACKGROUND
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By an error of law decision promulgated on 1 November 2019, I found an error of law in the decision of First-tier Tribunal Judge G Clarke, itself promulgated on 31 May 2019. I therefore set aside the First-tier Tribunal’s decision. My error of law decision is appended to this decision for ease of reference.
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Some of the background history is set out at [2] and [3] of the Decision and I do not repeat those matters. I do though need to add to that for completeness. Following the Respondent’s decision under appeal dated 5 January 2018, made whilst the Appellant was in the UK unlawfully in breach of the earlier deportation order, the Appellant was removed back to Poland on 5 April 2018 where he currently resides. I am told that he has made an application under the EEA Regulations from Poland to revoke his deportation order which is pending decision. Although Mr Jarvis was unable to confirm that this was the position, Ms Dogra said that this was made in early 2019. Nothing turns on that for reasons I will come to.
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The Appellant returned to the UK at some point in 2019, again in breach of the extant deportation order. I was informed by Mr Jarvis that the Appellant was encountered in the UK by Border Force officials. He told them that he had entered the UK via Belfast but did not say when he had done so. On 25 October 2019, the Appellant was given a conditional discharge for assaulting a police constable. He made a voluntary departure back to Poland on 14 November 2019. Although Ms Dogra was unaware of this development, it was possible to deal with this development via evidence from the Appellant’s partner, [SR]. I indicated that, if needs be, the Appellant could provide a written statement if this were disputed but, at the end of the hearing, it was agreed that this was not necessary.
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The Appellant’s mother-in-law [MA] made an application prior to the hearing to adjourn to a later date. She said that she had misread the directions previously given and had therefore not prepared for the hearing by obtaining updated medical evidence. The Appellant and his family members have been unable to pay a solicitor to prepare the case and instruct Counsel on a direct access basis. The application for an adjournment was refused on 8 January 2020 by an Upper Tribunal Lawyer on the basis that the medical evidence already before me may suffice and that this was a matter which it would be best for me to consider.
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Although Ms Dogra intimated the need for an adjournment at the start of the hearing, it was agreed in discussions that this was not necessary. Mr Jarvis indicated that, although the Respondent did not concede that it would be unduly harsh for the Appellant’s partner and children to go to Poland to live, he intended to present the case on the basis that they could not do so but that it was not unduly harsh for them to remain in the UK whilst the Appellant remains in Poland. I also indicated that I was prepared to deal with the updated position in relation to the Appellant’s partner and children based on [SR]’s oral evidence and did not immediately see the need for medical evidence of changed circumstances. I was told that the Appellant’s eldest child, [LR], has now been formally diagnosed with dyslexia. Mr Jarvis pointed out that there is some evidence already before the Tribunal that this might be the case and, so long as it was not being asserted that this was coupled with mental health issues or had any such impact on [LR], he also considered that any changed circumstances could be dealt with by way of oral evidence from [SR].
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A further issue arose as to [SR]’s vulnerability based on her mental health issues. This was a particular concern as her mother (the Appellant’s mother-in-law, [MA]) could not attend the hearing with her. Ms Dogra indicated that, at the hearing before the First-tier Tribunal, [MA] had been outside the hearing room when [SR] gave evidence (although present at the hearing). She indicated that the only concern was as to the manner of questioning and that this should be done in a sensitive manner. If she had any concerns as to the nature of the questioning, Ms Dogra agreed that she would raise those with me. [SR] was told at the start of her evidence that, if she needed any breaks, she should feel free to ask. She did not do so, no concerns were raised and she gave her evidence without any incident.
THE LEGAL FRAMEWORK AND THE ISSUES
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Before I set out the relevant evidence, it is appropriate to outline the legal context which applies. As I have indicated, the Respondent’s decision under appeal is that dated 5 January 2018. Although the Respondent makes reference to the EEA Regulations (“the Regulations”), there is no appeal under those Regulations as the Appellant was not entitled to apply to revoke the deportation order under the Regulations until after he had left the UK, whereas the submissions made which led to the decision under appeal were made on 12 December 2017 whilst the Appellant was in the UK, in breach of the deportation order. There is no dispute that the only ground before me is that the Respondent’s decision breaches the Appellant’s human rights and those of his family under Article 8 ECHR.
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For completeness, Mr Jarvis drew my attention to two relevant decisions on this issue: Smith (appealable decisions; PTA requirements; anonymity) [2019] UKUT 00216 (IAC) (“Smith”) and MS (British citizenship; EEA appeals) Belgium [2019] UKUT 00356 (IAC) (“MS”). Smith concerned the issue whether the First-tier Tribunal had jurisdiction to decide an appeal under the Regulations, having particular regard to regulations 34 and 37 (see [26] of that decision). That was of some relevance to the issues. Consistently with my error of law decision, the Tribunal in that case concluded that the only appeal was one on Article 8 grounds (see [33] to [42] of that decision).
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The point is also developed in the Tribunal’s guidance in MS in the following terms:
“.. (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).”
Paragraphs [114] to [135] of the decision are worthy of note.
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As Mr Jarvis submitted, based on those decisions, and I accept, the Appellant’s Article 8 claim falls to be considered applying Sections 117A to 117D Nationality, Immigration and Asylum Act 2002 (“Section 117”) notwithstanding that the Appellant is Polish and therefore an EEA national. Via the medium of Section 117C and Section 117D, paragraphs A398 to 399A of the Immigration Rules (“the Rules”) are relevant. Mr Jarvis accepted, however, that, although Section 117C might be interpreted as slightly more generous than the Rules, it was nonetheless appropriate to apply Section 117C. As the Appellant is an EEA national,...
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