Upper Tribunal (Immigration and asylum chamber), 2021-08-03, EA/02814/2019
| Jurisdiction | UK Non-devolved |
| Date | 03 August 2021 |
| Published date | 18 August 2021 |
| Hearing Date | 16 July 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | EA/02814/2019 |
EA/02814/2019
Upper Tribunal
(Immigration and Asylum Chamber) Appeal number: EA/02814/2019 (V)
THE IMMIGRATION ACTS
|
Heard Remotely at Manchester CJC |
Decision & Reasons Promulgated |
|
On 16 July 2021 |
On 3 August 2021 |
Before
UPPER TRIBUNAL JUDGE PICKUP
Between
AK
(ANONYMITY ORDER MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
DECISION AND REASONS (V)
For the appellant: Mr M Ul-Haq, instructed by Dicksons Solicitors
For the Respondent: Mr A Tan, Senior Presenting Officer
This has been a remote hearing which has been consented to by the parties. The form of remote hearing was video by Skype (V). A face-to-face hearing was not held because it was not practicable, and all issues could be determined in a remote hearing. At the conclusion of the hearing, I reserved my decisions and reasons, which I now give. The order made is described at the end of these reasons.
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The appellant, who is a Pakistani national with date of birth given as 25.9.85, has appealed with permission to the Upper Tribunal against the decision of the First-tier Tribunal promulgated 20.9.19 (Judge Raikes), allowing her appeal against the decision of the respondent, dated 31.5.19. However, the appeal was allowed on the alternative basis of a derivative right to reside, the judge rejecting the claim to a right of permanent residence, pursuant to the Immigration (EEA) Regulations 2016, as amended (the Regulations). A derivative right of residence cannot be counted towards the period of time necessary to acquire a permanent right of residence.
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The grounds of application for permission to appeal argue that:
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The judge was wrong to conclude that the appellant’s continuity of residence was broken three months before the prerequisite five years as a result of the sponsor’s imprisonment for unlawful wounding and threats to kill, and his subsequent deportation. It is argued that imprisonment did not stop the clock for the purpose of continuous residence, but even if it did, it should have been disregarded because of the “important reason” for it pursuant to article 16(3) of the Citizen’s Directive 2004/38/EC (CD);
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The judge was wrong to conclude that the respondent’s decision/policy is not discriminatory under EU law on grounds of nationality/race and or immigration status;
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The judge was wrong to conclude that the application was one made under regulation 17 and that the respondent exercises a discretion such that the Tribunal’s jurisdiction is fettered on appeal;
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The judge was wrong not to consider the appellant’s protected rights with reference to the Charter, relying on the best interests of the child principle pursuant to article 24.
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Permission to appeal was granted by the First-tier Tribunal on 18.3.20, the judge granting permission considering that “Whilst the judge considered whether the appellant was the family member of a qualified person for the requisite period and whether she thereafter had a derivative right of residence (which is not residence in accordance with the EEA Regulations for the purpose of acquiring permanent residence), he or she does not appear to have considered whether the appellant was a family member with retained rights (in which capacity residence could contribute to the acquisition of permanent residence rights).”
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I have carefully considered the decision of the First-tier Tribunal in the light of the submissions and the grounds of application for permission to appeal to the Upper Tribunal.
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The relevant background is that of the appellant’s five children, four are Italian nationals like their father. The fifth child is a British national who, of course, needs no permission to reside in the UK. The children are now aged between 7 and 17 years of age. The Italian children are not appellants in their own right but dependants on the appellant’s application and subsequent appeal. The children are all enrolled at school in the UK. In December 2003, the appellant and the Italian children were all issued with EEA Residence Cards as, respectively, the spouse and children of their EEA national sponsoring husband/father. The appellant last entered the UK in July 2013 and for the purposes of permanent residence, the requisite five-year period expired in July 2018. It is not contested that the appellant and to some degree the children were all victims of serious and sustained domestic violence. Prior to the end of the five-year period, on 10.4.18, the sponsor was convicted of violent crimes and sentenced to a term of immediate imprisonment and on 20.9.18 he was deported to Italy.
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The retained right of residence referred to in the grant of permission can lead to a right of permanent residence under Regulations 15(1)(f)(ii), for a person who “was, at the end of the period, a family member who has retained the right of residence.” A family member who has retained the right of residence is defined in Regulation 10 and must meet one of the conditions there set out. Amongst those conditions, Regulation 10(4) provides for a person who is the parent with actual custody of a child who satisfies the condition in paragraph (3). This would require the child to be the direct descendant of a qualified person or an EEA national with a right of permanent residence who has either died or ceased to be a qualified person on ceasing to reside in the UK, where the child was attending an educational course in the UK immediately before the death or cessation of qualification, and continues to attend such a course. Contrary to the view of the judge granting permission, the appellant cannot avail herself of this provision, as Mr Ul-Haq conceded, as the sponsor did not acquire a permanent right of residence before he was imprisoned. If he does not have a permanent right of residene, the appellant cannot have a retained right of residence.
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In submissions, the grounds set out above were consolidated by Mr Ul-Haq into two essential grounds. In essence, the first is that the appellant’s argument is that the Regulations do not properly transpose the CD. The second is that the Regulations discriminate against the appellant in that the third-country member does not have the same safeguard against domestic violence as the partner of a British citizen under the domestic violence concession. Mr Tan’s submission is that it is beyond dispute that continuity of residence is broken by imprisonment and furthermore, detention during a sentence of imprisonment cannot come within the definition of legal residence in Article 16 for the purpose establishing a right to permanent residence for a EEA citizen or their third-country family member.
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For the reasons set out below, I entirely reject both arguments advanced at some length by Mr Ul-Haq. In summary, the arguments depend on an interpretation of the CD which, in my view cannot be sustained or justified.
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As established in MG (Portugal) EU:C 2014.9, and case 378/12 Onuekuiere ECU EC 2.2 01413, imprisonment breaks continuity of residence. Mr Ul-Haq’s argument to the contrary is unsustainable.
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Mr Ul-Haq accepted that he had to establish that the appellant had a right of residence, either dependent on the sponsor, or in her own right, over the 3 month gap between her partner’s imprisonment and the end of the five-year period of lawful residence necessary to establish a right of permanent residence.
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Mr Ul-Haq took me carefully through the relevant articles of the CD, evidently in the same way as the First-tier Tribunal Judge was taken through them. However, I do not accept that CD can be purposefully...
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