Upper Tribunal (Immigration and asylum chamber), 2021-06-03, [2021] UKUT 235 (IAC) (Velaj (EEA Regulations – interpretation, Reg 16(5), Zambrano))
| Jurisdiction | UK Non-devolved |
| Judge | UPPER TRIBUNAL JUDGE RINTOUL, UPPER TRIBUNAL JUDGE BLUNDELL |
| Status | Reported |
| Date | 03 June 2021 |
| Published date | 16 September 2021 |
| Hearing Date | 05 May 2021 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | EEA Regulations – interpretation, Reg 16(5), Zambrano |
| Appeal Number | [2021] UKUT 235 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
Velaj (EEA Regulations – interpretation; Reg 16(5); Zambrano) [2021] UKUT 00235 (IAC)
THE IMMIGRATION ACTS
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Heard by Skype at Field House |
Decision & Reasons Promulgated |
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On 18 December 2020 |
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And in person on 5 May 2021 |
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Before
UPPER TRIBUNAL JUDGE RINTOUL
UPPER TRIBUNAL JUDGE BLUNDELL
Between
MR ALBAN VELAJ
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
THE Secretary of State FOR THE Home Department
Respondent
Representation:
For the Appellant: Mr C Thomann, instructed by the Government Legal Department
For the Respondent: Mr Georget, instructed by Malik & Malik Solicitors
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In considering a piece of legislation designed to implement European law, a purposive construction should be adopted as set out in Marleasing S.A v LA Commercial Internacional de Alimentacion S.A. [1992] 1 CMLR 305 and applying the principles set out in British Gas Trading Ltd v Lock and Anor [2016] EWCA Civ 983 at [38].
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Where implementing legislation goes beyond what is required by a Directive or to ensure compliance with rulings of the Court of Justice, there is no imperative to achieve a “conforming” interpretation, but a careful analysis must be undertaken to determine if it was intended that the implementing legislation was to go beyond what flows from the Directive; in any event, the same means of construction set out in (1) must apply.
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On that basis, in construing reg. 16 (5) of the Immigration (European Economic Area) Regulations 2016 (“the EEA Regulations”), a purposive approach must be followed, bearing in mind also that the question of whether a child would be compelled to leave is a practical test to be applied to the actual facts and not to a theoretical set of facts (Patel v SSHD) [2019] UKSC 59 at [30] (applying Chavez-Vilchez [2017] EUECJ C-133/15). That is a necessary corollary of the use of “unable” in reg. 16(5).
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In order to meet the requirements of reg 16(5), the key issue is inability to reside in the United Kingdom which requires a detailed consideration of the circumstances of both carers.
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The EEA Regulations were revoked on 31 December 2020. Schedule 3 of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations (SI 2020/1309) sets out those parts of the EEA Regulations preserved for immigration (but not social security) purposes; reg.16 is not one of the provisions preserved.
DECISION AND REASONS
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The Secretary of State appealed with permission against the decision of First-tier Tribunal Judge Ian Scott, promulgated on 18 July 2019, allowing Mr Velaj’s appeal against the decision of the Secretary of State made on 2 October 2017 to refuse his human rights claim, the Secretary of State having made a deportation order against him. For the reasons set out below, that decision was set aside.
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As the decision of the First-tier Tribunal has been set aside to be remade, we refer to Mr Velaj as the appellant and to the Secretary of State as the respondent as indeed they were in the First-tier Tribunal.
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The appellant is a citizen of Kosovo who entered the United Kingdom in 1998 and claimed asylum. He was joined here by his wife, elder children and his mother. Two further children were born in the United Kingdom. They are all now British citizens; the appellant’s application was refused in light of his criminal record at the time.
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On 17 May 2011 the appellant was convicted of smuggling 3.97 kilograms of a class A drug (cocaine) into the United Kingdom and sentenced to twelve years’ imprisonment. It was for that reason that the Secretary of State made the deportation order against him.
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The appellant appealed under Section 82(1) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) on human rights grounds with reference to Article 8 but at the appeal raised a new matter: that he had a derivative right of residence in the United Kingdom under the Immigration (European Economic Area) Regulations 2016 (“the EEA Regulations”). The Secretary of State consented to that matter being considered.
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The judge heard evidence from the appellant, his wife and two elder daughters. In her evidence Mrs Velaj said [51], [52] that she would not go to Kosovo with the appellant as she could not leave his mother and the children in the United Kingdom.
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The judge found that: -
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a parent of a British Citizen child is entitled to a derivative right of residence when parental responsibility is shared with another person, if (Regulation 16(5)(c)) the child would be unable to reside in the United Kingdom if both primary carers left the United Kingdom for an indefinite period, even if the other carer/parent is a British citizen;
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the appellant shares equal parental responsibility for his son with the wife/mother and the son would be unable to reside in the United Kingdom or another EEA state if both the appellant and his wife left the United Kingdom for an indefinite period; and,
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accordingly, the appellant had a derivative right to reside in the United Kingdom under the 2016 Regulations;
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there was a right of appeal as the issue relating to Regulation 36(5) requiring a valid national identity card had been conceded by the Secretary of State [69] to [71];
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Exception 3 set out in Section 33 of the UK Borders Act 2007 applied as the appellant had a derivative right to reside in the United Kingdom under the Regulations which give effect to the EU treaties [73 to 74];
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having had regard to Regulation 27 and Schedule 1 of the EEA Regulations he was not satisfied that the appellant represented a risk or danger to society [80] despite the conviction for a serious offence and a lengthy prison sentence;
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further, there are circumstances in this case such that there were very compelling circumstances sufficient to overcome the public interest in the appellant’s deportation for the purposes of Section 117C(6) of the 2002 Act [90] given the hardship that had been caused to the appellant’s wife and taking account also the best interests of his son.
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The Secretary of State sought permission to appeal on the basis that the judge had erred in misinterpreting Regulation 16 which, she contended, would apply only if both carers intended to leave the United Kingdom, which was not the case. It was also averred that the judge had failed properly to explain how there were very compelling circumstances over and above those described in Exceptions 1 and 2 of Section 117C of the 2002 Act as, on the facts of this case, it could not even be shown that the “unduly harsh” test had been met.
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On 19 August 2019 First-tier Tribunal Judge S P J Buchanan granted permission on all grounds.
Procedural History
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The appeal was initially set down for hearing on 5 November 2019 but was adjourned to permit the Secretary of State to file amended grounds which was done on 17 December 2019. A subsequent hearing set down for 30 April 2020 was adjourned in light of COVID and although the Tribunal provisionally considered disposing the issue of error of law by way of written submissions, this was not possible, and the appeal was listed for oral hearing on 18 December 2020. At the end of that hearing we announced our decision that the decision of the First-tier Tribunal involved the making of an error of law, was to be set aside, and was to be remade on a date to be fixed. The appeal then re-convened on 5 May 2021.
Amended Grounds of Appeal
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The Secretary of State averred in her amended grounds that:
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the First-tier Tribunal had no jurisdiction to consider an appeal under the EEA Regulations as there had been no decision under the Regulations, this error not being cured by the Presenting Officer’s consent for the matter to be considered;
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the First-tier Tribunal erred in considering the derivative right of residence strengthened the appellant’s Article 8 claim it being applicable only to deportees who are unable to establish any otherwise available entitlement to remain, in this case under the Human Rights Convention;
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it was for the appellant to show that the child would be compelled to leave the United Kingdom were he (the appellant) to be deported, the First-tier Tribunal’s decision pre-empting the Secretary of State’s decision and misconstruing the scope and purpose of Regulation 16;
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the First-tier Tribunal erred in pre-empting the Secretary of State’s decision as to whether, if there were a Zambrano right to reside, there were nonetheless grounds of public policy, public security and public health to justify deportation, reaching an erroneous conclusion on...
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