Upper Tribunal (Immigration and asylum chamber), 2017-02-02, DA/00307/2013

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: DA/00307/2013

THE IMMIGRATION ACTS

Before

The President, The Hon. Mr Justice McCloskey

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

And

REDHA HAMIDECHE

Respondent

Representation

Appellant: Mr M Matthews, Senior Home Office Presenting Officer

Respondent: Mr CH Ndubuisi of Drummond Miller Solicitors

DECISION

1. In this regrettably delayed appeal, a brief recitation of the history will suffice. I shall employ the appellations “Appellant” and “Respondent” as they applied at first instance.

2. The Appellant is aged 45 years and of Algerian nationality. Having entered the United Kingdom in 1995, he pursued an unsuccessful claim for asylum. On 10 May 1999 he married a lady of dual British and Irish nationality, as a result of which on 28 September 2000 he was granted six months leave to enter as the spouse of an EEA national who was exercising Treaty rights. I shall describe this lady as “Mrs H”. The marriage was of extremely short duration, less than two years.

3. The Appellant became a prolific offender, generating 16 separate convictions in respect of 36 offences spanning the period 1998 to 2012. His most recent offending consisted of attempted robbery and assault, attracting a sentence of 31 months’ imprisonment on 15 August 2012. This was the impetus for the Secretary of State’s decision, dated 08 February 2013, to make a deportation order against him under Section 32(5) of the UK Borders Act 2007. Thereafter, in brief compass:

   1. The First-tier Tribunal (the “FtT”) allowed the Appellant’s appeal under Article 8ECHR, in a decision dated 27 September 2013.

   2. By decision dated 28 November 2013, a Judge of the Upper Tribunal allowed the Secretary of State’s appeal.

   3. By the interlocutor of the Court of Session, dated 18 June 2015, the Appellant’s appeal against the decision of the Upper Tribunal was allowed and remittal was ordered.

4. The contours of this remitted hearing are shaped by what the Court of Session ordered:

“… The Upper Tribunal erred in law in not resolving the challenge to the Appellant’s deportation predicated on a reliance on purported EEA rights; [the Court] for that reason set aside the decision of the Upper Tribunal dated 28 November 2013 only insofar as it dismissed the Appellant’s appeal ….[and] remits the case back to the Upper Tribunal with a direction to determine whether the decision of the Respondent was unlawful (i) having regard to the possible application of the Immigration (European Economic Area) Regulations 2006; and (ii) having regard to Article 8[ECHR] in the light of the factual position pertaining at the date of the consideration to follow.”

The die is cast accordingly.

5. All of the evidence in this appeal is documentary. Some aspects of the virtual matrix are uncontroversial, others not. Having considered the evidence and the parties’ respective arguments, I find that the following material facts are either admitted or proven to the requisite standard:

1. The Appellant’s son was born on 18 August 1998 in Edinburgh, Scotland.

2. The Appellant and Mrs H were married on 10 May 1999. They separated in 2001 and remain separated.

3. On 28 September 2000 the Appellant was granted six months leave to enter the United Kingdom for the express purpose of affording him an opportunity to provide evidence that he was the spouse of a EEA national exercising Treaty rights. This grant seems to have been made outwith the Immigration Rules.

4. On 07 February 2001 Mrs H acquired the status of citizen of the Republic of Ireland.

5. During an unspecified period between 2001 and 2003 Mrs H completed an Access to University course.

6. Between September/October 2003 and June 2009 Mrs H studied nutrition at Queen Margaret University, Edinburgh, obtaining a Bachelor of Science with Honours.

7. On 29 March 2010 Mrs H’s application for Jobseeker’s Allowance was granted, backdated to 16 March 2010.

8. Mrs H began working for NHS Lothian on 31 October 2011. There are no further particulars of this, or any other, employment.

THE EEA REGULATIONS

6. This issue is susceptible to formulation in very compact terms indeed. The Appellant’s case is that he acquired a permanent right of residence in the United Kingdom qua family member of a qualified person for a minimum period of five years. The legal effect of this is that he became entitled to the enhanced protections against deportation enshrined in the Regulations and, further, that deportation action against him could only be taken under this regime. Neither the FtT nor the Upper Tribunal, in its decision of 28 November 2013, determined this issue. This is what lies at the heart of the Court of Session’s interlocutor.

7. By regulation 6(1) of the EEA Regulations a “qualified person” means a person who is an EEA national and is in the United Kingdom in the capacity of, inter alia, student. Regulation 4(1)(d) contains the following definition of “student”:

“(d) “student” means a person who—

(i) is enrolled, for the principal purpose of following a course of study (including vocational training), at a public or private establishment which is—

(aa) financed from public funds; or

(bb) otherwise recognised by the Secretary of State as an establishment which has been accredited for the purpose of providing such courses or training within the law or administrative practice of the part of the United Kingdom in which the establishment is located;

(ii) has comprehensive sickness insurance cover in the United Kingdom; and

(iii) assures the Secretary of State, by means of a declaration, or by such equivalent means as the person may choose, that he has sufficient resources not to become a burden on the social assistance system of the United Kingdom during his period of residence.”

8. There were corresponding provisions under the previous regime, the Immigration (European Economic Area) Regulations 2000.Regulation 3(1)(g) contained the following definition of “student”:

“(g) “student” means a person who—

(i) is enrolled at a recognised educational establishment in the United Kingdom for the principal purpose of following a vocational training course;

(ii) assures the Secretary of State by means of a declaration, or by such alternative means as he may choose that are at least equivalent, that he has sufficient resources to avoid him becoming a burden on the social assistance system of the United Kingdom; and

(iii) is covered by sickness insurance in respect of all risks in the United Kingdom.”

By regulation 5 a student who satisfied the requirements of regulation 3(1)(g) was encompassed within the definition of “qualified person”.

9. By regulation 4(1)(d) of the 2006 Regulations:

“(d) “student” means a person who—

(i) is enrolled, for the principal purpose of following a course of study (including vocational training), at a public or private establishment which is—

(aa) financed from public funds; or

(bb) otherwise recognised by the Secretary of State as an establishment which has been accredited for the purpose of providing such courses or training within the law or administrative practice of the part of the United Kingdom in which the establishment is located;

(ii) has comprehensive sickness insurance cover in the United Kingdom; and

(iii) assures the Secretary of State, by means of a declaration, or by such equivalent means as the person may choose, that he has sufficient resources not to become a burden on the social assistance system of the United Kingdom during his period of residence.”

10. Next, it is necessary to consider the definition of “family member”. First, by regulation 6 of the 2000 Regulations:

“(1) In these Regulations, paragraphs (2) to (4) apply in order to determine the persons who are family members of another person.

(2) If the other person is a student, the persons are—

(a) his spouse; and

(b) his dependent children.

(3) If he is a self-sufficient or retired person, the persons are—

(a) his spouse;

(b) descendants of his or of his spouse who are under 21 or are their dependants; and

(c) dependent relatives in his ascending line or that of his spouse.

(4) In any other case, the persons are—

(a) his spouse;

(b) descendants of his or of his spouse who are under 21 or are their dependants;

(c) dependent relatives in his ascending line or that of his spouse.”

With effect from 30 April 2006, the commencement date of the 2006 Regulations, the new definition of “family member” is to be found in regulation 7. For the purposes of this appeal, the definition of “family member” encompasses a person who is the spouse of another person. The consequence of having the status of family member of a qualified person is spelled out in regulation 15:

“(1) The following persons shall acquire the right to reside in the United Kingdom permanently—

(a) an EEA national who has resided in the United Kingdom in accordance with...