Upper Tribunal (Immigration and asylum chamber), 2022-07-19, [2022] UKUT 00219 (IAC) (Batool and Ors. (other family members: EU exit))
| Judge | The Hon. Mr Justice Lane, President, Upper Tribunal Judge Lesley Smith |
| Status | Reported |
| Published date | 10 August 2022 |
| Date | 19 July 2022 |
| Hearing Date | 31 March 2022 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | other family members: EU exit |
| Appeal Number | [2022] UKUT 00219 (IAC) |
UT Neutral citation number: [2022] UKUT 00219 (IAC)
Batool and others (other family members: EU exit)
Upper Tribunal
(Immigration and Asylum Chamber)
Heard at Field House
THE IMMIGRATION ACTS
Heard on 31 March 2022
Further written submissions on 26 April and 11 May 2022
Promulgated on 19 July 2022
Before
THE HON. MR JUSTICE LANE, PRESIDENT
UPPER TRIBUNAL JUDGE LESLEY SMITH
Between
-
GHULAM BATOOL
-
MUHAMMAD ALI
-
MUHAMMAD ABEER
-
HAIDER SULTAN
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
ENTRY CLEARANCE OFFICER
Respondent
Representation:
For the appellant: Mr R De Mello and Mr R Ahmed, Counsel, instructed by jJ Law Chambers
For the respondent: Ms J Smyth, Counsel, instructed by Government Legal Department
(1) An extended (oka other) family member whose entry and residence was not being facilitated by the United Kingdom before 11pm GMT on 31 December 2020 and who had not applied for facilitation of entry and residence before that time, cannot rely upon the Withdrawal Agreement or the immigration rules in order to succeed in an appeal under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020.
(2) Such a person has no right to have any application they have made for settlement as a family member treated as an application for facilitation and residence as an extended/other family member.
DECISION AND REASONS
A. INTRODUCTION
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This appeal concerns the position of those who are, or claim to be, “other family members” within the meaning of Article 3.2 of Directive 2004/38/EC (“the Directive”), in the light of the departure of the United Kingdom from the European Union and in the context of the EU Settlement Scheme (“EUSS”). We are grateful to Mr De Mello, Mr Ahmed and Ms Smyth for their helpful written and oral submissions.
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The first and second appellants are sister and brother, aged 17 and 10 at the date of the application to the respondent. The father of the first and second appellants is Chaudhary Ghulam Shabbir. The third and fourth appellants are brothers, aged respectively 13 and 10 at the date of the application. Their father is Muhammed Amir Chaudhry.
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The parental grandparents of the appellants were issued with EUSS family permits in January 2020, in reliance on the grandparents’ relationship with Persida Sultan, a Romanian national. Persida Sultan is the daughter-in-law of the grandparents, being married to their son, Zahoor Sultan (who is the brother of the appellants’ fathers). Zahoor Sultan is, accordingly, the paternal uncle of all four of the appellants; and Persida Sultan is their aunt by marriage.
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Having been granted their EUSS family permits, the grandparents entered the United Kingdom on 17 July 2020. They were granted limited leave to remain under Appendix EU on 23 September 2020 (grandfather) and 2 October 2020 (grandmother).
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The appellants made their applications to the respondent on 3 February 2020. The applications were made under the EUSS by reference to Appendix EU (Family Permit) to the Immigration Rules (“Appendix EU (FP)”). At that time, the appellants were living in Pakistan with their grandparents. After those grandparents travelled to the United Kingdom, the appellants were living with a woman from their village who was employed to look after them.
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On 21 December 2020, Zahoor Sultan took the grandparents back to Pakistan.
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The appellants’ applications were refused by the respondent on 20 February 2020 on the basis that none of them met the eligibility requirements for an EUSS family permit. This was because, unlike the grandparents, the appellants were not family members of Persida Sultan for the purposes of the EUSS.
B. THE APPEALS
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The appellants appealed against that decision, pursuant to regulation 3 of the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (“the 2020 Appeals Regulations”). Their appeals were heard by First-tier Tribunal Judge Higgins on 7 June 2021.
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At paragraph 8 of his decision, the First-tier Tribunal Judge recorded that the appellants’ representative acknowledged that “none of the appellants could meet the eligibility requirements in Appendix EU (Family Permit) of the Immigration Rules for the reason the ECO had identified”. The Judge’s decision continues as follows:
“9. Since the decisions against which the Appellants had appealed were, Mr Makol conceded, in accordance with the withdrawal agreement and the Immigration Rules, the sole basis on which the appeals would now be presented was that the ECO’s decisions were incompatible with the respect for private and family life the Appellant’s enjoyed to which they are entitled by Article 8 of the European Convention on Human Rights and, for that reason, unlawful by virtue of section 6 of the Human Rights Act 1998.
10. Mr Makol accepted that the relevant family life had to be family life the Appellants enjoyed with the relevant EEA national and her husband, that is with Zahoor and Persida Sultan. Mr Makol also accepted that the appeal in the form in which it would now be presented had never been the subject of explicit consideration by an ECO and was a new matter for the purposes of section 85(5) of the Nationality, Immigration and Asylum Act 2002.
11. The presenting officer, Mr Yeboah, agreed. He requested that he be afforded an opportunity to consult a senior caseworker and, having done so, told me the ECO consented to the new matter being determined by the Tribunal and Mr Yeboah told me he was in a position to proceed.”
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Having considered various witness statements, and following the discovery that Persida Sultan was unable to give evidence in English (paragraph 20), the decision continued as follows:
“21. The first, and crucial, issue it was agreed I have to determine is whether family life exists between the Appellants and their paternal uncle and his wife in the UK for the purposes of Article 8. It is for the Appellants to establish, more likely than not, it does. If it does not, the refusals to grant family permits would not have interfered with any family life the Appellants enjoyed.
22. The application for a guardianship certificate in March 2020 was plainly not made to facilitate the issue of passports to the Appellants, as Zahoor Sultan suggested, because they had been issued with passports in September 2019. I consider it more likely the application for a guardianship certificate was made because it was thought there might be some advantage in doing so in the context of the Appellants’ appeals.
23. Mr Yeboah did not accept that the order purportedly recording a decision to issue the Appellants’ grandfather with a guardianship certificate was necessarily authentic because of the manner in which it is phrased. But irrespective of the guardianship certificate, I accept the Appellants were, and remain, to some degree dependent on their paternal grandfather, and I do not doubt that family life exists between their grandparents and them.
24. I also accept, as indeed an ECO was satisfied, that the Appellants’ grandparents are to some degree dependent on monies they received from Zahoor and Persida to meet their essential needs.
25. The Appellants’ grandparents have put themselves in the unenviable position of having to choose whether to live in the UK with their son and daughter-in-law or remain in Pakistan with their grandchildren. But the First and Second Appellants’ mother is in Pakistan living with her family, the Third and Fourth Appellants’ mother similarly, and the Third and Fourth Appellants’ father could return to Pakistan from Saudi Arabia to oversee his children’s care
26. Convenient as it may be for the Appellants to live with their grandparents and uncle in the UK, they have not satisfied me that the emotional ties that exist between them and their uncle and his wife in the UK are significantly closer or stronger than the emotional ties which conventionally exist between an uncle and his nephews and nieces; and since they have not satisfied me that they enjoyed, or currently enjoy, family life with their uncle and aunt in this country, refusal of family permits did not interfere with any family life they enjoyed. The decisions against which they have appealed are, I am satisfied, entirely compatible with respect for their family and private life to which the Appellants are entitled by Article 8 of the ECHR and for those reasons I dismiss the appeals.”
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Permission to appeal was granted by the First-tier Tribunal on 6 September 2021. There has since been case management by the Upper Tribunal, in light of the fact that it was considered these appeals might raise issues of general significance.
C. LEGAL FRAMEWORK
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In light of the volume and complexity of the legislative framework surrounding these appeals, we have set out the provisions which are relevant to the arguments in an Annex to this decision.
D. THE APPELLANTS’ CASE
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Mr De Mello advances the appellants’ case as follows. As a matter of domestic law, the appellants do, in fact, fall within the scope of the expression “family member of a relevant EEA citizen” in Appendix EU (FP). Those immigration rules fall to be interpreted in the light of the Agreement on the withdrawal of the United Kingdom and Great Britain and Northern Ireland from the European...
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