Upper Tribunal (Immigration and asylum chamber), 2022-04-25, HU/01586/2020 & Ors.
| Appeal Number | HU/01586/2020 & Ors. |
| Hearing Date | 07 February 2022 |
| Published date | 11 May 2022 |
| Date | 25 April 2022 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Numbers: HU/05813/2020
HU/01586/2020
and HU/01589/2020
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Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Numbers: HU/05813/2020 HU/01586/2020 HU/01589/2020 |
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 7 February 2022 |
On 25 April 2022 |
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Before
UPPER TRIBUNAL JUDGE BLUNDELL
Between
(1) md yousuf ali
(2) hasina akhter
(3) easha binte yousuf
(ANONYMITY DIRECTION not made)
Appellants
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Rajiv Sharma, instructed by Wildan Legal Solicitors
For the Respondent: David Clarke, Senior Presenting Officer
DECISION AND REASONS
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The appellants are Bangladeshi nationals. They are husband, wife and daughter. They appeal, with permission granted by First-tier Tribunal Judge Saffer, against the decision of First-tier Tribunal Judge Richards-Clarke (“the judge”).
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By his decision of 26 May 2021, the judge dismissed the appellants’ appeals against the refusal of their human rights claims. The judge found that the first appellant did not meet the requirements of paragraph 276B of the Immigration Rules and dismissed the appeal of each appellant on Article 8 ECHR grounds.
A. BACKGROUND
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The first appellant entered the United Kingdom on 3 November 2009. He held entry clearance as a Tier 4 (General) Student Migrant. The entry clearance was valid from 14 October 2009 to 31 October 2014 and conferred leave to enter until the latter date. Before the expiry of his leave, the first appellant made an application for further leave under Tier 4. Further leave was granted until 28 August 2015.
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The second appellant entered the United Kingdom on 21 November 2012. She held entry clearance as a Tier 4 (General) Student Migrant. The entry clearance was valid from 11 November 2011 to 26 March 2014 and conferred leave to enter until the latter date. Before the expiry of her leave, the second appellant made an application for leave to remain as the dependent spouse of the first appellant. She was granted leave in line with his, expiring on 28 August 2015.
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The third appellant (who was born on 25 September 2005) entered the United Kingdom on 3 July 2015. She held entry clearance as the dependent child of a Tier 4 (General) Student Migrant. The entry clearance was valid until 28 August 2015 and conferred leave to enter until that date.
The Appellants’ EEA Claims
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On 27 August 2015, and therefore before the expiry of their leave to enter or remain, the appellants made applications for residence cards as the extended family members of an EEA national, under regulations 8 and 17 of the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”). It was submitted in that application that the appellants were the extended family members of the second appellant’s brother-in-law, Manunur Rashid. Mr Rashid was said to be the spouse of the second appellant’s cousin, Anu Lipe. Mr Rashid was said to be an Italian national who was exercising his Treaty Rights in the United Kingdom.
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The appellants’ EEA applications were refused on 8 February 2016. The respondent did not accept that the second appellant was related to Mr Rashid as claimed; that Mr Rashid was a qualified person; or that the appellants had established prior or present dependency or membership of Mr Rashid’s household.
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The appellants appealed against the EEA decisions. Their appeals were initially dismissed by First-tier Tribunal Judge R Hussain but his decision was set aside on procedural grounds, as the appellants’ address had not been updated in the Tribunal’s records. The appeal returned before First-tier Tribunal Judge Mitchell on 2 April 2019. The appellants did not attend. The judge refused a renewed application to adjourn based on the second appellant’s ill-health. He went on to dismiss the appeal, finding that there was no evidence to address the three grounds of refusal.
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The appellants sought permission to appeal against Judge Mitchell’s decision. The application was refused by the First-tier Tribunal and then by Upper Tribunal Judge Mandalia. Judge Mandalia did not consider it arguable that Judge Mitchell’s decision to refuse the adjournment request and to proceed with the appeal in the appellants’ absence was unfair. His decision was sent to the parties on 17 October 2019 and the appellants’ appeal rights were exhausted at that point.
The Long Residence Claim
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On 22 October 2019, the first appellant made his application for ILR on grounds of long residence, submitting that he had accrued ten years’ continuous lawful residence in the United Kingdom and that he satisfied paragraph 276B of the Immigration Rules as a result. The second and third appellants made simultaneous applications for leave to remain as the spouse and child of a settled person (it being anticipated that the first appellant would acquire that status upon his own application being granted). The success or failure of the second and third appellants’ applications under the Immigration Rules were therefore contingent upon the first appellant’s application under paragraph 276B.
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The appellants’ applications were detailed in two letters from their previous representatives. The first letter dealt with the first appellant’s circumstances. The second letter dealt with the second and third appellants’ circumstances. The first letter set out the first appellant’s immigration history and the terms of paragraph 276B of the Immigration Rules before continuing as follows:
The Secretary of State may have concern about the applicant’s application for EEA residence card that was made on 27 August 2015. He has spent subsequent time in the UK as a non-EEA extended family member of an EEA national. Time spent in the UK can be countered [sic] as lawful residence for an EU or EEA national exercising their Treaty rights to reside in the UK (or their family members) in accordance with The Immigration (EEA) Regulations 2006/2016.
In the EEA Residence Card application the applicant has submitted that he is a family member [sic] an EEA national (Italy) Mr Mamunur Rashid and the EEA national has been exercising treaty rights in the UK. We are now submitting relevant birth certificates, marriage certificate, DNA test reports, various proofs of addresses and Self Employment related documents of the EEA sponsor in support of this application. It is submitted that the EEA sponsor has been exercising Treaty Rights in the UK as a Self Employed person. We are submitting the relevant documents with this application in order to demonstrate that the EEA sponsor is a Qualified Person while the applicant’s EEA residence card application was under consideration. As it were, the applicant’s relevant period should be counted as lawful in the UK.
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The respondent was unpersuaded by these submissions, or by the submissions in the letters which were directed to the appellants’ human rights under Article 8 ECHR. In respect of the submission that the first appellant could establish ten years’ continuous lawful residence in the UK, the respondent stated that section 3C of the Immigration Act 1971 was not engaged by an application under the EEA Regulations. She therefore concluded that the first appellant’s presence in the United Kingdom had only been lawful between 3 November 2009 (his date of entry) and 28 August 2015 (the date on which his leave to remain expired). The remainder of the letter concerns the first appellant’s actual or implied claims outwith paragraph 276B and I need not make any further reference to those conclusions, or to the corresponding conclusions in the separate decision which was sent to the second and third appellants
B. THE APPEAL TO THE FIRST-TIER TRIBUNAL
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The appellants appealed to the First-tier Tribunal (“the FtT”). On 26 March 2021, pursuant to directions issued by the FtT, an Appeal Skeleton Argument settled by Mr Sharma of counsel was filed and served by the appellants. It was submitted in that skeleton argument that: (i) the decisions on the EEA residence card applications were demonstrably incorrect (albeit by reference to evidence which was not before Judge Mitchell); and (ii) that the period from 28 August 2015 was lawful residence for the purposes of paragraph 276B, or that it should be treated as such.
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The latter submission was made on two bases. Mr Sharma relied, firstly, on what was said about time spent in the UK with a right to reside under the provisions of the EEA regulations in the respondent’s Long Residence Guidance, version 16. He relied, secondly, on the principle of equivalence in European Union Law, and submitted that the respondent was not entitled to treat the first appellant, who had made an application which relied on EU Law, less favourably than a person who had made a similar application under domestic legislation. It was for that reason that it was submitted that the first appellant was in law to be treated as a person who had leave to remain for the requisite period. Submissions were also made in reliance on other...
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