Upper Tribunal (Immigration and asylum chamber), 2022-10-14, EA/04456/2020 & EA/00386/2021
| Appeal Number | EA/04456/2020 & EA/00386/2021 |
| Hearing Date | 25 August 2022 |
| Published date | 01 November 2022 |
| Date | 14 October 2022 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Numbers: UI-2021-001767 & UI-2021-001796
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: UI-2021-001767
& UI-2021-001796
EA/04456/2020 & EA/00386/2021
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 25th August 2022 |
On 14th October 2022 |
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Before
UPPER TRIBUNAL JUDGE KEITH
Between
‘CB’ (JAMAICA)
(ANONYMITY DIRECTION MADE)
Appellant
and
The secretary of State for the Home department
Respondent
Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity. No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court. The anonymity direction is made as the decision discusses the personal health and welfare needs of minor children.
Representation:
For the appellant: The appellant represented himself.
For the respondent: Ms S Cunha, Senior Home Office Presenting Officer
DECISION AND REASONS
Introduction
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This is an appeal by the appellant against the decision of First-tier Tribunal Judge Traynor (the “FtT”), promulgated on 5th November 2021, by which he dismissed the appellant’s appeals against two decisions. The first decision was a refusal on 18th September 2020 of the appellant’s application for an EEA derivative residence card as the primary carer of a British citizen child living in the UK under the Immigration (EEA) Regulations 2016. The second decision was a refusal on 19th November 2020 of the appellant’s application for leave to remain under the EU Settlement Scheme, under Appendix EU of the Immigration Rules.
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In essence, in the first decision, the respondent accepted that the appellant was the primary caregiver for his British citizen child but that as he was not the sole carer. The child would not be compelled to leave the UK if the appellant were required to leave and return to his country of origin, Jamaica, indefinitely. The child’s mother (who is also the appellant’s partner) was also a joint carer with the appellant of their child, and she was a British citizen. There were no medical reasons why his partner would be unable to care for the child. In her first decision, the respondent invited the appellant to make an application by reference to his Article 8 ECHR rights, if he wished to do so. The second decision reiterated the same.
The FtT’s decision
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The FtT considered the appellant’s evidence and submissions that due to the close family unit which he formed with his partner and child, his partner would feel compelled to join him in Jamaica, in the event of his leave to remain being refused. At §21 of his decision, the FtT identified and agreed with the appellant that the sole issue to be determined was whether refusal would result in the appellant’s child being compelled to leave the UK. The FtT noted the appellant’s evidence that he was unable to afford to pay the fee to make an application under Article 8, of approximately £2,000 and there was no guarantee that that application would be successful. The appellant submitted that it was unfair that he forced to make an application outside the Rules under Article 8, when he had “Zambrano” rights under the 2016 Regulations.
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At §42, the FtT considered the appellant’s reference to the case of Shah and Patel v SSHD [2019] UKSC 59. Nevertheless, at §46, the FtT analysed and rejected the appellant’s assertion that in the event of refusal of his leave to remain, the whole family, including the British citizen child, would be compelled to leave the UK. The FtT concluded that if the appellant’s partner and child left to be with the appellant in Jamaica, it would be out of choice and not compulsion (§49). Crucially, there remained the option for the appellant to make an application by reference to Article 8. The FtT concluded at §50 that it was unlikely that the appellant’s spouse would disrupt her older child’s support network (a child by a different father with special educational needs) without encouraging the appellant to apply by reference to Article 8. The FtT was further convinced of this by the fact that the appellant’s partner is pregnant with a third child. At §52, the FtT concluded that the relevant British citizen child would not be compelled to leave the UK. The application had been made with a view to avoiding the fees involved in making an article 8 application.
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Having considered the evidence as a whole, the FtT dismissed the appeals.
The grounds of appeal and grant of permission
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The appellant lodged grounds of appeal which are essentially that the FtT erred in law in focusing his potential rights under Article 8 ECHR, when that was beside the point as to whether, in the context of Shah and Patel, he was a Zambrano carer. Moreover, the barriers to the appellant applying under Article 8 ECHR had been ignored. The grounds of appeal further asserted that the FtT had been dismissive of the appellant, when considering the appellant’s oral submissions. The FtT had also failed to consider the best interests of the appellant’s child, or even consider the appellant’s child interests as primary in his reasons.
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First-tier Tribunal Judge Gibb granted permission on 18th December 2021. The grant of permission was not limited in its scope.
The hearing before me
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At the outset, notwithstanding that the appellant is a litigant in person, I pay tribute to the quality of his oral submissions. His submissions were clear, relevant and engaged with complex legal issues. On attending the Tribunal, I provided to him copies of the Shah v Patel decision, as well as copies of the cases of SSHD v RM (Pakistan) [2021] EWCA Civ 1754; Velaj v SSHD [2022] EWCA Civ 767 and Akinsanya v SSHD [2022] EWCA Civ 37. In view of the fact that the appellant was a litigant in person, Ms Cunha agreed that she would make the respondent’s submissions first, to which the appellant would have the opportunity to respond.
The respondent’s submissions
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The Secretary of State submitted that the FtT had not erred in law. Turning first to the case of Akinsanya, Ms Cunha relied in particular on §§54 to 56. I cite the relevant passages below:
“54. At first sight there is some force in Mr Cox's position that a right arising under the EU Treaty must exist independently of any domestic rights which purport to reproduce it or which are to substantially the same effect. However, that does not in my judgment correspond to the analysis of the nature of Zambrano rights adopted by the CJEU. It is clear from Iida and NA that the Court does not regard Zambrano rights as arising as long as domestic law accords to Zambrano carers the necessary right to reside (or to work or to receive social assistance). To put it another way, where those rights are accorded what I have called "the Zambrano circumstances" do not obtain.
55. That analysis is perfectly sustainable at the theoretical level. As the Court recognises (see para. 72 of the judgment in Iida) the right of third country nationals to reside in a member state is normally a matter for that state. Zambrano rights are for that reason exceptional. They are not typical Treaty rights, since they arise only indirectly and contingently in order to prevent a situation where EU citizen dependants are compelled to leave the EU. That being so, it makes sense to treat them as arising only in circumstances where the carer has no domestic (or other EU) right to reside (or to work, or to receive necessary social assistance).
56. I do not believe that that approach is inconsistent with Sanneh. In that case, unlike this, the claimant had no right to reside under domestic law, and the issue was whether her Zambrano right to reside arose prior to the point of imminent removal. It was to that issue that the observations of Elias LJ on which Mr Cox relies were addressed. His conclusion was, in effect, that the Zambrano circumstances arose as soon as the claimant had no leave to remain and was thus (as a matter of domestic law) under a duty to leave and liable to removal – see in particular para. 169. The Court was not considering a case where the claimant enjoyed leave to remain as a matter of domestic law. In such a case, on the CJEU's analysis, the Zambrano circumstances do not obtain, and Elias LJ's observations have no purchase.”.
Ms Cunha accepted that the appellant’s role as a primary carer had never been disputed. However, as per the case of Akinsanya, Zambrano rights did not give the appellant the same rights as other EU rights. Ms Cunha accepted that the Zambrano child’s primary interests had to be considered and although not expressly referred to, it was tolerably clear that the FtT had considered the child’s best interests. The FtT had considered the evidence and had concluded that the child would not be compelled to leave the UK if the appellant left the UK for an indefinite period, as the FtT had...
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