Upper Tribunal (Immigration and asylum chamber), 2022-12-29, EA/15426/2021
| Appeal Number | EA/15426/2021 |
| Hearing Date | 25 November 2022 |
| Published date | 13 January 2023 |
| Date | 29 December 2022 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2022-003455
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2022-003455
EA/15426/2021
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision & Reasons Promulgated |
|
On 25th November 2022 |
On 29th December 2022 |
|
|
|
Before
UPPER TRIBUNAL JUDGE KEITH
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
MR FATION GJERA
(ANONYMITY DIRECTION NOT MADE)
Respondent
Representation:
For the appellant: Mr P Georget, Counsel, instructed by Malik & Malik solicitors
For the respondent: Mr T Melvin, Senior Home Office Presenting Officer
DECISION AND REASONS
Introduction
-
This is an appeal by the respondent, as she was before First-tier Tribunal, referred to from now on as the ‘Secretary of State’, against the decision of First-tier Tribunal Judge Pears (the ‘FtT’), promulgated on 7th June 2022, by which he allowed Mr Gjera’s appeal (referred to as the ‘Claimant’ for the remainder of these reasons) against the Secretary of State’s refusal of his application for settled status under Appendix EU of the Immigration Rules. That decision, dated 12th May 2021, had in turn, refused the Claimant’s application dated 12th January 2021, on the basis that the Claimant had not provided sufficient evidence, as a durable partner of his EEA sponsor, that he had been issued with a family permit or a residence card under the Immigration (EEA) Regulations. The decision did not refer to any human rights, for the purposes of article 8 ECHR or otherwise, nor did it require the Claimant to provide a statement setting out grounds on which he should be permitted to remain in, and not be required to leave the UK, pursuant to section 120 of the Nationality, Immigration and Asylum Act 2002.
The FtT’s decision
-
The Secretary of State was not represented at the hearing before the FtT. The Claimant’s representative relied on a detailed skeleton argument, in which he asserted, amongst other things, that the decision was not in accordance with the Withdrawal Agreement. He also argued that the refusal of EU settled status engaged with and breached, the Claimant’s rights under article 8 ECHR. He sought to distinguish Amirteymour and others (EEA appeals; human rights) [2015] UKUT 004766 (IAC), although I have also considered Amirteymour v SSHD [2017] EWCA Civ 353. He submitted that Amirteymour did not apply, because his application had been under Appendix EU of the Immigration Rules, not the EEA Regulations. The Secretary of State’s policy was to treat applications made under the Immigration Rules as human rights claims. Applications under the EU Settlement Scheme should be treated in the same way. The grounds further asserted that the human rights claim did not constitute a new matter, within the meaning of Mahmud (s.85 NIAA 2002 - ‘new matters’) [2017] UKUT 488 (IAC) as there was no new factual matrix within the appeal to be considered. The Secretary of State ought to have considered that an Appendix EU application would involve a decision which affected the Claimant’s right to respect for his family and private life. Moreover, the Secretary of State’s policy (EU Settlement Scheme, version 15.0, dated 9th December 2021) provided a so-called ‘grace period’ (1st January to 30th June 2021) within the Claimant had applied.
-
In the reasons for his decision, the FtT recited the Claimant’s submissions. No Presenting Officer attended on behalf of the Secretary of State, so the FtT relied solely on the refusal letter as the basis for her case. In reciting the Claimant’s submissions, the FtT referred at para [11] to a ‘Schedule of Issues’ from the Claimant’s Counsel’s skeleton argument. The wording is not precisely the same as the FtT skeleton argument in the bundle before me. It states:
“The Appellant asserts that that he is a family member of an EEA national and/or a durable partner. It is submitted that the decision engages Article 8 of the European Convention on Human Rights. Paragraph 5 of the introduction of the Immigration rules has been deleted. Therefore, it is submitted that decisions under Appendix EU of the Immigration Rules are susceptible to appeal under article 8 of the ECHR. I should note that the Appellant served a section 120 statement raising Article 8 family life and private life]” [Square brackets in original].
-
The FtT included the passage in square brackets, which was not in the skeleton argument.
-
The FtT’s recitation of the law was brief. At para [12], he noted that the Claimant must show on the balance of probabilities that the requirements of Appendix EU are met. The Respondent’s decision was on a narrow basis of whether the Claimant was a durable partner of an EU citizen exercising treaty rights. There was no conclusive definition of “durable partner” within the Appendix save the couple having lived together in a relationship akin to a marriage or civil partnership for at least two years (unless there was other significant evidence of the durable relationship) or that there was evidence provided by the Claimant that the partnership was formed and was durable before 30th December 2020. At para [12], the FtT did not refer to the absence of sufficient evidence, for example, a family permit.
-
The FtT went on to find, at para [13], that the Claimant and his partner couple began their relationship in September 2019, began living together in April 2020, and had been in a durable relationship since then. They were engaged to be married in May 2020 and had booked a marriage ceremony on 15th December 2020 but were unable to marry until 19th September 2021 because of Covid restrictions. On 9th February 2021, the Claimant made the EUSS application, as a durable partner of an EEA national. The Secretary of State refused the application on 12th May 2021, but the decision was not communicated until the Claimant received it on 2nd November 2021. The FtT noted that the Claimant had made his application during the ‘grace period’.
-
The remainder of the FtT’s analysis and conclusions were brief:
“14. I find having heard the evidence of 4 individuals and reading the documentation there is other significant evidence that the Appellant was and is the durable partner of Ms Sych at the relevant time.
15. In relation to Article 8, if that is relevant, I adopt the reasoning of the Appellant’s counsel.”
The grounds of appeal and grant of permission
-
The Secretary of State lodged grounds of appeal which are essentially as follows: the FtT erred in misapplying the terms of the Withdrawal Agreement, because the Claimant did not have a ‘relevant document’, as evidence that that his residence had been facilitated under the Immigration (EEA) Regulations. His application therefore fell outside article 10 of the Withdrawal Agreement.
-
The FtT also erred in concluding that the couple’s relationship was durable in circumstances where their relationship had subsisted for barely 10 months at 31st December 2020, whereas there was a two-year requirement under the relevant provisions of the Rules.
-
First-tier Tribunal Judge Dixon granted permission on 29th June 2022. The grant of permission was not limited in its scope.
The hearings before us and the amendment application
-
The first hearing to consider whether that the FTT erred in law took place on 14th September 2022. At the beginning of the hearing, the Secretary of State’s representative, Mr Whitwell, indicated that the Secretary of State wished to apply to amend her grounds. In light of the lateness of the application, it might necessitate an adjournment, in the event that the Claimant’s representatives were not able to respond today. Mr Georget apologised for the late filing of the Rule 24 response, which had been filed and served the evening before the hearing, which he explained was in the context of a change of solicitors. Paragraphs [5] to [8] of the Rule 24 response stated:
“5. FG is driven to accept, in the event that the Tribunal considers itself bound to follow the recent decision in Batool & Ors (other family members: EU exit) [2022] UKUT 219 (IAC) and Celik (EU exit, marriage, human rights) [2022] UKUT 220 (IAC), that he 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 (Batool). FG would therefore seek to preserve his position and simply state for the record that, in his submission, Batool and Celik were wrongly decided on that point.
6. There is a further short matter in this appeal, however. In this case, FG had served a response to a s.120 notice raising article 8 ECHR. There was therefore also a human rights ground of appeal before the FTT by reference to article 8 (Batool at [78]). The FTT correctly notes this at [11] when recording the appellant’s submissions (see the third paragraph under “(C) SCHEDULE OF ISSUES”), and the appeal was allowed alternatively on article 8 grounds, the FTT having adopted those uncontested submissions [15].
7. FG’s simple point is this. The SSHD has not sought, nor was she granted, permission to appeal...
To continue reading
Request your trial