Upper Tribunal (Immigration and asylum chamber), 2023-01-23, EA/02799/2020 & EA/02800/2020
| Appeal Number | EA/02799/2020 & EA/02800/2020 |
| Hearing Date | 22 December 2022 |
| Published date | 07 February 2023 |
| Date | 23 January 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number:
UI-2021-001798 EA/02800/2020
UI-2021-001797 EA/02799/2020
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number:
UI-2021-001798, EA/02800/2020
UI-2021-001797, EA/02799/2020
THE IMMIGRATION ACTS
|
Heard at Field House On the 9 September and 1 November 2022
|
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Decision & Reasons Promulgated On the 23 January 2023
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Before
UPPER TRIBUNAL JUDGE BLUNDELL
and
DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
HARI SINGH & MANJIT KAUR
(ANONYMITY NOT ORDERED)
Respondents
Representation:
For the Appellant: Ms Ahmed, Senior Presenting Officer
For the Respondent: Mr Nadeem, Legal Representative of City Law Immigration
DECISION AND REASONS
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The Secretary of State for the Home Department appeals, with permission granted by Designated Judge Shaerf, against the decision of Judge Sweet (“the judge”), who allowed Mr Singh’s and Mrs Kaur’s appeals against the refusal of their applications for Residence Cards on the basis set out in R v Immigration Appeal Tribunal & Surinder Singh ex parte SSHD (C-370/99); [1992] 3 CMLR 358.
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To avoid confusion, we will refer to the parties as they were before the FtT: Mr Singh and Mrs Kaur as the appellants and the Secretary of State as the respondent.
Background
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The appellants are Indian nationals who were born on 8 January 1936 and 1 March 1939 respectively. Their son, Sukhdev Singh, is their sponsor. He is a British national who was born on 20 May 1975.
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The appellants entered the United Kingdom on 27 March 2019. They entered by aeroplane from Fiumicino Airport in Rome to Gatwick Airport, South Terminal. On arrival, an Immigration Officer with stamp number 6465 placed a stamp in both appellants’ passports. The stamp stated that the appellants had been
Admitted to the United Kingdom under the Immigration (EEA) Regulations 2016.
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On 20 September 2019, the appellants applied for Residence Cards as the family members of a UK national, under regulation 9 of the Immigration (EEA) Regulations 2016. It was submitted that the sponsor had lived and worked in Italy and that the appellants had been granted visas to enter that country as his dependents. The letter which supported the application stated that
The application for his parents were submitted whilst Mr Sukhdev Singh as [sic] living and working in Italy. Both applicants were subsequently granted their visas to live in Italy as the dependent upon Sukhdev Singh an [sic] they moved to Italy on a permanent basis on the 22 July 2018. Both applicants live [sic] at the same address and all their costs of living in Italy were met by the Sponsor who was working and paying the costs for the Applicants to live in Italy.
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It was submitted that the appellants fell within the scope of ‘the Surinder Singh policy’1 and that they should be ‘granted leave to remain accordingly’. It was also submitted that the appellants satisfied the definition of an extended family member in regulation 8(3) of the 2016 Regulations (the relative of an EEA national who required the care of the EEA national on serious health grounds).
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Various documents were submitted in support of the application, establishing the relationship between the appellants and the sponsor and his economic activity in Italy, amongst other things. We note two features of those documents at this stage. The appellants’ passports clearly showed that they entered Italy from India on 22 July 2018, having been granted Schengen visas which were valid from 16 July to 19 August 2018. The appellants’ application form stated that the sponsor had stopped working in Italy and returned to the UK (for the purposes of his children’s education) in April 2018.
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The applications were refused by the respondent on 13 March 2020. There were two grounds of refusal:
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Noting the dates outlined above, the respondent did not accept that the appellants had resided together with the sponsor in Italy, as he had returned to the UK by the time they entered Italy (regulation 9(2)(b)); and
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There was no evidence to show that the residence of the appellants or the sponsor in Italy was ‘genuine’, as required by regulation 9(2)(c) and defined by regulation 9(3).
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No consideration was given to the submission that the appellants met the definition of an extended family member in regulation 8(3).
The Appeal to the First-tier Tribunal
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The appellants appealed and their appeals were heard by the judge, sitting at Hatton Cross, on 26 March 2021. The appellants were represented by counsel. The respondent was not represented. The judge heard oral evidence from the sponsor and submissions from counsel before reserving his decision.
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In his reserved decision, which was issued on 30 March 2021, the judge found that the appellants ‘had received an EEA family permit on 29 March 2019 and that the ‘Surinder Singh policy applied in respect of their existing family permit’ and that they met the requirements of regulation 9(2). He noted that there had been some conflicting evidence about whether the appellants lived in Italy with the sponsor but he attached significance to the fact that the sponsor had been ‘responsible for the costs of the Italian rental property from July 2017 to May 2019 and he visited them there on a number of occasions’.
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The judge found in the alternative that the appellants met the requirements of regulation 8(3) as a result of their health conditions.
The Appeal to the Upper Tribunal
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The respondent sought permission to appeal on three grounds. The first was that the judge had misdirected himself in law in allowing the appeal under regulation 9(2) because the sponsor was not living with the appellants in Italy before he returned to the UK in April 2018. The second ground was that the judge had failed to consider whether the sponsor or the appellants’ residence in Italy was genuine. The third ground was that the judge had misdirected himself in law because regulation 8 applied only to those whose sponsors were EEA nationals which, by definition, excluded British citizens.
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Judge Shaerf granted permission. He considered it arguable ‘that the judge erred in law when he decided the appeal by way of reference to reg 7 of the 2016 Regs when the relevant question was reg 9 because the judge’s conclusion that the appellants satisfied the requirements of reg 9(2) was incorrectly based on the fact that the appellants had obtained EEA Residence Cards in Italy’.
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There was a provisional view expressed by the Resident Judge at Taylor House that Judge Sweet’s decision should be reviewed and set aside under rule 35 of the FtT Procedure Rules. That suggestion was opposed by the appellants, however, as it was observed (correctly) that both the Resident Judge and Judge Shaerf were mistaken about Judge Sweet having referred to regulation 7. The matter was therefore listed before the Upper Tribunal pursuant to the grant of permission to appeal.
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The appeal first came before us on 9 September 2022. We observed that there was no information before us concerning the circumstances in which an Immigration Officer at Gatwick had admitted the appellants to the United Kingdom on 27 March 2019. We adjourned the hearing in order for the respondent to clarify in writing what had occurred on that date and for the parties to produce the original passports for our consideration.
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In the event, Ms Ahmed filed a short, written submission in advance of the reconvened hearing in which she stated that there were no contemporaneous records of the events of 27 March 2019. It was nevertheless clear, she submitted, that the Immigration Officer had not given the applicants a Family permit on that occasion, as a Family Permit could only be granted by an Entry Clearance Officer.
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There was also a flurry of emails between the parties, all of which were copied to the Upper Tribunal, about our second direction. We need say nothing more about those exchanges than this: the passports were not discovered by the appellants’ representatives, or by the respondent, and it is not clear where they are.
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Mr Nadeem also filed a short, written submission for the assistance of the Tribunal. We are grateful for that document although it is correct to note that matters moved on significantly during oral argument.
We suggested to the advocates in advance of their submissions that the appellants might...
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