Upper Tribunal (Immigration and asylum chamber), 2022-10-31, EA/11833/2021
| Appeal Number | EA/11833/2021 |
| Hearing Date | 18 August 2022 |
| Published date | 15 November 2022 |
| Date | 31 October 2022 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: EA/11833/2021
UI-2022-001097
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Upper Tribunal |
Appeal Number: UI-2022-001097 |
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(Immigration and Asylum Chamber) |
On appeal from EA/11833/2021 |
THE IMMIGRATION ACTS
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Heard at Field House On the 18 August 2022
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Decision & Reasons Promulgated On the 31 October 2022
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Before
UPPER TRIBUNAL JUDGE FRANCES
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
Dharam vir
(anonymity direction NOT MADE)
Respondent
Representation:
For the Appellant: Ms S Cunha, Home Office Presenting Officer
For the Respondent: Ms S Akinbolu, instructed by London Imperial Immigration Services
DECISION AND REASONS
1. Although this is an appeal by the Secretary of State for the Home Department, I shall refer to the parties as in the First-tier Tribunal. The appellant is a citizen of the United States of America born on 8 May 1973. His appeal against the respondent’s decision to refuse him pre-settled status under the EU Settlement Scheme (‘EUSS’) was allowed by First-tier Tribunal Judge Latta on 12 January 2022.
2. The Secretary of State appealed on the grounds that the First-tier Tribunal Judge (‘the judge’) had materially erred in law by failing to properly consider the provisions of Appendix EU contained within the immigration rules. The appellant’s application for status under the EUSS was as a family member of a relevant EEA national. The application was considered under the durable partner route where it was bound to fail. The rule required a ‘relevant document’ as evidence that residence had been facilitated under the Immigration (EEA) Regulations 2016 (‘the 2016 Regulations’) which had transposed Article 3.2(b) of Directive 2004/38/EC (‘the 2004 Directive’). No such document was held as no application for facilitation had ever been made by the appellant prior to the UK’s exit from the European Union on 31 December 2020.
3. The question of whether and how the relationship was in fact ‘durable’ at any relevant date, as is found by the judge at [29] of the decision, was of no consequence. The EUSS rules could simply not be met by a durable partner whose residence had not been facilitated. This is reflected in Article 10(2) of the Withdrawal Agreement (‘WA’) permitting the continued residence of a former documented ‘extended family member’ (‘EFM’), with an additional transitional provision in Article 10(3) for those who had applied for such facilitation before 31 December 2020. This appellant had not made any such application and therefore could not satisfy the requirements of Appendix EU.
4. It was further submitted that the judge misapplied the requirements of the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (‘the 2020 Exit Regulations’) and the WA when allowing the appellant’s appeal. An appeal under the 2020 Exit Regulations could be brought on two grounds: either the decision was not in accordance with EUSS rules or the decision breached rights under the WA. The WA provided no applicable rights to a person in the appellant’s circumstances. Article 10(1)(e) WA confirmed that beneficiaries are those who were residing in accordance with EU law as of 31 December 2020. The appellant was not, and therefore did not come within the scope of the WA. Accordingly, there was no entitlement to the Article 18(1)(r) requirement that the decision was proportionate and there was no conceivable breach of rights. Therefore, the judge erred in finding that the respondent’s refusal decision breached the WA.
5. In the alternative, the judge’s consideration of proportionality was wholly inadequate in the context of an appellant who did not meet the applicable immigration rules. At [33] of the decision, the judge found that the refusal to facilitate the rights of an unfacilitated durable partner, after the UK has left the EU is disproportionate notwithstanding the appellant had not acquired any protected rights under EU law prior to 31 December 2020. In any event, the Appellant would have been fully aware of the significance of the specified date when the UK left the EU and the need to be documented prior to that date. The judge therefore failed to provide any valid reasons for why the decision to refuse leave to remain under Appendix EU was disproportionate under the WA.
6. Permission to appeal was granted by Upper Tribunal Judge Grubb on 27 May 2022 for the following reasons:
“It is arguable that the appellant did not meet the requirement of Appendix EU and, in particular, Annex A1 of Appendix EU based upon his ‘durable relationship’. He did not satisfy the definition of a ‘durable partner’ under (b)(i) (‘durable partner’) as he did not have a “relevant document” issued under the EEA Regulations. The judge did not rely upon the alternative definition in (b)(ii) where the individual does not have that document and which it is arguable did not apply in any event. Further, the reliance upon the Withdrawal Agreement was also arguable wrong as the appellant was arguably not a beneficiary as, absent a document issued under the EEA Regulations, he was not residing in the UK in accordance with EU law before 31 December 2020.”
Relevant law
7. Article 10 of the Withdrawal Agreement states:
“1. Without prejudice to Title III, this Part shall apply to the following persons:
(a) Union citizens who exercised their right to reside in the United Kingdom in accordance with Union law before the end of the transition period and continue to reside there thereafter;
(b) United Kingdom nationals who exercised their right to reside in a Member State in accordance with Union law before the end of the transition period and continue to reside there thereafter;
(c) Union citizens who exercised their right as frontier workers in the United Kingdom in accordance with Union law before the end of the transition period and continue to do so thereafter;
(d) United Kingdom nationals who exercised their right as frontier workers in one or more Member States in accordance with Union law before the end of the transition period and continue to do so thereafter;
(e) family members of the persons referred to in points (a) to (d), provided that they fulfil one of the following conditions:
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they resided in the host State in accordance with Union law before the end of the transition period and continue to reside there thereafter;
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they were directly related to a person referred to in points (a) to (d) and resided outside the host State before the end of the transition period, provided that they fulfil the conditions set out in point (2) of Article 2 of Directive 2004/38/EC at the time they seek residence under this Part in order to join the person referred to in points (a) to (d) of this paragraph;
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they were born to, or legally adopted by, persons referred to in points (a) to (d) after the end of the transition period, whether inside or outside the host State, and fulfil the conditions set out in point (2)(c) of Article 2 of Directive 2004/38/EC at the time they seek residence under this Part in order to join the person referred to in points (a) to (d) of this paragraph and fulfil one of the following conditions:
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both parents are persons referred to in points (a) to (d);
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one parent is a person referred to in points (a) to (d) and the other is a national of the host State; or
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one parent is a person referred to in points (a) to (d) and has sole or joint rights of custody of the child, in accordance with the applicable rules of family law of a Member State or of the United Kingdom, including applicable rules of private international law under which rights of custody established under the law of a third State are recognised in the Member State or in the United Kingdom, in particular as regards the best interests of the child, and without prejudice to the normal operation of such applicable rules of private international law;
(f) family members who resided in the host State in accordance with Articles 12 and 13, Article 16(2) and Articles 17 and 18 of Directive 2004/38/EC before the end of the transition period and continue to reside there thereafter.
2. Persons falling under points (a) and (b) of Article 3(2) of Directive 2004/38/EC whose residence was facilitated by the host State in accordance with its national legislation before the end of the transition period in accordance with Article 3(2) of that Directive shall retain their right of residence in the host State in accordance with this Part, provided that they continue to reside in the host State thereafter.
3. Paragraph 2 shall also apply to persons falling under points (a) and (b) of Article 3(2) of Directive 2004/38/EC who have applied for facilitation of entry and residence before the end of the transition period, and whose residence is being facilitated by the host State in accordance with its national legislation thereafter.
4. Without prejudice to any right to residence which the persons concerned may have in their own right, the host State shall, in accordance with its national legislation and in accordance with point (b) of ...
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