Upper Tribunal (Immigration and asylum chamber), 2023-03-07, EA/16814/2021
| Appeal Number | EA/16814/2021 |
| Hearing Date | 02 November 2022 |
| Published date | 22 March 2023 |
| Date | 07 March 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Ce-File Number: UI-2022-003154
First-tier Tribunal No: EA/16814/2021
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Ce-File Number: UI-2022-003154 First-tier Tribunal No: EA/16814/2021 |
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THE IMMIGRATION ACTS
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Heard at Field House IAC On the 02 November 2022
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Decision & Reasons Promulgated On the 07 March 2023
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Before
UPPER TRIBUNAL JUDGE ALLEN
Between
ENTRY CLEARANCE OFFICER
Appellant
and
SIDORELA SINANAJ
(anonymity direction not made)
Respondent
Representation:
For the Appellant: Mr S Whitwell, Senior Home Office Presenting Officer
For the Respondent: Mr R Sharma, Bhogal Partners Solicitors
DECISION AND REASONS
1. The Secretary of State appeals with permission to the Upper Tribunal against the decision of the First-tier Tribunal Judge promulgated on 18 May 2022 in which she allowed the appeal of Mrs Sinanaj against the Secretary of State’s decision of 23 December 2021 refusing her application for status under the EU settlement scheme (EUSS), as the spouse of her husband a Romanian national.
2. I shall refer hereafter to the Secretary of State as the respondent, as she was before the judge, and to Mrs Sinanaj as the appellant, as she was before the judge.
3. The appellant met her future husband in May 2019 and they began a relationship shortly thereafter. In July 2020 they decided to marry. They began living together in October 2020. They registered a notice of intention to marry on 23 November 2020 and attempted to book a date for their wedding at the local registry office, but because of COVID 19 restrictions then in place marriages could not take place at that time.
4. They made an application for an EEA residence card on 29 December 2020. This application was rejected on 15 February 2021 on the basis that the appellant had not produced a valid passport and it was asserted that the appellant had no right of appeal. The couple married on 30 April 2021, and the appellant made her application under the EUSS on 13 May 2021, the refusal of which led to the appeal.
5. The judge noted the relevant provisions of the EU settlement scheme. She did not accept the argument the lack of provision for individuals such as the appellant could properly be said to amount to discrimination on the grounds of nationality. She noted that the appellant had not been prevented from making an application under the Immigration (European Economic Area) Regulations 2016 or the EUSS prior to 1 January 2021 and indeed she had made such an application as a durable partner. It was accepted that no concession had been made by the respondent as to the impact of COVID 19 and the inability of couples such as the appellant and her husband to marry prior to 31 December 2020. It was accepted that the appellant was not a spouse at the specified date, the marriage only having taken place on 30 April 2021.
6. In light of the evidence that the couple had been cohabiting for just over two months and were engaged to be married at the specified date of 31 December 2020, the judge observed that this two months of cohabitation fell well short of two years living together. She also considered the documentation including the significant level of commitment to the relationship that this and the other evidence had demonstrated and that they would have married before 31 December 2020 but for the COVID 19 restrictions.
7. The judge went on to find on balance that the marriage between the appellant and the sponsor was indicative of the durability of their historic relationship and that the evidence indicated that they were in a durable relationship at the specified date and were in a genuine marriage at the date of the hearing. The judge accepted that the appellant was a durable partner of an EEA citizen on and before 31 December 2020.
8. The judge observed however that in order to satisfy the definition of “durable partner” the Rules required a person to have a “relevant document”, and there was no dispute that she had not been granted a family permit and accepted that she did not have a relevant document to prove she was a durable partner before the specified date. Accordingly the judge found that she did not satisfy the strict definition of “durable partner” for the purposes of Appendix EU.
9. The judge went on to consider whether the respondent’s decision breached the Withdrawal Agreement. Having set out and considered relevant provisions, he found that the appellant and her spouse were both within the contemplation of the Withdrawal Agreement and that Article 10(5) provided for “an extensive examination of the personal circumstances of the persons concerned” to be undertaken. The judge found that the appellant had made a historic effort to secure her status in the UK prior to the specified date and made an application under the EEA Regulations for a family permit. That application had only been refused on account of the absence of a passport and not because of any express concerns as to the durability of the relationship between the appellant and the sponsor. The respondent had not argued that the relationship was anything other than a genuine marriage. The judge accepted that the couple would have married before the specified date had it not been for the pandemic, and noted that no public policy grounds were raised against the appellant.
10. The judge concluded that on the particular facts of the appeal, in line with Article 18(1)(r) the decision to refuse the application was disproportionate. This was because it impacted significantly upon the rights of the appellant’s husband who was currently living and working in the United Kingdom and in so doing had exercised treaty rights for the past fifteen years. In line with Article 9 of the Withdrawal Agreement the judge found that the appellant’s presence in the United Kingdom was required for the sponsor to continue to remain in the United Kingdom and that the appellant had now lost her opportunity to apply for entry clearance under the scheme because the deadline had now passed. The judge found that it would be disproportionate for the appellant to leave the UK or be required to make a further application, taking into account the fact that she had already made two applications in an attempt to regularise her stay. The appeal was therefore allowed on basis that the decision breached the Withdrawal Agreement in that the decision was disproportionate.
11. The Secretary of State sought and was granted permission to appeal on the basis that the judge had failed properly to consider the provisions of Appendix EU. The EEA Regulations which had transposed Article 3.2(b) of Directive 2004/38/EC required residence as a “durable partner” to have been facilitated in accordance with national legislation. No such document was held as no successful application for facilitation had ever been made by the appellant prior to the specified date. It was argued therefore that the judge’s interpretation of the requirements of paragraph (b)(ii), (bb), (aaa) of Annex 1 of Appendix EU was incorrect or not compatible with the requirements of the Withdrawal Agreement that the EUSS scheme was designed to implement.
12. It was also asserted that the Withdrawal Agreement provided no applicable rights to a person in the appellant’s circumstances. The appellant had not been residing in accordance with EU law as of 31 December 2020 and therefore did not come within the personal scope of the Withdrawal Agreement. Accordingly there was no entitlement to the full range of judicial redress including the Article 18(1)(r) requirement that the decision was proportionate.
13. In his submissions Mr Whitwell relied on the grounds.
14. Mr Sharma acknowledged the decisions in Celik [2022] UKUT 00220 (IAC) and Batool [2022] UKUT 00219 (IAC) and disagreed with what had been concluded there that on that basis it appeared that the Secretary of State’s case was made out.
15. Mr Whitwell made the point that the couple had married after the specified date and the application was also thereafter. The appeal had only been allowed under the Withdrawal Agreement and the findings in Celik and Batool were on all fours with this case. At the date of the Withdrawal Agreement the appellant was an undocumented family member and this was a category not in contemplation.
16. Mr Sharma argued that in Celik and Batool the Upper Tribunal had erred in its interpretation of the Withdrawal Agreement in particular in respect of Article 4 which required when considering the Withdrawal Agreement any inconsistency in definition or in law we preferred in consideration over domestic legislation. This went to the issue of definition under Article 9 and there was a clear conflict in definition between the EUSS terming of a family member and how it was defined in the Citizens’ Directive. This was in respect of the cut-off date in the Citizens’ Directive. So the definition to be preferred was that in the Directive and not in the EUSS and this was relevant to the issue of personal scope in respect of Article 10.1(e), and hence the judge had overall come to the correct conclusion that the appellant was entitled to rely on the Withdrawal Agreement.
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