Upper Tribunal (Immigration and asylum chamber), 2023-07-22, UI-2022-002773
| Appeal Number | UI-2022-002773 |
| Hearing Date | 11 July 2023 |
| Date | 22 July 2023 |
| Published date | 09 August 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2022-002773
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2022-002773 |
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First-tier Tribunal No: EA/14823/2021 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 22 July 2023
Before
UPPER TRIBUNAL JUDGE JACKSON
Between
MUHAMMAD RUFIQUE
(NO ANONYMITY ORDER MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr G Brown of Counsel, instructed by Pearl Valley Solicitors
For the Respondent: Mr T Melvin, Senior Home Office Presenting Officer
Heard at Field House by remote video means on 11 July 2023
DECISION AND REASONS
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This has been a remote hearing which has not been objected to by the parties. The form of remote hearing was by video, using Teams. There were no technical difficulties for the hearing itself and the papers were all available electronically.
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The Appellant appeals with permission against the decision of First-tier Tribunal Judge Cruthers promulgated on 28 March 2022, in which the Appellant’s appeal against the decision to refuse his application for pre-settled status under the EU Settlement Scheme (the “EUSS”) dated 7 October 2021 was dismissed.
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The Appellant is a national of Pakistan, born on 6 June 1968, who previously had an EEA Residence Card issued in Italy (periodically granted between 2008 and 21 Sepetember 2021) where he lived with the Sponsor until August 2019. From then until July 2020 he was resident in Pakistan and after a brief return to Italy, he then entered the United Kingdom on 14 Aguust 2020 with his Sponsor and relying on his Italian Residence Card. He made two applications under the EUSS on 30 August 2020 and 31 December 20201, which were both refused respectively on 18 December 2020 and 29 June 2021. There were no applications for review or appeal against those decisions. On 29 June 2021, the Appellant made a further application for pre-settled status, the refusal of which is the subject of this appeal.
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The Respondent refused the application the basis that the Appellant did not meet the requirements set out in paragraph EU11 or EU14 of Appendix EU to the Immigration Rules because there was insufficient evidence that he was a dependent relative, specifically he had no Family Permit or Residence Card issued under the Immigration (European Economic Area) Regulations 2016 (the “EEA Regulations”).
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Judge Cruthers dismissed the appeal in a decision promulgated on 28 March 2022 on all grounds. The Appellant’s claim before the First-tier Tribunal is set out in paragraphs 8 to 11 of the decision as follows:
“8. STRAND I: Miss Patel says that the appeal should be allowed because in fact the appellant is/was within the criteria to be granted status pursuant to Appendix EU. This strand of argument further boils down to reliance on paragraph EU14 of the relevant Appendix – because Miss Patel realistically accepted that the appellant could not be within paragraph EU11.
9. STRAND II: In the alternative, Miss Patel argues – by reference to the Withdrawal Agreement – that the appellant should have been granted status because he meets the criteria in Regulation 8 of the Immigration (European Economic Area) Regulations 2016 (“the 2016 EEA Regulations”). At least (Miss Patel argues) the tribunal should decide this appeal in favour of the appellant through the application of Regulation 8 of the 2016 EEA Regulations.
10. The argument that the Appellant should succeed by reference ot the 2016 EEA Regulations (“STRAND II”) is advanced through a 2-page Amended Grounds of Appeal document prepared by Miss Patel on 7 March 2022. For the respondent, Mr Philipps disagreed wih the substance of these Amended Grounds of Appeal but he indicated that he had no objection to me considering those grounds.
11. The argument that I am referring to as “STRAND II” is then expanded on through Miss Patel’s 5-page Amended Skeleton Arguments document (dated 7 March 2022). On the question of who qualifies as an Extended Family Member under Regulation 8 of the 2016 EEA Regulations, Miss Patel’s paragraph 20 places reliance on Dauhoo (EEA Regulations – reg 8(2)) [2012] UKUT 79 (IAC).
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The First-tier Tribunal found that the Appellant was dependent on and a member of the Sponsor’s household in Italy between 2008 and August 2019 and in the United Kingdom from August 2020; but there was a lack of evidence to show any dependency in the interim period and it could not be said that membership of the same household continued as the Sponsor moved to the United Kingdom at this time and the Appellant returned to Pakistan.
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In relation to the ‘Strand I’ argument, the First-tier Tribunal decided, by reference to Condition 1 of paragraph EU14 of Appendix EU and the definintions in Annex 1 thereto, that an applicant had to have “required evidence of family membership” which for a dependent relative meant having “a relevant document as the dependent relative of their sponsoring person” which in turn was effectively defined as a Family Permit issued pursuant to the EEA Regulations. The Appellant had never made any application under the EEA Regulations and given the discretionary nature of Regulation 8, it could not be said that any such application would have resulted in a Family Permit being issued.
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In relation to the second ‘Strand II’ argument, the Appellant’s claim was that he had a directly enforceable right under Article 10(2) and (3) of the Withdrawal Agreement as an extended family member who has applied before the end of the transition period. However, although there were two applications before the end of the transition period, the relevant application and decision under appeal was after it on 29 June 2021. Further, the Withrdrawal Agreement could only assist the Appellant if his residence had been facilitated by the United Kingdom by the end of the transition period. On the facts of this case, the Appellant’s residence had only ever been facilitated in Italy, not in the United Kingdom. The First-tier Tribunal found nothing in the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 (the “EU Exit Regulations”) such that Reguation 8 of the EEA Regulations continued to have any effect in relation to any relevant application by the Appellant. This was not therefore an appeal which could be allowed by reference to the EEA Regulations. Finally, thre was no breach of the Withdrawal Agreement in this case.
The appeal
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The Appellant appeals on essentially three grounds. First, that the First-tier Tribunal erred in law in its consideration of the Appellant’s appeal under Appendix EU on the basis that the definition in Annex 1 to Appendix EU was not restricted to a Family Permit but also includes a Residence Card, which did not need to have been issued from the United Kingdom (only a derivative residence card had to have been issued in the United Kindgom under the EEA Regulations). The Appellant’s Italian Residence Card was therefore sufficient to establish that he is a dependent family member of the Sponsor, satisfying the requirement for a relevant document. On entry to the United Kingdom, this was sufficient evidence of family relationship as entry was granted on that basis without the need for an EEA Family Permit.
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Secondly, that the First-tier Tribunal erred in law in relation to its assessment of the Appellant’s appeal under the EEA Regulations because (i) the Appellant had applied before the end of the six month deadline following the end of the transition period, as required in Article 18(1)(b) of the Withdrawal Agreement; (ii) of a failure to consider that the Appellant’s right of residence had been facilitated by the United Kingdom when he was granted a right of entry on 14 August 2020 which was retained at the date of application on 29 June 2021; and (iii) the EU Exit Regulations continued the effect of Regulation 8 of the EEA Regulations for the purposes of the Appellant’s application. This is said to be pursuant to Regulation 2(a) of the EU Exit Regulations in conjunction with Article 18(1)(b) of the Withdrawal Agreement and Regulation 3(2) of the EU Exit Regulations.
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Thirdly, that the First-tier Tribunal erred in law on its factual finding that the Appellant was not a member of the Sponsor’s household nor dependent on him between August 2019 and August 2020. The First-tier Tribunal is said to have failed to consider that the Appellant entered the United Kingdom using his Italian Residence Card which must have been issued on the basis of him being a family member, that card proving that the Appellant was a member of the Sponsor’s household. It is also said that there was a failure to consider that the Appellant could not return from Pakistan sooner due to the Covid-19 pandemic or that there was only a short period of quarantine required in Italy when the Appellant stayed with a friend of the Sponsor.
The Respondent opposed the appeal. In a rule 24 notice, it was submitted that for the reasons in Sohrab and Others (continued household member) [2022] UKUT 157 (IAC) the finding that there was no evidence of dependency or membership of the...
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