Upper Tribunal (Immigration and asylum chamber), 2023-05-22, EA/13948/2021
| Appeal Number | EA/13948/2021 |
| Hearing Date | 02 May 2023 |
| Date | 22 May 2023 |
| Published date | 07 June 2023 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2022-002403
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2022-002403 |
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First-tier Tribunal No: EA/13948/2021 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 22 May 2023
Before
UPPER TRIBUNAL JUDGE JACKSON
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
PADUKKAGE DON BUDDHIKA DE ALWIS
(NO ANONYMITY ORDER MADE)
Respondent
Representation:
For the Appellant: Ms S Rushforth, Senior Home Office Presenting Officer
For the Respondent: Mr H Broachwalla of Counsel, instructed by Jein Solicitors
Heard at Field House by remote video means on 2 May 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 Secretary of State appeals with permission against the decision of First-tier Tribunal Judge Herwald promulgated on 7 March 2022, in which Padukkage Don Buddhika de Alwis’ appeal against the decision to refuse his application for settled or pre-settled status under the EU Settlement Scheme (the “EUSS”) dated 23 September 2021 was allowed. For ease I continue to refer to the parties as they were before the First-tier Tribunal, with Padukkage Don Buddhika de Alwis as the Appellant and the Secretary of State as the Respondent.
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The Appellant is a national of Sri Lanka, born on 2 July 1985, who first entered the United Kingdom in 2007 as the dependent of a Tier 4 Student. He remained in the United Kingdom following the expiry of that leave, making unsuccessful applications for an EEA Residence Card on 8 February 2017 and 6 November 2017 claiming to be dependant on his sister-in-law, an Irish national in the United Kingdom. The Appellant applied for settled or pre-settled status under the EUSS on 20 August 2020 and it is the refusal of that application on 23 September 2021 which is the subject of these appeal proceedings.
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The Respondent refused the application the basis that first, there was no sufficient evidence that the Sponsor was a ‘relevant person of Northern Ireland’ and secondly, there was no sufficient evidence that the Appellant was dependent on the Sponsor in that he did not have a relevant document confirming this, nor was there sufficient evidence of prior dependency (the Appellant having entered the United Kingdom in 2007 and only became related to the Sponosr by her marriage to his brother in 2015) or current dependency.
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Judge Herwald allowed the appeal in a decision promulgated on 7 March 2022 on the basis that the Respondent’s decision was not in accordance with the law and applicable Regulations. In substance, the decision was on the basis that the Appellant could have made an application under the Immigration (European Economic Area) Regulations 2016 (the “2016 Regulations”) and that the Respondent failed to observe the niceties of the Withdrawal Agreement in that Article 18(o) of the same requires the Respondent to give a form of assistance to the Appellant and in the present case, the Respondent should have considered and should now consider whether to determine the application under the 2016 Regulations rather than under Appendix EU of the Immigration Rules.
The appeal
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The Respondent appeals on three grounds. First, that the First-tier Tribunal erred in law in allowing the appeal on a basis upon which it had no power to do, there no longer being any general ground of appeal that the decision is not in accordance with the law. Secondly, that the First-tier Tribunal erred in law in failing to dismiss the appeal on the basis that the Appellant could not meet any of the requirements in Appendix EU of the Immigration Rules. Thirdly, that the First-tier Tribunal materially erred in law in not dismissing the appeal under the Withdrawal Agreement given that the Appellant is not within the scope of Article 10(1)(e) of the same as he was not residing in the United Kingdom in accordance with EU law as at 31 December 2020.
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On 14 September 2021, I issued directions to the parties indicating a preliminary decision that for the reasons set out in the grounds of appeal and the decision in Batool and others (other family members: EU exit) [2022] UKUT 00219 (IAC), there was a material error of law in the First-tier Tribunal’s decision which required it to be set aside and that on the facts of this case, it appeared that there was no basis upon which the Appellant could succeed.
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Whilst the Respondent agreed to the proposed course of action, the Appellant objected on the basis first, that on closer inspection of the application form, it was clear that the Appellant was making an application as an ‘extended family member’ under the 2016 Regulations and that, as per paragraph 66 of the decision in Batool there is a discretion to have considered the application on that basis. Secondly, the decision in Batool could be distinguished on the basis that the Appellant in the present appeal was already in the United Kingdom.
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The first of these points was maintained by Mr Broachwalla in his skeleton argument submitted just before the hearing, to which was added a further point, that the Appellant in any event came within the scope of the Withdrawal Agreement because he had previously made applications for an EEA Residence Card in 2017 and there was no requirement in Batool that an application for facilitation of residence had to be extant.
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At the hearing, Mr Broachwalla stated that he had only been instructed at 9pm the evening prior to the hearing and prepared his skeleton argument on the basis of instructions without having been provided with a full copy of the relevant documents; in particular, he had not had sight of the cover letter to the application nor the application form itself. The Appellant’s solicitors conduct in this regard is woefully inadeaquate, to instruct Counsel at such short notice, on a bank holiday, without providing relevant documents and with instructions which, for the reasons set out below were directly contrary to the relevant documents was neither appropriate nor professional.
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For Counsel’s information, I read the pertinent parts of the cover letter to the Appellant’s application, which included the following:
“… I would like to apply to the EU settlement scheme (settled and pre-settled status). I have carefully read the eligibility criteria and believe this is the correct application for me to apply. I have also extracted the relevant criteria confirming my eligibility for this application.
[Extract from the Home Office website as to the eligibility criteria set out, which included circled parts that the Appellant was not an EU, EEA or Swiss citizen but his Sponsor is; that he was a family member of an EU, EEA or Swiss Citizen; a dependent relative and the family member of an Irish citizen. There followed an extract from EU11 of Appendix EU to the Immigration Rules, in which the Appellant had circled that he is a family member who has completed a continuous qualifying period of five years in a relevant category.]
As set out above I have been living as a dependent as well as in the same household with my brother (…), sister-in-law who is also the relevant EEA citizen (…) and two nieces for well over 5 years. I have enclosed address proof for myself and Emma for the past 6 years.
To reinstate my eligibility as a dependent relative, I would also like to kindly point you to the dependent relative definition in annex 1 to appendix EU.
[relevant extract set out]
Continuous qualifying period: Evidence of continuous residence of 5 years for both the relevant EEA citizen and dependent applicant is herewith. I have checked the Annex 1 definition of the continuous qualifying period and I strongly belief that I fit the definition as outlined below.
[relevant extract set out]
I hope this information would help to demonstrate my eligibility and consequently support my application to the EU settlement scheme. I would be grateful if you could consider this application and all the supporting documents. …”
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Mr Broachwalla then perfectly properly withdrew the submission on behalf of the Appellant that it was ‘crystal clear’ that the application being made by the Appellant was one as an extended family member under the 2016 Regulations. That submission was directly contrary to what is a very clear and unambiguous document from the Applicant that he was applying under the EUSS. If Counsel had been instructed properly with sight of this document, it is unlikely that he would have included the submissions that he did in his skeleton argument. It remains unexplained as to how the Appellant’s solicitors could have properly concluded that this point could be made on the documents before the Tribunal.
On behalf of the Appellant the second point was maintained, that the Appellant fell within the scope of Article 10(1)(c) and (d) of the Withdrawal Agreement because he had previously made an application for facilitation of his residence as an extended family member in 2017 and that there was no requirement in...
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