Upper Tribunal (Immigration and asylum chamber), 2023-05-30, EA/05108/2020
| Appeal Number | EA/05108/2020 |
| Hearing Date | 21 April 2023 |
| Date | 30 May 2023 |
| Published date | 14 June 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2021-001760 [EA/05108/2020]
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2021-001760 |
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First-tier Tribunal No: EA/05108/2020 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 30 May 2023
Before
UPPER TRIBUNAL JUDGE SMITH
Between
ADEKUNLE OLUWASEUN OSUNNEYE
(NO ANONYMITY DIRECTION MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Osunneye appeared in person
For the Respondent: Ms A Nolan, Senior Home Office Presenting Officer
Heard at Field House on 21 April 2023
DECISION AND REASONS
PROCEDURAL BACKGROUND
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By a decision promulgated on 16 December 2022, the Upper Tribunal (myself and Deputy Upper Tribunal Judge Malik KC) found there to be an error of law in the decision of First-tier Tribunal Judge N M Paul dismissing the Appellant’s appeal against a decision made by the Respondent on 22 September 2020, refusing his application for a derivative residence card as the primary carer of a British Citizen child. The Tribunal gave directions for the re-making of the decision in this Tribunal. A copy of the Tribunal’s decision is appended hereto for ease of reference.
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The appeal came back before me on 31 January 2023 for re-making. On that occasion, the Respondent raised a new issue relating to the Tribunal’s jurisdiction to determine the appeal. A supplementary skeleton argument was submitted by the Respondent in which she sought to argue that the Tribunal no longer had jurisdiction to decide the appeal as regulation 16 of the Immigration (European Economic Area) Regulations 2016 (“the EEA Regulations”) had not survived the revocation of the EEA Regulations after 31 December 2020. An issue was also raised about the Respondent’s preparedness for the hearing as the Respondent had not had sight of the Appellant’s bundle before the First-tier Tribunal.
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The Appellant then as now appeared in person. I was conscious that it would be unfair for me to dismiss his appeal for want of jurisdiction without giving him the opportunity to take advice on or be given time to consider the issue. I was also told by Mr Melvin who appeared for the Respondent on that occasion that the issue of jurisdiction was to be determined in another case by a Presidential panel shortly after the hearing. He sought an adjournment so that I could consider the issue with the benefit of a decision following full argument on that issue. I agreed to the adjournment not simply for that reason but also because the Respondent did not have all the necessary documents from the Appellant in order to proceed. I gave directions for the Appellant to serve those documents and gave the Respondent the opportunity to apply for a further adjournment in the event that the decision of the Presidential panel to which he had referred had not been promulgated prior to the hearing before me (if that decision was still thought to be relevant).
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The resumed hearing of the appeal was relisted before me on Friday 21 April 2023. On Thursday 13 April 2023, the Respondent sought a further adjournment. She did so on the basis that the decision of the Presidential panel had recently been promulgated but not yet reported. She wished to rely on that decision but considered that it would be unfair for the Appellant to have to deal with it without further time. The decision in question is Secretary of State for the Home Department v Oluwayemisi Janet James (UI-2021-000631; EA/05622/2020) (“James”). In James, the Tribunal concluded that it did not have jurisdiction to re-determine Ms James’ appeal in not dissimilar circumstances to the current appeal.
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I issued a Note on 14 April 2023 informing the Appellant of the decision in James (and appending it) and inviting him to consider whether he wished to seek an adjournment of the hearing on 21 April or whether he wished to proceed. I indicated that I would be content to adjourn if he wished to make that application but equally that, if the Respondent were correct, an adjournment would “simply prolong matters to no benefit” which would ultimately be a waste of the Appellant’s time and money.
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As it was, the Appellant did not seek an adjournment. Instead, he submitted a supplementary skeleton argument advancing his position that in James the Tribunal did not conclude that it had no jurisdiction; alternatively, the decision was contrary to decisions in other (unreported) cases, and/or was wrong in law.
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At the outset of the hearing before me, I indicated to the parties that, unless they raised an objection, I intended to determine the jurisdiction issue on the basis of the parties’ positions as set out in their supplementary skeleton arguments together with my own reading of James (and as appropriate the unreported decisions to which the Appellant referred) and the relevant legislative provisions. Both parties were content to proceed in that way in relation to the jurisdiction issue.
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I also indicated that since the Appellant and his partner (JD) were both in court, it would be appropriate to hear their evidence and hear submissions as to the substance of the appeal so that, if I concluded that I had jurisdiction to determine the appeal, I could go on to do so or, if I concluded that I did not, I could still make observations about the facts of the case. Those might still be relevant as I was informed in the course of the hearing that the Appellant had also made an application under the EU Settlement Scheme (“EUSS”) which had been refused but was the subject of an appeal in the First-tier Tribunal which was presently stayed.
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In addition to the oral evidence which I heard from the Appellant and [JD], I also had a number of documents filed by the Appellant to which I refer as necessary (they are not in a paginated bundle).
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Having heard evidence from the Appellant and [JD] and submissions from both parties, I indicated that I would reserve my decision and provide that in writing which I now turn to do.
FACTUAL BACKGROUND
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Before turning to the jurisdiction issue, it is necessary to set out the factual background to the Appellant’s case as certain facts are relevant to the jurisdiction issue.
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The Appellant entered the UK as a student on 3 October 2009. His leave in that capacity was extended to 16 October 2013. Thereafter, he overstayed.
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Having made two applications for a residence card in 2013 and 2014 both of which were refused, and which led to appeals which the Appellant withdrew, on 20 June 2016, the Appellant applied for leave based on his family life. He was granted leave to remain until 21 April 2019.
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On 5 April 2019, the Appellant sought further leave as an unmarried partner (I assume of [JD]). That was granted until 19 November 2021.
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On 5 October 2019, the Appellant made an application for status under the EUSS. That was refused on 11 June 2020 which decision was upheld following administrative review on 3 July 2020.
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On 30 June 2020, the Appellant made the application under the EEA Regulations which led to the decision under appeal made on 22 September 2020.
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On 16 June 2021, the Appellant made an application under the EUSS which was refused. An appeal hearing in November 2021 was adjourned and that appeal remains stayed.
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The Appellant’s application under the EEA Regulations is premised mainly on his relationship with his child [P] who has behavioural problems. [P] was born in January 2016 and is therefore currently aged seven years. The Appellant claims a “Zambrano” derivative right to reside as he says that if he returned to Nigeria, [JD] and their children, in particular [P] would have to leave with him. [P] is a British citizen. [JD] is also a British citizen as is his other child born in May 2017. [JD] has a further child born in April 2012. The Appellant and [JD] now have a further young baby.
The Respondent’s decision under appeal refused the application under the EEA Regulations on the basis that there was insufficient evidence to show that [P] lives with the Appellant, that the Appellant makes decisions in relation to his welfare or that the Appellant is financially responsible for him. The Respondent did not accept that [P] would have to leave the UK if the Appellant were not granted a derivative right of residence as he could remain with his mother ([JD]) who could continue to care for him. It was pointed out that the Appellant could make an application to remain under Appendix FM to the Immigration Rules based on his family life. The Respondent noted that the Appellant previously had leave to remain on that basis so that it was likely that such...
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