Upper Tribunal (Immigration and asylum chamber), 2023-08-07, UI-2022-003302
| Appeal Number | UI-2022-003302 |
| Hearing Date | 27 June 2023 |
| Date | 07 August 2023 |
| Published date | 22 August 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2022-003302
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2022-003302 |
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First-tier Tribunal No: EA/15553/2021 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 7 August 2023
Before
UPPER TRIBUNAL JUDGE JACKSON
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
And
IBRAHIM BANGURA
(NO ANONYMITY ORDER MADE)
Respondent
Representation:
For the Appellant: Mr A Kanu, legal representative
For the Respondent: Mr C Bates, Senior Home Office Presenting Officer
Heard at Field House by remote video means on 27 June 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 Birrell promulgated on 4 May 2022, in which Mr Bangura’s appeal against the decision to refuse his application under the EU Settlement Scheme (the EUSS) as a family member dated 5 November 2021 was allowed. For ease I continue to refer to the parties as they were before the First-tier Tribunal, with Mr Banguar as the Appellant and the Secretary of State as the Respondent.
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The Appellant is a national of Sierra Leone, born on 15 September 1969, who first entered the Unitd Kingdom in 2002 and who following an unsuccessful asylum claim, remained in the United Kingdom without leave. He met his partner in 2016, since when they have cohabited and had three children together. The Appellant had made an unsuccessful application under the Immigration (European Economic Area) Regulations 2016. The Appellant then made an application under the EUSS on the basis that he was a family member, namely the durable partner (now spouse) of an EEA national and it is the refusal of that application which is the subject of this appeal.
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The Respondent refused the application the basis that there was insufficient evidence of the Appellant being a family member of an EEA national because he did not have an EEA Residence Card (the required relevant document).
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Judge Birrell allowed the appeal in a decision promulgated on 4 May 2022 on the basis that although the Appellant’s marriage on 6 December 2021 was after the specified date, he was at that date a durable partner meeting the definition of such in Annex 1 of Appendix EU, specifically paragraph (b)(ii)(bb)(aaa) in relation to relevant documentation (or alternatives thereto). In particular, the Appellant was not otherwise a family member, he had no EEA Residence Card, he was unlawfully in the United Kingdom and was not in a partnership of convenience or any other durable relationship.
The appeal
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The Respondent appeals on two grounds as follows. First, that the First-tier Tribunal materially erred in law in misunderstanding the applicable rules in Appendix EU. Specifically, the interpretation given to paragraph (b)(ii)(bb)(aaa) in the definition of durable partner in Annex 1 is one which would undermine the purpose of the requirement of a relevant document as evidence of facilitation and residence in accordance with the EU Withdrawal Agreement. Secondly, that the First-tier Tribunal materially erred in law in relying on guidance from the Respondent as an aid to interpretation and which in any event could not depart from the proper meaning of the rule.
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On behalf of the Respondent, Mr Bates submitted that there were alternative ways of producing a relevant document as the durable partner set out in the definitions of Annex 1 to Appendix EU. These included that a person was not resident in the United Kingdom at all before the specified date, or that they were resident, but not as the family member of an EEA citizen. Within the definition in (aaa), the ‘unless’ part was submitted to apply to a person where the reason that they were not resident as a durable partner or with an EEA Residence Card was that they otherwise had lawful status, i.e. a different form of leave to remain in the United Kingdom. The intention being that those persons otherwise here lawfully would not be penalised for being in a relationship with an EEA national but did not require leave as such. This Appellant’s residence had not been facilitated under the Immigration (European Economic Area) Regulations 2016, nor did he otherwise have any lawful leave to remain. The provision’s purpose was not to disadvantage those who had complied with the immigration rules. Contrary to this, it was submitted that the First-tier Tribunal’s interpretation treated those who were in the United Kingdom unlawfully more favourable than those here with leave to remain, which is both irrational and perverse and there are no reasons why the provision would have been drafted in that way.
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Mr Bates submitted that the interpretation contended for by the Respondent was consistent with the Upper Tribunal’s decision in Celik (EU exit; marriage; human rights) [2022] UKUT 00220 (IAC) that a person whose entry and residence had not been facilitated under the Immigration (European Economic Area) Regulations 2016 had no substantive rights under the EU Withdrawal Agreement. The Appellant’s underlying claim to be a durable partner of an EEA national was not sufficient as that did not give rise to any automatic rights of residence, these must be recognised and facilitated by the Respondent. The Respondent did not dispute the nature of the Appellant’s relationship, just that it was not covered by the requirements of Appendix EU or the EU Withdrawal Agreement.
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As to the guidance referred to by the First-tier Tribunal, this was not legislation and can not override the wording of the rules where contrary to it. It was misconceived to rely on guidance in these circumstances. In any event, amendments have been made to the definition in Annex 1 to Appendix EU which shows the intention more clearly and consistently.
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On behalf of the Appellant, Mr Kanu submitted that the First-tier Tribunal had interpreted the rules correctly and applied them to this Appellant. When deciphering the meaning of durable partner, it was submitted that the Appellant’s history was important, in that he arrived in 2002 as a refugee but became an overstayer because of poor legal representation. It was accepted that he had no lawful leave to remain at the specified date and his earlier application for an EEA Residence Card had only been refused because he did not have a passport. The Appellant has been living with his partner in a relationship akin to marriage, where his partner and children have a permanent right to reside and therefore he meets the criteria in the Immigration Rules regardless of whether he had leave to remain. Mr Kanu offered little by way of submissions as to the correct interpretation of the relevant provision, nor why the Appellant’s status in the United Kingdom was irrelevant to it. Further, it was submitted that the Respondent could not disavow herself of her own guidelines as to the relevant provisions.
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Mr Kanu also submitted that the interpretation of paragraph (b)(ii)(bb)(aaa) of the durable partner definition in Annex 1 to Appendix EU should be a proportionality exercise, but could not explain what he meant by that, on what basis proportionality is relevant to interpretation of what is now a domestic provision of the Immigration Rules or on what basis that would in any event assist the Appellant or support the interpretation given by the First-tier Tribunal.
Findings and reasons
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The relevant requirements of the EUSS scheme are set out in Appendix EU to the Immigration Rules, paragraph EU14 of which sets out the eligibility requirements for a person seeking pre-settled status, which includes in Condition 1(a)(ii) a family member of a relevant EEA citizen and in (b) that the applicant is not eligible for indefinite leave to remain under paragraph EU11 as they have not yet completed a continuous qualifying period of five years.
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‘Family member of a relevant EEA citizen’ is then defined in Annex 1 to Appendix EU as follows:
A person who does not meet the definition of ‘joining family member of a relevant sponsor’ in this table, and who has satisfied the Secretary of State, including by the required evidence of family relationship, that they are (and for the relevant period have been), or (as the case may be) for the relevant period (or at the relevant time) they were:
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the spouse or civil partner of a relevant EEA citizen, and:
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the marriage was contracted or the civil partnership was formed before the specified date; or
the applicant was the durable partner of...
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