Upper Tribunal (Immigration and asylum chamber), 2023-02-13, EA/16462/2021
| Appeal Number | EA/16462/2021 |
| Hearing Date | 02 December 2022 |
| Published date | 28 February 2023 |
| Date | 13 February 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Case No: UI-2022-003752
First-tier Tribunal No: EA/16462/2021
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2022-003752 First-tier Tribunal No: EA/16462/2021 |
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THE IMMIGRATION ACTS
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Heard at Field House IAC On the 02 December 2022
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Decision & Reasons Promulgated On the 02 February 2023
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Before
UPPER TRIBUNAL JUDGE OWENS
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
AMARILDO SHEHU
(ANONYMITY ORDER NOT MADE)
Respondent
Representation
For the Appellant: Mr Melvin, Senior Home Office Presenting Officer
For the Respondent: Mr Malik K.C leading Counsel and Mr Mavrontonis, Counsel, instructed by Waterstone Legal Solicitors
DECISION AND REASONS
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This is an appeal by the Secretary of State against a decision of Judge of the First-tier Tribunal Wyman dated 8 July 2022, allowing Mr Shehu’s appeal against a decision to refuse him pre-settled status under the EU Settlement Scheme (“EUSS”).
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The factual matrix is not in dispute. In summary, Mr Shehu is a citizen of Albania who began cohabiting with an EEA national, Ms Kasa, a national of Greece, (“the sponsor”) in September 2018. He married the sponsor on 14 September 2021. Mr Shehu and sponsor had intended to marry sooner (before the end of 2020) but because of the Covid-19 pandemic did not manage to do so. Mr Shehu did not apply for a residence card under the Immigration (European Economic Area) Regulations 2016 (“the EEA Regulations”) prior to the revocation of the EEA Regulations on 31 December 2020. He applied for pre-settled status on 13 October 2021.
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On 5 December 2021 the Secretary of State refused Mr Shehu’s application for pre-settled status under the EUSS on the basis that (i) he was not married prior to 31 December 2020; and (ii) he could not succeed as a durable partner because he had not been issued with a residence card or family permit under the EEA Regulations.
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The judge found that the couple were in a durable relationship because they had been living together for a period of two years prior to 31 December 2020 and allowed the appeal.
Documentation
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I had before me the original decision and grounds of appeal as well as skeleton arguments prepared by both parties and a bundle of authorities.
Grounds of appeal
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The Secretary of State asserts that the judge made a material misdirection in law by failing to properly indicate the basis on which the appeal was allowed. The judge did not state whether the appeal was allowed in accordance with Appendix EU or pursuant to the Withdrawal Agreement.
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The Secretary of State also asserts that the judge failed to address the requirements of Appendix EU when allowing the appeal. It is said that the appeal manifestly could not have succeeded on this ground because Mr Shehu did not possess the “relevant document” and that the judge overlooked this requirement when allowing the appeal.
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It is further submitted that it is immaterial whether Mr Shehu was in fact in a durable relationship with the sponsor at the relevant date because Mr Shehu’s residence had not been “facilitated” prior to 31 December 2020.
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The Secretary of State’s grounds submit that the judge erred by failing to appreciate that the Withdrawal Agreement was not applicable to a person in Mr Shehu’s circumstances. He does not fall under the personal scope of the Withdrawal Agreement because he had not applied for “facilitation” pursuant to Article 10 (3) of the Withdrawal Agreement.
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Mr Melvin’s submission is that the judge made a material error of law, the decision should be set aside and remade by dismissing the appeal.
Mr Shehu’s case
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Mr Malik expanded on his skeleton argument in submissions. In summary, his argument is that, whether Mr Shehu falls within the personal scope of the Withdrawal Agreement turns on the meaning of the wording “was facilitated” at Article 10 (2). He submits that the meaning of “was facilitated” was not decided by the Presidential panel in Celik (EU exit; marriage; human rights) [2022] UKUT 00220. It should be interpreted in accordance with the Grand Chamber authority of Secretary of State v Rahman [2021] EUECJ C-83/11 [2013] QB 249. There should be a broad interpretation which should be read as “conferring an advantage”. The wording “was facilitated” should not be read as “having acquired the right to reside” nor should it be read as “having made an application for the right to reside”. A person such as Mr Shehu who was as a matter of fact in a durable relationship with an EEA national prior to 31 December 2020 falls within the personal scope of Article 10(2) or Article 10(3). This was how the appeal was put to the judge and the judge properly allowed the appeal under the Withdrawal Agreement. There is no material error of law in the decision.
Discussion
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Regulation 8 of the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (“the 2020 regulations”) sets out the grounds on which a person may appeal to the First-tier Tribunal against a relevant decision made under the EUSS. The relevant ground in this appeal was that “the decision breaches any right which that person has under Chapter 1 or Article 24(2) or 25(2) of the Chapter 2 of Title II of Part 2 of the withdrawal agreement”.
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It was not argued before the judge that the appeal could succeed on the basis that the decision was not in accordance with the residence scheme immigration rules which was the other alternative ground of appeal available.
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Article 13(3) of the Withdrawal Agreement, which is in Chapter 1 provides:
“Family members who are neither Union citizens nor United Kingdom nationals shall have the right to reside in the host state under Article 21 TFEU and as set out in Article 6(2), Article 7(2), Article 12(2) or (3), Article 13(2), Article 14, Article 16(2). Article 17(3) or (4) or Article 18 of Directive 2004/38/EC, subject to the limitations and conditions set out in those provisions.
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Article 3(2) of the Directive 2004/38/EC states:
“2.Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host member state shall, in accordance with its national legislation, facilitate entry and residence for the following persons:
(b) the partner with whom the Union citizen has a durable relationship with, duly attested.
The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people”
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The phrase “family member” is defined in Article 9 of the Withdrawal Agreement by reference to the persons “who fall within the personal scope provided for in Article 10”.
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Article 10(2) of the Withdrawal Agreement in turn provides:
“Persons falling under points (a) and (b) of Article 3(2) of Directive 2004/38/EC whose residence was facilitated by the host state in accordance with its national legislation before the end of the transition period in accordance with Article 3(2)of that Directive shall retain their right of residence in the host state in accordance with this Part, provided that they continue to reside in the host Member state thereafter”.
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Article 10(3) provides:
“Paragraph 2 shall also apply to persons falling under points (a) and (b) of Article 3(2) of Directive 2004/38/EC who have applied for facilitation of entry and residence before the end of the end of the transition period, and whose residence is being facilitated by the host State in accordance with its national legislation thereafter.
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It is common ground that Mr Shehu fell within the scope of Article 3(2)(b) of Directive 2004/38/EC before 31 December 2020 because he was in a “durable relationship” with Mrs Saka. By that date they had been living together as a couple for two years.
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Pursuant to Article 3(2) of Directive 2004/38/EC the United Kingdom had an obligation to facilitate entry and residence of Mr Shehu. This is uncontroversial.
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Mr Malik’s starting point is that the meaning of the word “facilitate” was considered by the Grand Chamber in Secretary of State for the Home Department v Rahman [2012] EUECJ C-83/11 [2013] QB 249.
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At [21] the Grand Chamber held:
[although]“Article 3(2) of Directive 2004/38/EC does not oblige the Member States to accord a right of entry and residence to persons who are family members, in the broad sense, dependent on a Union citizen the fact remains as is clear from the use of the words “shall facilitate” in Article 3(2) that that provision imposes an obligation on the Member state to confer a certain advantage compared with applications for entry and residence of other nationals of third states on applications submitted by person who have a relationship of particular dependency with the Union Citizen”.
At [22] the Grand Chamber added that, in order to meet this obligation, the Member State “shall make it possible for persons envisaged in the first subparagraph of Article 3(2) to obtain a decision on their application that is founded on an extensive examination of their personal circumstances and in the event of refusal is...
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