Upper Tribunal (Immigration and asylum chamber), 2023-04-28, EA/06166/2021 & EA/06162/2021
| Appeal Number | EA/06166/2021 & EA/06162/2021 |
| Hearing Date | 02 March 2023 |
| Published date | 16 May 2023 |
| Date | 28 April 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
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Case No: UI-2022-004418, UI-2022-004409 |
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First-tier Tribunal No: EA/06162/2021, EA/06166/2021 |
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2022-004418 UI-2022-004409 |
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First-tier Tribunal No: EA/06162/2021 EA/06166/2021 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On the 28 April 2023
Before
UPPER TRIBUNAL JUDGE GRUBB
Between
THE ENTRY CLEARANCE OFFICER
Appellant
and
A H
A M
(ANONYMITY ORDER MADE)
Respondents
Representation:
For the Appellant: Ms S Rushforth, Senior Home Office Presenting Officer
For the Respondents: Mr C Holmes, counsel
Heard at Cardiff Civil Justice Centre on 2 March 2023
Order Regarding Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the respondents are granted anonymity. They shall be referred to as “AH” and “AM”.
No-one shall publish or reveal any information, including the name or address of the respondents, likely to lead members of the public to identify the respondents. Failure to comply with this order could amount to a contempt of court.
DECISION AND REASONS
Introduction
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Although these are appeals by the Entry Clearance Officer (“ECO”), for convenience hereafter I will refer to the parties as they appeared before the First-tier Tribunal.
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The ECO appeals against a decision of the First-tier Tribunal (Judge Browne) which allowed the appellants’ appeals against the ECO’s decisions made on 5 March 2021 to refuse their applications made on 2 December 2020 for family permits as ‘extended family members’ of their uncle (the sponsor) a British citizen under reg 12(4) (read with regs 8 and 9) of the Immigration (EEA) Regulations 2016 (SI 2016/1052 as amended) (the “EEA Regulations”).
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It is common ground between the parties that the EEA Regulations and relevant EU law continue to apply to these appeals after 31 December 2020.
Background
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The appellants are citizens of Pakistan born on 23 October 2012 and 24 January 2014 respectively. They are the nephews of the sponsor, [MFA] who is a British citizen.
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Between September 2019 and June 2020, the sponsor lived and, for the most part, worked in the Republic of Ireland. He lived there with the appellants’ mother, his sister. It is not disputed that he exercised EU Treaty rights whilst in Ireland. The sponsor and appellants’ mother returned to the UK on 26 June 2020 after he was laid-off due to the consequences of the Covid-19 pandemic.
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On return to the UK, the appellants’ mother was granted pre-settled status under the EUSS with leave until 26 November 2025.
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The appellants unsuccessfully made applications for entry clearance as visitors on 24 August 2018 (refused on 6 November 2018) and 25 April 2016 (refused on 9 May 2016).
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On 2 December 2020, the appellants made applications for family permits as the ‘extended family members’ (“EFMs”) of the sponsor (their uncle) as a returning British citizen under the EEA Regulations. They claimed that they were “dependent” upon the sponsor and so were EFMs applying reg 8(2) and that the sponsor, as a returning British citizen having exercised Treaty rights in Ireland, was to be treated as if he were an EEA national under reg 9(1A) and (2).
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On 5 March 2021, the ECO refused the applications. He did so on the basis that EFMs, such as the appellants claimed to be, could not rely upon reg 9 (so that the sponsor were treated as if he were an EEA national) because they were expressly excluded by reg 9(4)(b). The ECO did not notice that reg 9(4)(b) had been revoked on 28 March 2018 and reg 9(1A) and (2) inserted bringing within reg 9 EFMs in the light of the CJEU’s decision in SSHD v Banger (Case C-89/17) [2018] Imm AR 1205 (“Banger”) (see, the Immigration (EEA Nationals) (EU Exit) Regulations 2019 (SI 2019/468), reg 3(5)).
The Appeal to the First-tier Tribunal
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The appellants appealed to the First-tier Tribunal. Judge Browne allowed the appellants’ appeals under the EEA Regulations. The judge accepted that the appellants were “dependent” upon the sponsor as so were EFMs falling within reg 8(2). Secondly, the judge concluded that the sponsor, a returning British citizen, was to be treated as an EEA national applying reg 9. Thirdly, as a consequence, the appellants were entitled to family permits under reg 12 as EFMs.
The Appeal to the Upper Tribunal
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The ECO accepted that the refusal decisions wrongly relied upon reg 9(4)(b) which had been revoked. However, the ECO challenged the judge’s decision to allow the appeal on four grounds.
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First, the judge had wrongly concluded that reg 9(1A) applied so as to treat the sponsor, a returning British citizen, as if he were an EEA national. Regulation 9(2)(b) required that the appellants and sponsor “resided together in an EEA State” and they created or strengthened their family life during their “joint residence in the EEA State”. The appellants had not resided in Ireland with the sponsor.
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Second, the sponsor did not qualify as an “EEA national” and so the appellants could not be EFMs of an EEA national under the EEA Regulations.
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Third, any reliance by the judge on reg 7, and that the appellants were “family members”, was wrong. They were not “family members” of the sponsor and their mother was not an EEA national.
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Fourth, even if the appellants were the EFMs of the sponsor under the EEA Regulations, the judge was wrong to conclude that the ECO must issue family permits to them as reg 12(4) and (5) conferred a discretion to issue a family permit in those circumstances.
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On 10 September 2022, the FtT (Judge Cruthers) granted the ECO permission to appeal.
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The appeal was listed at the Cardiff CJC on 2 March 2023. The ECO was represented by Ms S Rushforth and the appellants by Mr C Holmes. I heard submissions from both representatives and Mr Holmes relied upon a skeleton argument.
The Issues
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Mr Holmes accepted that the appellants could not succeed under the EEA Regulations because they had not “resided together” with the sponsor in Ireland as required by reg 9(2)(b) (or “jointly” in Ireland - reg 9(2)(c)-(f)).
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However, Mr Holmes submitted that the appellants could succeed under EU law because that was not a necessary requirement to establish their derived right to have their entry and residence facilitated by reference to the ECJ/CJEU case law concerning the derived rights under EU law of EFMs of EU citizens returning to their own EU state having exercised Treaty rights in another EU state. Mr Holmes relied on the cases of R v IAT (Surinder Singh) ex p SSHD (Case C-370/90) [1992] Imm AR 565 (ECJ) (“Surinder Singh”); O and B v Minister voor Immigratie, Integratie en Asiel (Case C-456/12) [2014] QB 1163 (“O and B”) (CJEU); and Banger (CJEU).
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Mr Holmes accepted in relation to Ground 3 that the appellants’ case was based entirely on them being EFMs and not “family members” of the sponsor. They could not rely upon being “family members” of their mother, who is not an EU or British citizen.
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Finally, Mr Holmes conceded Ground 4 that, if the appellants could succeed, the ECO had a discretion whether to issue them with family permits rather than, as the judge concluded, a duty or obligation to do so.
The Legal Framework
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The ‘free movement’ rights (entry and residence) of EU citizens and their family members are provided for in the Citizens’ Directive (Directive 2004/38/EC) (see Art 1(a)).
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EU citizens are persons who have the nationality of a Member State (see Art 2(1)).
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"Family member" includes "the spouse" (Art 2(2)(a)), a registered partner (Art 2(2)(b)), direct descendants under the age of 21 of the EU citizen or of the spouse or partner or who are dependants of the EU citizen or of the spouse or partner (Art 2(2)(c)) and "the dependent direct relatives in the ascending line and those of the spouse" of the EU citizen (Art 2(2)(d)).
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Article 3 provides as follows:
"1. This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.
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:
(a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;
(b) the partner with whom the Union citizen has a durable relationship, duly attested.
The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial or entry or residence to these people."
The free movement rights of “family members” of EU nationals in Art...
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