Upper Tribunal (Immigration and asylum chamber), 2023-06-07, UI-2022-005503 & UI-2022-005504
| Appeal Number | UI-2022-005503 & UI-2022-005504 |
| Hearing Date | 04 May 2023 |
| Date | 07 June 2023 |
| Published date | 22 June 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Numbers: UI-2022-005503
UI-2022-005504
First-tier Tribunal Numbers: EA/05301/2020
EA/05302/2020
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case Nos: UI-2022-005503 UI-2022-005504 |
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First-tier Tribunal Nos: EA/05301/2020 EA/05302/2020 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 7 June 2023
Before
UPPER TRIBUNAL JUDGE KEITH
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Claimant
and
‘DO’ (Nigeria)
‘MP’ (Nigeria)
(ANONYMITY ORDER MADE)
Respondents
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.
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. The reason is that the second respondent is a minor and naming her mother, the first respondent, could result in ‘jigsaw’ identification.
Representation:
For the Claimant: Mr P Deller, Senior Home Office Presenting Officer
For the Respondents: Mr A Slatter, instructed by Paul John & Co Solicitors
Heard at Field House on 4th May 2023
DECISION AND REASONS
Background
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This is the Secretary of State’s appeal. To avoid confusion, I refer to her by that title and to the respondents (who were the appellants before the First-tier Tribunal) as the claimants.
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By a decision promulgated on 7th July 2021, a Judge of the First-tier Tribunal, Judge Bunting, allowed the claimants’ appeals under the Immigration (EEA) Regulations 2016. The facts are uncontested. I repeat them as they were recorded by the judge.
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The first claimant is a citizen of Nigeria, born on 13th July 1977. The second claimant, her daughter, and also a citizen of Nigeria, was born on 11th August 2015 and so is now aged seven at the date of this decision. They currently reside in the UK. They applied on 25th February 2020 for derivative residence cards, by virtue of the ‘Zambrano’ judgment (see Ruiz Zambrano v Office National de l'Emploi, case no. C34/09, [2012] QB 265). The Secretary of State refused the applications on 17th September 2020. The date of the applications is important because they were made before the ‘exit date’ for the UK leaving the EU (31st December 2020). The Secretary of State’s decisions were not by reference to Appendices EU or EU (Family Permit) and there is no jurisdictional issue about whether the Judge could consider the appeals.
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The first claimant had arrived in the UK on 30th August 2000 on a visit visa and had overstayed. She formed a relationship with a British citizen and gave birth to a daughter, whom I will refer to as ‘G’, on 5th October 2004. G, a British citizen, is the second claimant’s half-sister. The first claimant is her primary carer. The first claimant and G’s father subsequently separated and a number of years later, the first claimant began a relationship with a different man, a Nigerian citizen, and as a result of that relationship the second claimant was born. The first claimant and the father of the second claimant have also since separated.
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The claimants applied for leave to remain on human rights grounds, outside the Immigration Rules, on 29th July 2016 which was granted, but their leave expired on 24th February 2020. The claimants then made the applications, which are the subject of this appeal. The Secretary of State refused them under regulation 16(5) the 2016 Regulations, not because any facts were disputed, but because they had been previously been granted leave on the basis of Article 8 ECHR, and that avenue remained open to them to obtain further leave.
The Judge’s decision
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The Judge considered an appeal under the 2016 Regulations. However, and also relevant to this appeal, the Judge considered that the Secretary of State had consented to a “new matter” being considered. At §28, the Judge stated:
“For that reason, although I am considering only the question of the EEA appeal and not a freestanding article 8 appeal, I am permitted to look at the question of the claimants (and [G’s]) article 8 rights to inform the proportionality of the EEA decision.”
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The Judge asked the parties whether the two appeals stood or fell together and both accepted that they did (§38).
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Having cited regulation 16 of the 2016 Regulations, the Judge made relevant findings. In relation to G, she had had no contact with her father for a number of years. The first claimant was the sole (and therefore primary) carer for her (§43).
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The Judge found that the second claimant is the daughter of the first claimant and lives predominantly with her, but does have contact with her third country national (Nigerian) father. This involves twice-weekly contact and occasional overnight stays with the claimants (but never at his home); some financial contributions by the father to the second claimant, and some input into her schooling.
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At §47, the Judge concluded that the first claimant is the primary carer of the second claimant, but also that the second claimant’s father was involved with the child’s life, and if required there was “no reason why the second claimant could live with her father if her mother [the first claimant] were to leave the United Kingdom”. The Secretary of State argues that the word “not” is missing after the word “could” in that paragraph.
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The Judge then went on to analyse the legal principles, citing the judgment of the High Court in R (Akinsanya) v SSHD [2021] EWHC 1535 (Admin), which the Judge regarded as a “complete answer” to the Secretary of State’s position (§48). The import of that case was not discussed further, although I should add, by way of context, that the Judge had earlier refused the Secretary of State’s application to adjourn the hearing, which the Secretary of State had sought because R (Akinsanya) was being appealed, by saying at §22 that the claimants’ circumstances were substantially different from the claimant in R (Akinsanya), as the claimants had no form of leave to remain. The issues in R (Akinsanya) had included whether limited leave to remain would extinguish a Zambrano right and the effect of the 2016 Regulations. Even if the Secretary of State were to successfully appeal, R (Akinsanya) would not mean that she would succeed in resisting this appeal.
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Returning to the substance of the Judge’s decision, having cited R (Akinsanya), as a complete answer, the Judge said at §50 that the claimants “are in a different position” as they do not have leave. For that reason, the Judge said that he would have agreed with the claimants’ arguments even without R (Akinsanya) and even if any appeal against it had been allowed. The Judge observed that regulation 16 did not appear to place the restrictions on the exercise of the Zambrano rights as contended for by the Secretary of State. As per the authority of Chavez-Vilchez & Others v Raad van Bestuur van de Sociale Verbekeringsbank & Others [2017] 3 CMLR 35, Zambrano rights extended to where, as a practical matter of fact, the effect of refusal of leave would be that the EU national child would have to leave the EU with their third country national mother, as confirmed in Patel & Shah v SSHD [2019] UKSC 59. The Judge considered the Secretary of State’s argument that because an application under Appendix FM or Article 8 could have been made and might succeed, it could not be said that G would be required to leave the EU. At §57 the Judge concluded that he did not consider there was anything in the Regulations or the domestic or EU case law that supported that contention.
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The Judge concluded that in the first claimant’s case, she was G’s primary carer and if she were required to leave the UK, then G would be compelled to do so and therefore her claim succeeded without more (§60). The Judge concluded that the position of the second claimant was different, on the basis that if the second claimant were compelled to leave, then G would not necessarily be compelled to do so but nevertheless the second claimant met the terms of regulation 16(6), by virtue of being under 18; her mother was entitled to a derivative right to reside; and the second claimant did not have any form of leave to remain. Moreover if the second claimant were required to leave, the first claimant would have to leave with her, as the second claimant was without any other support network outside the UK. The Judge concluded that the fact of contact with second claimant’s father did not change the position and whilst he was involved in her life it could not be said that her claim was defeated under regulation 16(6)(d) (the first claimant would have to leave the UK if the second claimant did so for an indefinite period).
In the alternative, the Judge considered that if he were wrong in relation to the appeal under the 2016 Regulations, then the Secretary of State’s decision must comply with the principles of proportionality, in light of the Secretary of State’s consent to Article 8 being considered. The Judge concluded that the Secretary of...
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