Upper Tribunal (Immigration and asylum chamber), 2023-02-22, EA/14985/2021
| Appeal Number | EA/14985/2021 |
| Hearing Date | 19 January 2023 |
| Published date | 09 March 2023 |
| Date | 22 February 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI- 2022-002839
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Appeal No: UI-2022-002839 |
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First-tier Tribunal No: EA/14985/2021 |
THE IMMIGRATION ACTS
Decision & Reasons Promulgated
On 22 February 2023
Before
UPPER TRIBUNAL JUDGE GRUBB
Between
THE SECRETRAY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
MARIO HASMUCA
Respondent
Representation:
For the Appellant: Ms S Rushforth, Senior Home Office Presenting Officer
For the Respondent: Mr M Brooks instructed by Nova Legal Services
Heard at Cardiff Civil Justice Centre on 19 January 2023
DECISION AND REASONS
Introduction
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Although this is an appeal by the Secretary of State, for convenience I will refer to the parties as they appeared before the First-tier Tribunal.
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The Secretary of State appeals against a decision of the First-tier Tribunal (Judge Richards-Clarke) which allowed the appellant’s appeal against the respondent’s decision made on 28 October 2021 to refuse his application for leave (or pre-settled status) made on 7 May 2021 under the EU Settlement Scheme (“EUSS”) in Appendix EU of the Immigration Rules.
Background
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The facts, accepted by the judge, are not in dispute.
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The appellant is a citizen of Albania who was born on 27 June 1996. He is the spouse of an EU national, Xhensia Kodra, a Greek citizen whom he married on 15 May 2021.
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The appellant and Ms Kodra met, and began a relationship, in Albania around February 2018. In September 2018, the appellant came to the UK. In November 2019 and February 2019, Ms Kodra visited the appellant in the UK and on the second visit they became engaged. In July 2020, Ms Kodra again came to the UK and has remained here ever since, living with the appellant since August 2020. On 24 September 2020, Ms Kodra was granted pre-settled status and leave until 25 September 2025 under the EUSS. Between October 2020 and May 2021 the appellant and Ms Kodra made attempts to marry but were unable to do so because of Covid-19 restrictions. They eventually married on 15 May 2021 at the Camden Register Office.
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On 7 May 2021, the appellant applied under the EUSS for pre-settled status and leave as the “durable partner” of Ms Kodra. On 28 October 2021, the respondent refused that application. The appellant was not the “family member of a relevant EEA citizen” as required by EU14, Condition 1 in Appendix EU. First, the appellant could not succeed as a spouse under the EUSS as his marriage had taken place after the specified date (31 December 2020), namely on 15 May 2021. Second, the appellant could not succeed as a “durable partner” because to fall within the definition in Annex 1 to Appendix EU he had to have been issued with (which he had not) a residence permit under the Immigration (EEA) Regulations 2016 (SI 2016/1052) on the basis of a ‘durable relationship’ with an EEA national prior to 31 December 2020.
The Appeal to the First-tier Tribunal
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The appellant appealed to the First-tier Tribunal under reg 3 of the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (SI 2020/61) (the “Appeals Regulations 2020”) relying on the two grounds in reg 8(2)(a) and reg 8(3)(b) which provide as follows:
“8(1) An appeal under these Regulations must be brought on one or both of the following two grounds.
(2) The first ground of appeal is that the decision breaches any right which the appellant has by virtue of—
(a) Chapter 1, or Article 24(2) or 25(2) of Chapter 2, of Title II of Part 2 of the withdrawal agreement,
….
(3)The second ground of appeal is that—
….
(b) where the decision is mentioned in regulation 3(1)(c) or (d), it is not in accordance with residence scheme immigration rules; ….””
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The reference to the “residence scheme immigration rules” in reg 8(3)(b) includes the EUSS rules in Appendix EU (see EU (Withdrawal Agreement) Act 2020, s.17(1)).
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First, Judge Richards-Clarke accepted that the appellant could not succeed under the EUSS as a ‘spouse’ or ‘durable partner’. At [22]-[24], the judge said this:
“22. The Appellant’s marriage to his EEA national sponsor took place on 15 May 2021, after the specified date of 31 December 2020 when the United Kingdom left the European Union. The Appellant is therefore unable to satisfy the Respondent that he is the family member of a relevant EEA citizen as defined in Annex 1- Definitions which requires that the marriage be contracted before the specified date.
23. For the Appellant to be meet the requirements of Appendix EU as a durable partner then he is required to be in a durable relationship with his relevant EEA national sponsor for Appeal Number: EA/14985/2021 5 two years and hold a relevant document issued under the Immigration (EEA) Regulations 2016. It is not in dispute that the Appellant has not applied for or obtained this document.
24. In these circumstances I am satisfied that the Appellant is not able to meet the requirements of Appendix EU as the family member of a relevant EEA national.”
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The judge’s findings and conclusion on this issue is not challenged. The appellant did not contend that he should succeed under the EUSS.
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Second, the appellant relied upon the Withdrawal Agreement between the EU and UK on exiting the EU (Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (2019/C 384 1/01)), in particular Art 10 and 18(1)(r) within Part 2, Chapter 1, of the Withdrawal Agreement. The appellant argued that he and Ms Kodra came within the scope of the Withdrawal Agreement under Art 10 and relied on Art 18(1)(r) providing for a right of access to administrative and judicial redress procedures and that any decision should be proportionate.
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Judge Richards-Clarke accepted that the appellant and Ms Kodra came within Art 10 and the scope of the Withdrawal Agreement. At [25], the judge said this:
“25. Article 10 of the Withdrawal agreement sets out the personal scope for rights to be protected. This includes Union citizens who exercised their right to reside in the United Kingdom in accordance with Union law before the end of the transition period and continue to reside thereafter and their family members who resided in the United Kingdom in accordance with Union law before the end of the transition period and continue to reside in the United Kingdom thereafter. I am satisfied that the both the Appellant and Ms Kodra are within the scope to have their rights protected under the Withdrawal Agreement”.
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Further, Judge Richards-Clarke accepted that the appellant was a ‘durable partner’ and, in the light of all the circumstances including their inability to marry prior to 31 December 2020 because of the Covid-19 pandemic, the decision to refuse him leave was disproportionate. At [27]-[30] the judge said this:
“27. I am satisfied that this means that I am required to conduct a dual examination in a case such as this where the decision is lawful in accordance with the Immigration Rules Appendix EU but the particular specific facts and circumstances of this case mean that a consideration must be undertaken as to whether the decision is proportionate. Here, the Appellants marriage was delayed due to the COVID-19 pandemic. Given the facts before me if the Appellant had been able to marry in the autumn of 2020 as had been intended then his application for leave to remain as the family member of a relevant EEA national would have been successful. The evidence before me is that the only reason that the Appellant was not able to marry and the marriage be contracted before the specified date of 31 December 2020 was due to the cancellations and lack of appointments available due to restrictions in place during the COVID-19 pandemic.
28. The evidence before me is that the Appellant’s relationship with his EEA national sponsor began in February 2018, they were engaged to be married in February 2020, their cohabitation began in August 2020 and from October to May 2021 were attempting to marry. The evidence before me is that since August 2020 the Appellant and his EEA national sponsor have lived together and continued to do so. This is supported by the unchallenged witness evidence before me together with the documentary evidence of their relationship which culminated in their marriage in May 2021.
29. In the decision 28 October 2021, the Respondents review and at the hearing before me the Respondent does not properly engage with the question of whether there has been a breach of rights under the withdrawal agreement. In the Appeal Note 25 March 2022 I am directed by the Appellant to other circumstances where concessions have been made by the Respondent. At this time the Respondent has not made any concessions for any such applicants that find themselves in such a position as the Appellant today. This is confirmed in paragraph 11 of the Respondent’s Review 30 March 2022 that the Home Office has not amended the policy for spouses who did not marry by 31 December 2020, even if they intended to marry, but could not do so due to Covid 19.
30. In these circumstances I am satisfied that the decision to refuse the...
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