Upper Tribunal (Immigration and asylum chamber), 2024-01-09, UI-2022-001690
| Appeal Number | UI-2022-001690 |
| Hearing Date | 13 November 2023 |
| Date | 09 January 2024 |
| Published date | 24 January 2024 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2022-001690-(EA/10153/2021)
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2022-001690 |
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First-tier Tribunal No: EA/10153/2021 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
9th January 2024
Before
DEPUTY UPPER TRIBUNAL JUDGE MAHMOOD
Between
Mr Muhammad Amjad Ali
(NO ANONYMITY ORDER MADE)
Appellant
and
The Secretary of State for the Home Department
Respondent
Representation:
For the Appellant: Mr M Fazli, Counsel instructed by Privilege Solicitors Limited
For the Respondent: Ms S Cunha, Senior Home Office Presenting Officer
Heard at Field House on 13 November 2023
DECISION AND REASONS
Introduction
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This is my decision which I delivered orally at the hearing today. No anonymity was sought and none is required in any event when taking into account the principles of open justice.
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In this matter the Appellant appeals against the decision of First-tier Tribunal Judge Davies (“the judge”) who, sitting at the Manchester Hearing Centre on 8th November 2021, heard the Appellant’s appeal against the Secretary of State’s decision relating to an EU Settlement Scheme (“EUSS”) application. The decision was promulgated on 5th January 2022. Pursuant to grounds of appeal drafted by Mr Fazli, permission to appeal was granted by First-tier Tribunal Judge Mulready.
Permission to Appeal
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The grant of permission was in respect of all grounds, noting as follows:
“The grounds assert that the Judge erred in (i) failing to treat the Appellant’s application, made under the EU Settlement Scheme, as if it had been made under Regulation 8 of the Immigration (EEA) Regulations 2016; (ii) failing to recognise that the Respondent erred in failing to correct the Appellant’s mistake and (iii) finding that the principle of equivalence does not assist the Appellant. The grounds also state that this application raises a point of principle facing many Appellants and so Upper Tribunal guidance would be of assistance.
The position as to the duties of the Respondent where an Appellant obviously erroneously makes an EUSS application which is bound to fail is not clear, and this is a question which is clearly material to the outcome of this appeal. This decision therefore does contain an arguable error of law which is material to the outcome of the appeal.”
The Decision of the First-tier Tribunal
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The First-tier Tribunal Judge’s decision noted as follows. That the Appellant had appealed against the refusal of his application for pre-settled status. The refusal was dated October 2020. Paragraph 16 notes further that,
“There is no dispute that the Appellant did not make any application for a residence card as an extended family member. He potentially qualified from sometime in January 2020. The Appellant previously had leave to remain in the UK as he was in a relationship with a partner. The Appellant confirmed during cross-examination that he had never applied for a residence card as an extended family member. During re-examination he stated that he had been helping his brother even when the latter was with his girlfriend. I have no details of such support. Moreover, in his witness statement the Appellant stated he was a member of his brother’s household and financially dependent upon him since September 2020.”
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The judge said at paragraph 18 “On the face of it, the failure to apply for a residence card is fatal to the Applicant. However, Mr Fazli urged me to consider what he described as the principle of the EEA law of equivalence and he cited several authorities”. At paragraph 21 the judge said:
“I am satisfied that the Appellant does not qualify under the EUSS Scheme. Mr Fazli stated in his submission that the Appellant was dependent upon the sponsor in Pakistan and in the UK. That does not appear to be in dispute and certainly there is no doubt that the two brothers live together and have done so from around January 2020.“
At paragraph 23 the judge said:
“The United Kingdom decided to end the free movement of people, one of the four freedoms of the single market. The system in place for dealing with extended family members prior to the UK’s exit from the EU was part of the architecture of free movement of labour and of removing obstacles to it. ... I am satisfied that the principle of equivalence does not assist the Appellant in this appeal because the landscape has changed. It was open to the Appellant to apply under the 2016 Regulations but he did not do so even after his application was rejected in October 2020 under the EUSS.
And then at paragraph 24, the judge said he had considered the authorities referred to by Mr Fazli, including:
“FA (Iraq) v SSHD [2011] UKSC 22 when the Supreme Court was concerned with the relationship between two rights that enabled non-nationals to remain in in the UK…
…The position has changed with the UK’s exit from the European Union and the position is now as set out in EUSS. It was open to the Appellant to apply for a residence card but he did not so during the transitional period.”
The Grounds of Appeal and the Hearing Before Me.
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Ground 1 of the Appellant’s grounds of appeal contends that the judge erred by failing to treat this application as if it were an application made for an EEA residence card pursuant to the 2016 Regulations. Ground 2 contends that the Tribunal erred in not recognising that the Respondent erred in failing to correct the deficiency within the application. It was contended that the Appellant had been wrongly advised. Ground 3 contends that the Tribunal erred in concluding that the principle of equivalence does not assist the Appellant.
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I heard extensive submissions from both parties in respect of this matter. In addition to the original bundle, which was provided to the First-tier Tribunal, I was also provided today with a one and a half page written submission from Mr Fazli dated 13th November (seeking to expand the original grounds) and a copy of an unreported decision in the case of Ahmed, appeal number UI-2022-002804. On behalf of the Secretary of State I was provided today with the reported decision in Geci (EEA Regs: transitional provisions; appeal rights) [2021] UKUT 285 (IAC) and the Court of Appeal’s decision in Celik v Secretary of State for the Home Department [2023] EWCA Civ 921.
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In relation to ground 1, Mr Fazli said that the cases of Celik and Batool mean that his first ground was very substantially weakened and that although there was no copy of the Respondent’s bundle, there was evidence of dependency whereby the Appellant was heavily depending on an EEA citizen and thereby the 2016 Regulations. Mr Fazli said that it was reasonably clear that the Appellant had intended to make an application as a dependant on his brother and not under the EUSS.
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Mr Fazli said he did not have the covering letter submitted when the application was made, and his instructing solicitors do not have it either. He said that the Respondent has not been able to access it either. Mr Fazli said the point that he had sought to make was that it was the Appellant’s intention to make an application under the EEA Regulations. The only point that was taken against the Appellant was that he, the Appellant, had ticked the wrong box. Mr Fazli said that a similar issue arose in the case of Siddiqa (other family members: EU exit) [2023] UKUT 00047 (IAC). I note that was a decision of Mrs Justice Hill and Upper Tribunal Judge Kebede. Mr Fazli submitted that the Upper Tribunal Siddiqa distinguished the unreported case of Ahmed. Mr Fazli submitted, if the Appellant had known and if he was aware that an application needed to be made then he would have done so as it was intention to do so.
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In respect of ground two, Mr Fazli said this was not something that he could pursue with vigour and it had been settled by case law.
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I deal here with the case of Siddiqa. The Upper Tribunal comprehensively dealt with the arguments in that case which are being repeated today before me. In the decision of Mrs Justice Hill and UT Judge Kebede it is clear from the judicial headnote that the instant Appellant’s arguments have no merit. I can therefore understand why Mr Fazli said his arguments could not be pursued with vigour. Indeed, the judicial headnote in Siddiqa makes clear that the Appellant’s arguments cannot be raised with any hope at all. The judicial headnote is worth setting out in full because it provides an answer to the appeal before me today,
“(1) In the case of an applicant who had selected the option of applying for an EU Settlement Scheme Family Permit on www.gov.uk and whose documentation did not otherwise refer to having made an application for an EEA Family Permit, the respondent had not made an EEA decision for the purposes of Regulation 2 of the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”). Accordingly the First-tier Tribunal was correct to find that it was not obliged to determine the appeal with reference to the 2016 Regulations. ECO v Ahmed and ors (UI-2022-002804-002809) distinguished.
(2) In Batool and Ors (other family members: EU exit) [2022] UKUT 219 (IAC),...
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