Upper Tribunal (Immigration and asylum chamber), 2023-11-16, UI-2023-004190
| Appeal Number | UI-2023-004190 |
| Hearing Date | 08 November 2023 |
| Date | 16 November 2023 |
| Published date | 01 December 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2023-004190 (EU/50093/2023)
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2023-004190 |
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First-tier Tribunal No: EU/50093/2023 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
16th November 2023
Before
UPPER TRIBUNAL JUDGE SMITH
DEPUTY UPPER TRIBUNAL JUDGE BLACK
Between
HASNA TAFANY
(ANONYMITY ORDER not MADE)
Appellant
And
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellants: Mr M Al-Rashid, Counsel instructed via Carlton Law Chambers
For the Respondent: Ms S McKenzie, Senior Home Office Presenting Officer
Heard at Field House on Wednesday 8 November 2023
DECISION AND REASONS
BACKGROUND
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The Appellant appeals against the decision of First-tier Tribunal Judge S L Farmer dated 5 September 2023 (“the Decision”) dismissing the Appellant’s appeal against the Respondent’s decision dated 4 January 2023 refusing her settled status under the EU Settlement Scheme (“EUSS”).
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The facts of the case are not in issue and can be quite shortly stated. The Appellant is a national of Morocco. She came to the UK in 2012 as a student. She entered into a relationship with a British national and the couple have two children, also British citizens, born in 2012 and 2016.
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The Appellant applied for and was granted a derivative right of residence as the primary carer of her eldest child (“a Zambrano carer”) following a successful appeal, in 2015. Her derivative residence card was valid for 5 years from 26 January 2015. As we understood Mr Al-Rashid to accept, that five years’ residence card could not have entitled the Appellant to permanent residence under EU law or under the Immigration (European Economic Area) Regulations 2016 (“the EEA Regulations”) (see paragraph 15 of those regulations). It was a derivative right and not an exercise of Treaty rights.
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In January 2020, the Appellant made an application to remain under Appendix FM to the Immigration Rules. She was granted limited leave to remain until 28 July 2022 which has been further extended until 31 December 2024. We observe that, if the Respondent accepts that the Appellant’s residence as a Zambrano carer counts towards a period of lawful residence, the Appellant will have completed ten years’ lawful residence in January 2025. That though has no relevance to this appeal.
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The Appellant applied for settled status under the EUSS on 10 November 2022, based on her status as a Zambrano carer for five years between 2015 and 2020 which was refused by the decision here under appeal.
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The Appellant’s case was argued under the Immigration Rules relating to EUSS (“Appendix EU”). The Appellant argued that she satisfied paragraph EU11(3) of Appendix EU. The Respondent also refused the Appellant pre-settled status under EU14. It does not appear from the skeleton argument submitted to the First-tier Tribunal that the Appellant relied on there being a breach of the agreement between the EU and the UK on the UK’s withdrawal from the EU (“the Withdrawal Agreement”) but since a point is made in the grounds of appeal challenging the Decision relating to the Withdrawal Agreement, this is also something we will need to consider (albeit it cannot give rise to an error of law in the Decision if the point was not argued before Judge Farmer).
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Having set out the terms of EU11 and what she considered to be the relevant definition under Annex 1 of Appendix EU, Judge Farmer concluded that the Appellant could not meet those provisions and that therefore the Respondent’s decision was in accordance with Appendix EU. We will come to the Judge’s reasoning below.
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The Appellant appeals the Decision on the basis that the Judge has misinterpreted Appendix EU. The Appellant also argues that she is supported in her interpretation by the terms of the Withdrawal Agreement, in particular articles 9(a)(ii) and 15(1) of that agreement.
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Permission to appeal was granted by First-tier Tribunal Judge Athwal on 26 September 2023 on the basis that the grounds are arguable. The Respondent filed a rule 24 response on 10 October 2023 seeking to uphold the Decision.
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We had before us an indexed bundle of relevant documents submitted by the Appellant. We do not need to refer to those documents as the issue before us is one of interpretation of Appendix EU and the Withdrawal Agreement.
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The matter comes before us to determine whether the Decision contains an error of law. If we conclude that it does, we must then consider whether to set aside the Decision. If we set aside the Decision, we must then either re-make the decision or remit the appeal to the First-tier Tribunal to do so.
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It was agreed during the hearing before us, that there is but one answer to this appeal. If the Appellant is right in her interpretation, she is entitled to settled status. If she is wrong, then she will lose her appeal.
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Whilst we accepted that what we say about the error of law is therefore also likely to be determinative of the appeal, we agreed with the representatives that, if we considered that the Appellant might be correct in her analysis, then we would list the appeal for a resumed hearing before a panel of this Tribunal with the opportunity for both parties to make written and oral submissions. This was because some of the arguments put forward by Mr Al-Rashid went beyond the grounds of appeal in their analysis and it would not be fair for the Respondent to have to answer them “on the hoof”.
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However, we also indicated that if we were unpersuaded by those further arguments, we would find there to be no error of law in the Decision. Even if what we say below strays beyond the reasons given by Judge Farmer due to the development of arguments not made to her, those further arguments could not give rise to an error of law. However, in accordance with what we say above, if the Appellant’s interpretation is wrong, she could not succeed in her appeal. It is therefore appropriate that we give full reasons in relation to the further arguments raised.
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Having heard submissions from Mr Al-Rashid and brief submissions from Ms McKenzie, we indicated that we would reserve our decision and provide that in writing which we now turn to do.
DISCUSSION
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In order to inform our consideration of the Judge’s reasoning and the arguments put forward by Mr Al-Rashid, it is necessary to set out the provisions of Appendix EU on which Judge Farmer relied. Those are set out at [7] of the Decision and are as follows:
“Persons eligible for indefinite leave to enter or remain as a relevant EEA citizen or their family member, or as a person with a derivative right to reside or with a Zambrano right to reside
EU11. The applicant meets the eligibility requirements for indefinite leave to enter or remain as a relevant EEA citizen or their family member (or as a person with a derivative right to reside or a person with a Zambrano right to reside) where the Secretary of State is satisfied, including (where applicable) by the required evidence of family relationship, that, at the date of application, one of conditions 1 to 7 set out in the following table is met:
…
3. (a) The applicant:
(i) is a relevant EEA citizen; or
(ii) is (or, as the case may be, for the relevant period was) a family member of a relevant EEA citizen; or
(iii) is (or, as the case may be, for the relevant period was) a family member who has retained the right of residence by virtue of a relationship with a relevant EEA citizen; or
(iv) is a person with a derivative right to reside; or
(v) is a person with a Zambrano right to reside; or
(vi) is a person who had a derivative or Zambrano right to reside; and
(b) The applicant has completed a continuous qualifying period of five years in any (or any combination) of those categories; and
(c) Since then no supervening event has occurred in respect of the applicant
Annex 1:
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person who had a derivative or Zambrano right to reside
a person who, before the specified date, was a person with a derivative right to reside or a person with a Zambrano right to reside, immediately before they became (whether before or after the specified date):
(a) a relevant EEA citizen; or
(b) a family member of a relevant EEA citizen; or
(c) a person with a derivative right to reside; or
(d) a person with a Zambrano right to reside; or
(e) a family member of a qualifying British citizen,
and who has remained or (as the case may be) remained in any (or any combination) of those categories (including where they subsequently became a family member who has retained the right of residence by virtue of a relationship with a relevant EEA citizen or with a qualifying British citizen)
in addition, where a person relies on meeting this definition, the continuous qualifying period in which they rely on doing so must have been continuing at 2300 GMT on 31 December 2020
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