Monthly Archives: January 2022

Akinsanya litigation: Court of Appeals decides Zambrano Primary Carers of British citizen children with limited leave are covered by the EEA Regulations

Posted on by Standard Reply

“The definition of “person with a Zambrano right to reside” is elaborate to the point of impenetrability…..”  said the Court in Akinsanya v Secretary of State for the Home Department [2022] EWCA Civ 37 (25 January 2022).

It is difficult to disagree. The definition as drafted,  is to be read slowly and several times over until eventually its effect is fully grasped.

In Akinsanya 2, the Secretary of State contended before the Court of Appeal that the only issue before Mostyn J in Akinsanya, R (On the Application Of) v Secretary of State for the Home Department (Rev 3) [2021] EWHC 1535 (Admin) (09 June 2021), Akinsanya 1, was whether the Secretary of State had, in formulating the Annex 1 definition in Appendix EU, “erred … in her understanding of (a) the Zambrano jurisprudence and (b) regulation 16 of the 2016 Regulations” – ie, by proceeding on the basis that the Zambrano right did not arise in circumstances where the carer in question had any form of leave to enter or remain.

The Court of Appeal upheld Mostyn J’s decision by reference to the formulation of Regulation 16 of the 2016 Regulations, with the result that the Secretary of State lost her appeal.

Summary Background

The Claimant, a Nigerian national is a sole carer of a British citizen child born on 26 October 2011. She was granted a “derivative residence card” under the Immigration (European Economic Area) Regulations 2006, as amended, on 15 September 2014 on the basis that she was her son’s “Zambrano carer”.

On 4 April 2019 the Claimant applied for limited leave to remain under Appendix FM to the Immigration Rules, on the basis that she was the sole responsible parent of a British citizen child living in the UK (by reference to R-LTRPT, read with paragraph E-LTRPT.2 of Appendix FM). On 12 July 2019 the application was granted, for a thirty-month period expiring on 11 January 2022.

The reason why the Claimant chose to apply for leave to remain, rather than continuing to rely on her derivative residence right as a Zambrano carer, was that as a result of illness she was unable to work and needed to claim benefits. As a person with a derivative residence right she had only a limited entitlement to social assistance whereas once she had leave to remain she became entitled to claim mainstream benefits (the Secretary of State not having imposed a “no recourse to public funds” condition).

On 19 January 2020 the Claimant applied to the Secretary of State for indefinite leave to remain (“ILR”) under the EU Settlement Scheme (“the EUSS”). By letter from the Home Office dated 29 September 2020 her application was refused.

On 31 December 2020 the Claimant issued judicial review proceedings challenging the decision of 29 September 2020. On 9 June 2021 Mostyn J upheld her challenge.

The Secretary of State appealed to the Court of Appeal.

Appreciating the applicable law:

With reference to Appendix EU, the Claimant in Akinsanya, contended that she had at the material date “a Zambrano right to reside” and accordingly that she had completed the five-years continuous qualifying period.

In Akinsanya 2, the Court of Appeal confirmed that the issue in the appeal derived ultimately from the decision of the Grand Chamber of the Court of Justice of the European Union (“the CJEU”) in Ruiz Zambrano v Office National de l’Emploi, case no. C34/09, [2012] QB 265, which was promulgated on 8 March 2011.

Having referred to reasoning of the Court in Zambrano, the Court of Appeal clarified: “ It will be seen that the essence of that reasoning, as it applied in the actual case, is that unless the father enjoyed the right to live in Belgium, and the right to work, he would have to leave the EU, and the children would in practice have to go with him, and that that would deprive them of the substance of their rights as EU citizens under articles 20 and 21. Mr Blundell referred us to the judgment of Lady Arden (with which the other members of the Court agreed) in Patel v Secretary of State for the Home Department [2019] UKSC 59, [2020] 1 WLR 228. At para. 22 she said: “What lies at the heart of the Zambrano jurisprudence is the requirement that the Union citizen would be compelled to leave Union territory if the TCN [third country national], with whom the Union citizen has a relationship of dependency, is removed.”He also referred us to para. 30, where Lady Arden observed that “[t]he test of compulsion is … a practical test to be applied to the actual facts and not to a theoretical set of facts”.{10}

The Court in Akinsanya 2, referred to circumstances where the removal of the third country national parent would in practice mean that the EU citizen child has to leave the EU as “the Zambrano circumstances”. As regards the rights which in those circumstances may not be refused to the parent (i.e. the right to reside and to work and, where necessary, to receive social assistance), these were referred to as “Zambrano rights”.

Annex 1 to Appendix EU contains the definition of “person with a Zambrano right to reside”. The EEA Regulations referred to in the Annex 1 definition are the Immigration (European Economic Area) Regulations 2016. As noted by the Court, the Regulations have ceased to have effect, save for certain transitional purposes, since 31 December 2020 (i.e. the end of the Brexit transition period).

Regulation 16(1) of the Regulations states a person has a derivative right to reside during any period in which the person (a) is not an exempt person; and (b)  satisfies each of the criteria in one or more of paragraphs (2) to (6).

**Limb (b) of the definition of the Annex 1 definition is that that applicant should be “without leave to enter or remain in the UK”; but the Claimant in Akinsanya had had such leave since 12 October 2019.

Regulation 16(5) deals with third country national carers of British citizen children, i.e. Zambrano carers. It states the criteria in this paragraph are that —

  • the person is the primary carer of a British citizen (‘BC’);
  • BC is residing in the United Kingdom; and
  • BC would be unable to reside in the United Kingdom or in another EEA State if the person left the United Kingdom for an indefinite period.

Regulation 7 (1) (a)) provides an “exempt person” is a person:

  • who has a right to reside under another provision of the EEA Regulations;
  • who has the right of abode under section 2 of the 1971 Act;
  • to whom section 8 of the 1971 Act, or an order made under subsection (2) of that section, applies; or
  • who has indefinite leave to enter or remain in the United Kingdom (but see paragraph (7A)). In Akinsanya, the Court pointed that it should be noted that the persons are those with indefiniteleave to remain: it does not cover those with only limited leave.

Persons with a derivative right to reside under Regulation 16 are entitled by Regulation 20 to be issued with a “derivative residence card” either for five years or for such lesser period as the Secretary of State may prescribe.

Mostyn J’s June 2021 Judgement in Akinsanya 1

Mostyn J’s judgement was considered in a previous blog post here: Primary Carers of British citizens: The Akinsanya litigation and persons with a Zambrano right to reside – UK Immigration Justice Watch Blog

In Akinsanya 2, the Court noted that Mostyn J held that the Secretary of State had erred in her understanding both of the Zambrano jurisprudence and of Regulation 16.

At paragraph 36 of its judgment, the Court summarised Mostyn J’s conclusions:

“(1) He held that a Zambrano right in EU law was not extinguished by “the existence of a concurrent limited leave to remain”: see in particular para. 51 of his judgment.

(2) He further held that, even if the jurisprudence of the CJEU did not go that far, the domestic formulation of the Zambrano right in regulation 16 was quite clearly to the effect that the right conferred by paragraph (5) was only excluded where the carer enjoyed indefinite leave to remain, since paragraph (7) refers only to ILR: see in particular para. 70 of his judgment. He rejected an argument on behalf of the Secretary of State that the relevant provisions should be read down so as to confer rights that went no further than those accorded by EU law: see paras. 67-69.

On the same date he made an order quashing the decision of 29 September 2020 and two declarations. I need only set out the terms of the first, which read:

“The Secretary of State erred in law when providing, in Annex 1 to Appendix EU to the Statement of Changes to the Immigration Rules HC 395 as amended, that the definition of a ‘person with a Zambrano right to reside’ includes paragraph (b) ‘a person …. without leave to enter or remain in the UK, unless this was granted under this Appendix’.”

Secretary of State’s arguments:

  • It was submitted on behalf of the Secretary of State that the explicit rationale for the CJEU’s “creation” of Zambrano rights for third country nationals was to prevent their EU citizen children being in practice compelled to leave the EU and so deprived of their rights under Articles 20 and 21 of the TFEU.
  • That being so, those rights were properly to be regarded as arising only when the third country national parent did not otherwise enjoy a right to reside in the member state in question: if they did, then there was no risk of the children being compelled to leave the EU. It followed that from the moment that she was granted leave to remain, albeit limited, the Claimant in Akinsanya enjoyed no Zambrano right to reside.
  • It was contended that that analysis was supported by two decisions of the CJEU subsequent to Zambrano, ie Iida v Stadt UlmC-40/11, [2013] Fam 121, promulgated on 8 November 2012 and NA v Secretary of State for the Home Department C-115/15, [2017] QB 109.

Claimant’s arguments:

  • On behalf of the Claimant, it was argued that the existence of Zambrano rights is in principle independent of whether the parent enjoys an equivalent right as a matter of domestic law. The rights in question derive directly from articles 20 and 21 of the TFEU and do not require domestic implementation. It is true that if the substance of the relevant right – whether a right to reside or to work or to receive social assistance where necessary – is accorded by domestic law they will not need to invoke their Zambrano right; but that is not the same as saying that it is in those circumstances “extinguished”, or that it only exists when required. It is wrong in principle to treat an obligation as ceasing to exist as long as it is discharged.
  • Reliance was placed upon the reasoning of the Court in Sanneh v Secretary of State for Work and Pensions[2015] EWCA Civ 49, [2016] QB 455( paragraphs 166 to 169 referred to).
  • It was submitted that it is clear from Sanneh, most obviously from the final sentence of paragraph 168 of Elias LJ’s judgment, that the Zambrano right to reside arises from the point when the Zambrano circumstances first arise and subsists thereafter so long as they obtain.

Court of Appeal decides the CJEU does not regard Zambrano rights as arising as long as domestic law accords to Zambrano carers the necessary rights:

In response to the Claimant’s position that a right arising under the EU Treaty must exist independently of any domestic rights which purport to reproduce it or which are to substantially the same effect, the Court had this to say between paragraphs 54 to 57 of its judgement:

  • That position did not correspond to the analysis of the nature of Zambrano rights adopted by the CJEU. It is clear from Iida and NA that the Court does not regard Zambrano rights as arising as long as domestic law accords to Zambrano carers the necessary right to reside (or to work or to receive social assistance).
  • As the Court recognises ( paragraph 72 of the judgment in Iida) the right of third country nationals to reside in a member state is normally a matter for that state. Zambrano rights are for that reason exceptional. They are not typical Treaty rights, since they arise only indirectly and contingently in order to prevent a situation where EU citizen dependants are compelled to leave the EU. That being so, it makes sense to treat them as arising only in circumstances where the carer has no domestic (or other EU) right to reside (or to work, or to receive necessary social assistance)
  • The approach was not inconsistent with Sanneh. In that case, unlike the claimant in Akinsanya, the claimant had no right to reside under domestic law, and the issue was whether her Zambrano right to reside arose prior to the point of imminent removal. Elias LJ ‘s conclusion in Sanneh was, in effect, that the Zambrano circumstances arose as soon as the claimant had no leave to remain and was thus (as a matter of domestic law) under a duty to leave and liable to removal ( in particular paragraph 169 of Sanneh). The Court was not considering a case where the claimant enjoyed leave to remain as a matter of domestic law. In such a case, on the CJEU’s analysis, the Zambrano circumstances do not obtain, and Elias LJ’s observations had no purchase.

Although the Court in Akinsanya 2 indicated that the Secretary of State’s submissions were preferred it was considered however, that did not answer the question whether the Secretary of State misdirected herself in framing the definition in the EUSS. It depended upon what she was intending to achieve.

The Court of Appeal stated that the fact remained that if at any time a Zambrano carer loses their right to reside as a matter of domestic law, the Zambrano right will arise (assuming that the effect of the carer leaving will be that the EU citizen child also has to do so): Zambrano is always waiting in the wings, and so long as the Zambrano circumstances obtain the carer can never be put in a position where their residence is unlawful.

Court of Appeal decides that the language of domestic EEA Regulation 16 (7) (c) (iv) is simply too clear to allow it to be construed as covering persons with limited leave to remain:

In relation to the construction of Regulation 16 of the EEA Regulations, the Court in Akinsanya 2, noted that the issue was whether the Secretary of State in framing the relevant definition in Annex 1 of the EUSS misunderstood the effect of Regulation 16 of the EEA Regulations, which was intended to give effect to the Zambrano jurisprudence in UK law.

The Claimant’s case was that limb (b) of the Annex 1 definition is inconsistent with the definition of “exempt person” in Regulation 16 (7). Head (iv) of that definition covers a person “who has indefinite leave to enter or remain in the United Kingdom”; but it says nothing about persons with only limited leave. The Claimant contended that persons with limited leave are accordingly not exempt persons and by virtue of paragraph (1) (b) are entitled to a derivative right to reside, alongside their leave to remain, so long as they satisfy the criteria under one of paragraphs (2)-(6).

On behalf of the Secretary of State, it was accepted that the natural meaning of Regulation 16 was indeed that a person with limited leave to remain is entitled to a derivative right to reside, but it was submitted (a) that such a reading would mean that the Secretary of State in making the Regulations had accorded rights to carers of EU citizen children that go beyond their entitlement in EU law; and (b) that it followed that Regulation 16 should be construed, despite the natural reading, in such a way as to avoid that result and to limit the rights conferred under it to carers who did not otherwise have leave to remain.

The Secretary of State argued that there was a presumption against “gold-plating” – that is “going beyond the minimum necessary to comply with a Directive”.

The Court reasoned as follows, including their conclusions:

  • It was observed by the Court that at the time that the Amendment Regulations were made, paragraph 10 of the Guidance issued to UK Border Agency staff at the time of the 2012 amendments read: “Where someone has limited leave (and so is not listed as one of the exempt categories above) and can demonstrate they meet all other requirements of Regulation 15A, then they can acquire a derivative right of residence.”
  • It did not accept that there is any general presumption against “gold-plating”.
  • Although the Court was prepared to accept that in making the Amendment Regulations, and thus also the relevant parts of Regulation 16, it was likely that the Secretary of State intended, in a broad sense, to do no more than implement the requirements of the Zambrano decision, matters were however not as simple as that.
  • That required the Secretary of State to take a view as to what those requirements actually amounted to. It may well be that her initial view of the effect of Zambrano was in accordance with the Claimant’s submissions before the Court: Iida and NA had not been decided when the Amendment Regulations were made.
  • A broad intention not to gold-plate does not exclude a recognition that the practical business of adapting an EU right into a domestic scheme may mean going rather beyond the minimum requirements of the right at the margins. The Court stated that may be that the Secretary of State took the view that allowing a Zambrano right to reside to those who already had limited leave to remain was more straightforward than having to consider whether particular forms of leave to remain, and in particular the conditions about working to which they might be subject, were fully consistent with Zambrano rights.
  • Whatever the contextual considerations, the language of Regulation 16 (7) (c) (iv) is simply too clear to allow it to be construed as covering persons with limited leave to remain.
  • The explicit reference to persons with indefinite leave to remain necessarily precludes its application to persons with limited leave. As Mostyn J stated at paragraph 72 of his judgment, the Secretary of State was seeking to imply words into the provision which completely change its scope and meaning.
  • The passage from the Home Office guidance quoted above establishes beyond doubt that this was not a case of drafting error: the Secretary of State intended persons with limited leave to be entitled to a derivative right to reside, even if that intention may have been based on an erroneous view of what Zambrano

The Court of Appeal concluded that its rejection of ground 2 meant that it would in substance dismiss the appeal, despite the conclusion on ground 1.

It was held that Mostyn J’s order quashing the Secretary of State’s decision of 29 September 2020 stood.

Commentary

What the position can and should be following Akinsanya:

The Claimant failed in seeking to run the argument that had succeeded initially in the lower courts: what saved the day was the argument related to the domestic formulation of the Zambrano right in the 2016 EEA Regulations.

At paragraph 51 of Akinsanya 1, Mostyn J concluded:

“My conclusion is that nothing decided in the CJEU or domestically since the decision in Zambrano supports the theory that the existence of a concurrent limited leave to remain of itself automatically extinguishes a claim for Zambrano residence. On the contrary, it is clear to me from the facts of Zambrano itself that the CJEU tacitly acknowledged that a limited national leave to remain, and a wider Zambrano right to remain, in many cases can and will coexist”.

The Court of Appeal in Akinsanya 2 however did not agree and as per paragraph 54 and 55 of its judgement, considered that:

  • the CJEU does not regard Zambrano rights as arising as long as domestic law accords to Zambrano carers the necessary right to reside (or to work or to receive social assistance.
  • Zambrano rights are not typical Treaty rights: it makes sense to treat them as arising only in circumstances where the carer has no domestic (or other EU) right to reside (or to work, or to receive necessary social assistance).

Following Akinsanya and the basis upon which she maintained her “win”, the correct legal position can and should be that both those with leave to remain and those without, by reference to the EEA Regulation, also fall within the definition of “person with a Zambrano right to reside” for the purpose of applications under the EUSS Scheme.

What the Secretary of State should now be doing is to amend Appendix EU and do so lawfully.

What of the Secretary of State’s Guidance?

It is apparent from the beginning of the judgement in Akinsanya 1 that Mostyn J noted:

“2.Essentially I have to decide whether the Secretary of State (then the Rt. Hon. Sajid Javid MP), in promulgating Appendix EU to the Immigration Rules on 7 March 2019, erred in law in his understanding of the scope of:

  1. i) The Zambrano jurisprudence; and
  2. ii) Regulation 16 of the Immigration (European Economic Area) Regulations 2016 (SI 2016/1052) (“Regulation 16”).

3.If the answer is yes then it is agreed that the following relief should be awarded:

  1. i) An order quashing the decision of 29 September 2020;
  2. ii) A declaration that the Secretary of State erred in law when framing in Annex 1 to Appendix EU to the Immigration Rules the definition of a “person with a Zambrano right to reside” under paragraph (b) as “a person …. without leave to enter or remain in the UK, unless this was granted under this Appendix” (“para (b)”)*;

iii) A declaration that the Guidance issued by the Secretary of State “Free Movement Rights: derivative rights of residence” (version 5.0 of 2 May 2019) and “EU Settlement Scheme: person with a Zambrano right to reside” (version 4.0 of 27 April 2021) are legally erroneous insofar as they state that a Zambrano right to reside is not available to a person if he/she has limited leave to enter or remain in the UK; …….”

By reference to Mostyn‘s initial Order of 9 June 2021, a declaration was also made that:

“2. The Guidance issued by the Secretary of State (1) “Free Movement Rights: derivative rights of residence” (version 5.0 of 2 May 2019) and (2) “EU Settlement Scheme: person with a Zambrano right to reside” (version 4.0 of 27 April 2021) is legally erroneous insofar as it states that a person who has limited leave to enter or remain in the UK cannot also have a derivative right to reside by virtue of regulation 16(1) of the Immigration (European Economic Area) Regulations 2016, by satisfying the criteria in regulation 16(5) of those Regulations”.

The referred to Guidance is still in publication and unamended.

Akinsanya 2 does not consider issues related to the legally erroneous nature of the Secretary of State’s Guidance.  The answer however seems to lie in the Court of Appeal making it clear: “As I understand it, the reconsideration referred to in the order of 17 June 2021 has not been undertaken pending this appeal. It will no doubt now proceed. Nothing in this judgment should be taken as expressing any view about how the Secretary of State can or should amend the terms of the EUSS, as to which we heard no argument”. {70}

What the Court of Appeal was prepared to do as indicated by paragraph 69 of its judgement, was to modify by agreement with Counsel, the terms of the declaration of Mostyn J’s Order as follows:

“The Secretary of State erred in law in her understanding of regulation 16 of the Immigration (European Economic Area) Regulations 2016 when providing, in Annex 1 to Appendix EU to the Statement of Changes to the Immigration Rules HC 395 as amended, that the definition of a ‘person with a Zambrano right to reside’ includes paragraph (b) ‘a person …. without leave to enter or remain in the UK, unless this was granted under this Appendix’.”

The Order of 17 June 2021 in Akinsanya 1 includes amongst other issues, the following:

“5. This order and the order of 9 June 2021 shall be appended to the judgment dated 9 June 2021 which shall be republished on the Bailii website”.

It is therefore expected that the Secretary of State will have regard to the expressed terms of the Orders and will, amongst other issues, proceed to issue new or amended Guidance, alongside the necessary amendments to Appendix EU.

 

How a previous long term overstayer bypassed the 10year route to settlement and obtained ILR under the 10year lawful residence Rule

Posted on by Standard Reply

It took some gumption for ‘PG’ to submit a SET(LR) application in April 2021 requesting that she be granted indefinite leave to remain in the UK.

PG had only been granted limited leave to remain for the very first time in June 2019, following 18years residence in the UK as an overstayer.

I say gumption as a quick glance at her previous immigration history might have made another applicant balk at the thought of seeking to approach the Home Office so soon after a grant of long-awaited leave.

This is what the Home Office knew regarding PG prior to the settlement application of April 2021:

  • She had previously sought entry to the United Kingdom in 1995 as a visitor however was refused entry and removed to Zimbabwe. At that time Zimbabwean nationals could simply board a plane headed for the UK and request entry as a visitor at the airport.
  • She made two further separate attempts to enter the UK in 1999 but was denied entry each time at the airport.
  • She re-entered the UK in February 2001 using a counterfeit passport in another’s name.
  • She next came to the attention of the UK authorities in late 2003 when she attempted to obtain a British passport by claiming to have been born in the UK. It was found that she had submitted a forged British birth certificate.
  • She was charged, convicted and sentenced to 3months imprisonment for using a false instrument in 2004.
  • At least 7 applications based on private and family life, including an asylum claim, two failed appeals and an unsuccessful judicial review claim were submitted between 2004 and 2018.
  • Having been given a custodial sentence of 3months, following release, from September 2004 she was granted Temporary Admission(TA) and with reporting being one of the conditions of TA, she reported in compliance until 2012, ie for 8years.
  • The last two reporting events in 2012 were cancelled by the Home Office. Thereafter, the Home Office did not ask PG to report (as evident for the Subject Access Disclosure obtained in advance of submission of the settlement application).
  • PG therefore did not report for 7years as part of conditions of Temporary Admission right up till grant of leave in June 2019.

Why did PG seek to submit an ILR application?

PG(along with several others) contacted me following a short blog post of 12 February 2021 which raised issues that appeared to catch her circumstances:

Currently on the 10year route to settlement but already with prior significant residence in the UK? You may be eligible now to apply for indefinite leave to remain – UK Immigration Justice Watch Blog

The SET(LR) application under the long residence Rules

PG placed reliance upon Paragraph 276B of the Immigration Rules.

It was submitted on her behalf that she fulfilled all the requirements for indefinite leave to remain following a period of 10 years continuous lawful residence in the UK.

It was argued that for the purposes of the long residence Rule, she had remained lawfully in the  UK compliant with her conditions of  Temporary Admission from 2004 and then was immediately and automatically from a specific point in time, lawfully in the UK on Immigration Bail until she was granted limited leave to remain in June 2019.

It was also submitted that there were no reasons why it would be undesirable on public interest grounds to grant PG indefinite leave to remain.

PG had initially instructed me in 2019 and obtained her first ever grant of limited leave on 26 June 2019 as an unmarried Partner on the 10year route to settlement. The very same arguments which I set out on PG’s behalf in representations of 2019 and her statement of the same period as regards why she satisfied the suitability criteria, were also relevant for consideration as balancing factors for the purposes of the public interest considerations.

It was put forward that PG’s application did not fall for refusal under the general grounds for refusal.  Where it was concluded they did apply in relation to PG’s past conduct, submissions had been made within the Representations.

27page Representations were submitted in support of PG’s settlement application.

Extensive reference was made to the following:

  • Disclosure from the Subject Access Request Unit
  • The Immigration Rules
  • Long Residence Guidance
  • Relevant paragraphs of Schedule 2 to the Immigration Act 1971
  • Section 11(1) of the Immigration Act 1971 Act
  • Bail Guidance
  • Schedule 10 to the Immigration Act 2016

Hoque & Ors v The Secretary of State for the Home Department (Rev 1) [2020] EWCA Civ 1357 (22 October 2020), was referred to in passing but it was clear arguments could be sustained on PG’s behalf without reliance upon Hoque.

What was argued in the alternative?

Whilst it was maintained that PG fulfilled the requirements of indefinite leave to remain on the basis of the 10year Rule, reliance was placed on the following Immigration Rule in the alternative:

“276A04. Where a person who has made an application for indefinite leave to remain under this Part does not meet the requirements for indefinite leave to remain but falls to be granted limited leave to remain under this Part on the basis of long residence or private life in the UK, or outside the rules on Article 8 grounds:

(a) The Secretary of State will treat that application for indefinite leave to remain as an application for limited leave to remain;

(b) The Secretary of State will notify the applicant in writing of any requirement to pay an immigration health charge under the Immigration (Health Charge) Order 2015; and

(c) If there is such a requirement and that requirement is not met, the application for limited leave to remain will be invalid and the Secretary of State will not refund any application fee paid in respect of the application for indefinite leave to remain”.

Accordingly, PG relied upon the following:

  • Her family life as a Partner under Appendix FM but with a request to switch into the 5year route to settlement as she fulfilled the relevant requirements and had provided adequate documentation
  • She contended in the alternative that at the date of the application in April 2021, she had resided in the UK for at least 20years continuously and placed reliance upon the Immigration Rules, Paragraph 276ADE(1), as a basis of claim.

What was the outcome of PG’s ILR application?

It took nearly 9months for PG’s ILR application to be decided.

During consideration of the application, a complaint was forward to the Complaints Unit on PG’s behalf raising issue as regards the delay in making a decision, more so as her limited leave to remain was due to “expire” on 18 December 2021 without a decision being made on the April 2021 ILR application.

The Complaints Unit responded indicating PG only had a limited leave FLR(FP application outstanding and such applications were not subject to a time scale for consideration.

As matters stood, PG could not possibly submit any other application – both her applications for settlement and then limited leave in the alternative were contained in the application submitted in Aril 2022. She was however covered in the meantime by Section3C leave.

The complaint was escalated to the Complaints Review Unit in December 2021, stating amongst other matters:

“We request a review of the received response below. The response appears divorced from the reality of the facts of this case. Our client did not submit an FLR (FP) application. As per the attached online Set (LR)application form, she submitted an application for indefinite leave to remain on 23 April 2021.  That is the application that has taken the relevant department 7months to decide…….  In any event, an ILR application was submitted on our client’s behalf having regard to the Immigration Rules. It is incumbent upon the Secretary of State that proper procedure be adhered to and an actual decision be made on that application and communicate a decision on the ILR application. There has been an unreasonable delay in the consideration of the ILR application”.

A further chaser email was forwarded to the Complaints Review Unit in January 2022.

Without further ado, on 17 January 2022, PG’s application for indefinite leave to remain under the 10year lawful residence Rule was granted by the Secretary of State.

 

 

 

Paragraph 297 Sole responsibility test & Indefinite leave to enter: Appellant child succeeds before the Tribunal despite a previous failed appeal

Posted on by Standard 2

Applications relying upon Paragraph 297 of the Immigration Rules face an uphill battle at appeal if refused by an Entry Clearance Officer.

A short refusal decision may at first glance seem fairly capable of being addressed at appeal, however it usually becomes necessary to anticipate well in advance of the appeal hearing what else related to Paragraph 297, for example a sole responsibility contention, might be disproportionality and dramatically thrown into issue during cross examination at appeal and in oral submissions by the Presenting Officer.

Conversely, what may seem to be a hopeless case, even following previous failure before a Tribunal Judge, might upon a second view, give rise to a subsequent successful appeal for an Appellant, where advance effective preparation is the focus from application stage through to appeal.  A recent successful second appeal confirms this.

Relevant Immigration Rule

Part 8 of the Immigration Rules provides at Paragraph 297 of the Immigration Rules:

“Requirements for indefinite leave to enter the United Kingdom as the child of a parent, parents or a relative present and settled or being admitted for settlement in the United Kingdom

(i) is seeking leave to enter to accompany or join a parent, parents or a relative in one of the following circumstances:

(a) both parents are present and settled in the United Kingdom; or

(b) both parents are being admitted on the same occasion for settlement; or

(c) one parent is present and settled in the United Kingdom and the other is being admitted on the same occasion for settlement; or

(d) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and the other parent is dead; or

(e) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and has had sole responsibility for the child’s upbringing; or

(f) one parent or a relative is present and settled in the United Kingdom or being admitted on the same occasion for settlement and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child’s care; and

(ii) is under the age of 18; and

(iii) is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and

(iv) can, and will, be accommodated adequately by the parent, parents or relative the child is seeking to join without recourse to public funds in accommodation which the parent, parents or relative the child is seeking to join, own or occupy exclusively; and

(v) can, and will, be maintained adequately by the parent, parents, or relative the child is seeking to join, without recourse to public funds; and

(vi) holds a valid United Kingdom entry clearance for entry in this capacity; and

(vii) does not fall for refusal under the general grounds for refusal”.

Failure in previous application and appeal

Working with previous legal representatives, in 2018 the Appellant (EG), submitted an application for indefinite leave to enter relying upon paragraph 297 of the Immigration Rules. His mother held limited leave to remain as a Partner and resided in the UK with EG’s British step- father.  EG’s mother had long separated from his biological father who had passed away in Nigeria in 2013.

As EG’s biological father was deceased, it was put forward having regard to the definition of “parent” in Paragraph 6 of the Immigration Rules, that EG’s stepfather was his parent:

“Parent” includes:

(a) the stepfather of a child whose father is dead, and reference to stepfather includes a relationship arising through civil partnership…………..”

The application for entry clearance was refused and was dismissed on appeal in 2019 as the Tribunal Judge found that in relation to EG:

  • his biological father was said to have died in 2013, however his death was not registered until 5years later
  • his biological father’s death certificate erroneously recorded his age at the date of death
  • The Judge was satisfied that there was no reasonable explanation for the late registration of the birth or the discrepancy in the father’s age and therefore was not satisfied that EG’s father was deceased.

The Judge concluded in 2019 that EG’s mother had no sole responsibility for him because he was not satisfied that the father was deceased and there was nothing more than bare assertions that she and/or his stepfather had continuing control and direction over EG’s life. Neither were there serious and compelling family or other considerations which made EG’s exclusion from the UK undesirable because of the lack of evidence as to his circumstances.

The second application of 2020 under Paragraph 297and the submitted documentary evidence

Despite being advised by previous legal representatives that there were no prospects of success in pursuing a permission application to the Upper Tribunal, his mother and step-father were adamant the Judge had got wrong his decision in 2019 on the matter of EG’s father’s death. Their position was that EG’s father was indeed deceased and they had sole responsibility of EG.

Having instructed me in mid-2020, months after exhaustion of appeal rights and a few days before he turned 18years of age, a new paragraph 297 application was submitted on behalf of EG. It was maintained that his stepfather met the definition of a parent under paragraph 6 of the Immigration Rules.

In relation to documentary evidence in support of the second application, this included the following:

  • The very same death certificate that the Tribunal refused to place weight upon in 2019
  • The documentary evidence previously submitted in the 2019 appeal, such as documents from the Nigerian authorities confirming the death as well as from the hospital where EG’s father had passed away. The evidence from the authorities had had no weight placed upon it in 2019 as the issues raised by reference to the death certificate was considered in effect by the Judge to have tainted the rest of the evidence
  • Joint detailed statement from EG’s mother and his stepfather
  • Statement from EG’s maternal aunt who he had been living with since 2013 after his mother came to the UK.
  • Four statements, including from his paternal uncle and aunt in Nigeria who confirmed that EG’s mother had had sole responsibility for more than a decade following his parents divorce; provided explanations as to the errors made upon registering EG’s father’s death including the reasons for the delay in registering the death
  • Evidence of contact between the Appellant and his mother and stepfather
  • Money remittances running from 2015 for the Appellant’s support from his parents in the UK to Nigeria
  • Evidence of visits to Nigeria by his mother and stepfather
  • Evidence regarding his parent’s tenancy agreement in the UK and the landlord’s written consent that EG could on arrival reside in the UK with his parents at the residence
  • Bank statements, payslips and letters from the Employers going towards his parents employment in the UK
  • DNA reports in relation to the Appellant’s relationship with his mother- no weight had previously been placed upon his birth certificate as his birth had been registered late

The second refusal of entry clearance in 2020

Although EG had made his application under paragraph 297, the entry clearance officer considered the application under Appendix FM( Section EC-C)on the basis that, at the time he made his application, his mother had limited leave to remain in the UK as a partner. His application was refused in late 2020 because the entry clearance officer was not satisfied that the appellant’s father was deceased as claimed or that his mother had sole responsibility for his upbringing or that there were exceptional circumstances which would mean that the refusal would have unjustifiably harsh consequences for the appellant or his family.

EG appealed the refusal decision.

Caselaw relied upon at application and on appeal

TD (Paragraph 297(i)(e): sole responsibility) Yemen [2006] UKAIT 00049, provides:

“Sole responsibility” is a factual matter to be decided upon all the evidence. Where one parent is not involved in the child’s upbringing because he (or she) had abandoned or abdicated responsibility, the issue may arise between the remaining parent and others who have day-to-day care of the child abroad. The test is whether the parent has continuing control and direction over the child’s upbringing, including making all the important decisions in the child’s life. However, where both parents are involved in a child’s upbringing, it will be exceptional that one of them will have “sole responsibility”

……………….

Summary

i.Who has “responsibility” for a child’s upbringing and whether that responsibility is “sole” is a factual matter to be decided upon all the evidence.

ii.The term “responsibility” in the immigration rules should not to be understood as a theoretical or legal obligation but rather as a practical one which, in each case, looks to who in fact is exercising responsibility for the child. That responsibility may have been for a short duration in that the present arrangements may have begun quite recently.

iii. “Responsibility” for a child’s upbringing may be undertaken by individuals other than a child’s parents and may be shared between different individuals: which may particularly arise where the child remains in its own country whilst the only parent involved in its life travels to and lives in the UK.

iv.Wherever the parents are, if both parents are involved in the upbringing of the child, it will be exceptional that one of them will have sole responsibility.

v.If it is said that both are not involved in the child’s upbringing, one of the indicators for that will be that the other has abandoned or abdicated his responsibility. In such cases, it may well be justified to find that that parent no longer has responsibility for the child.

vi.However, the issue of sole responsibility is not just a matter between the parents. So even if there is only one parent involved in the child’s upbringing, that parent may not have sole responsibility.

vii. In the circumstances likely to arise, day-to-day responsibility (or decision-making) for the child’s welfare may necessarily be shared with others (such as relatives or friends) because of the geographical separation between the parent and child.

viii. That, however, does not prevent the parent having sole responsibility within the meaning of the Rules.

ix.The test is, not whether anyone else has day-to-day responsibility, but whether the parent has continuing control and direction of the child’s upbringing including making all the important decisions in the child’s life. If not, responsibility is shared and so not “sole”.

Submissions at appeal in October 2021

On the day of the hearing, following rigorous cross -examination of EG’s parents, in particular his mother, on behalf of the Entry Clearance Officer, the Presenting Office relied upon the refusal letter and submitted that Devaseelan ([2002] UKIAT 702 – STARRED Secretary of State for the Home Department v D (Tamil) [2002] UKIAT 00702 applied because:

  • the decision of the Tribunal Judge from October 2019 had not been challenged or not successfully challenged and so that was the Tribunal’s starting point
  • It had not accepted in 2019 that EG’s father was deceased and we were in the same situation now as had been in 2019  because exactly the same documents as had been produced  had been produced to the present  Tribunal
  • EG’s father was not deceased and his mother did not have and had not had sole responsibility for his upbringing
  • EG could not apply to come to the UK based upon his relationship with his stepfather because his stepfather was not his parent because his father was not deceased.
  • The mother could not be considered to be present and settled in the UK because she has limited leave to remain

I represented EG at his appeal hearing and submitted as follows, amongst other matters:

  • EG was seeking indefinite leave to enter under paragraph 297
  • He maintained that his father was deceased and his stepfather met the definition of a parent under paragraph 6 of the Immigration Rules
  • the assessment under Appendix FM was a misunderstanding of the relevant law relied upon and tainted the rest of the decision
  • the re-submitted application sought to address the deficiencies of the earlier application and on the balance of probabilities, it had been shown that EG’s biological father was deceased
  • the entry clearance officer did not engage with the statements submitted with the application which provided the reasonable explanations for the deficiencies as noted by the Judge in 2019
  • in so far as the error in the father’s age at death was concerned, EG’s mother was not aware of that error at the previous hearing and therefore EG’s maternal uncle and aunt had now produced statements explaining how that error came about. Those explanations were the reasonable explanations missing by the Tribunal Judge in 2019
  • there was no evidence submitted of the attempts stated in the refusal decision of 2020 made by the entry clearance officer to verify the death of the father
  • on the balance of probabilities, EG’s father was deceased and his mother has had and still has sole responsibility for him. The Tribunal Judge found against her in 2019 because he only had bare assertions before him that she had sole responsibility. Now there were other statements confirming that she does have direction and control over his life as per TD (Paragraph 297(i)(e): sole responsibility) Yemen [2006] UKAIT 00049

The appeal is allowed

In allowing the appeal, the Tribunal Judge provided detailed reasoned decision.

A finding that the Appellant’s father was deceased:

Before she went on to consider whether the parents in the UK had sole responsibility for EG’s upbringing, the Judge first considered whether his  father was deceased, making considerations and reaching conclusions as follows:

  • Tanveer Ahmed (2002 UKIAT 439*)- STARRED A v Secretary of State for the Home Department (Pakistan) [2002] UKIAT 00439 makes it clear that the onus is upon the appellant to show that the document which he submits can be relied upon and the Tribunal Judge had to consider, having looked at all the evidence in the round, that the death certificate could be one upon which she could place reliance
  • The evidence from EG’s paternal aunt and the nurse/friend who were with EG’s father at the time of his death in Nigeria were very persuasive but were countered by the concerns raised as to the authenticity of the information contained within the death certificate.
  • The Judge noted that the entry clearance officer’s refusal letter claimed to have made attempts to verify the death but had provided no evidence of those attempts. The Presenting Officer was not able to supply that information at the hearing and therefore, despite 2 sets of Tribunal directions making it quite clear that that information was required, the Judge relied upon MH (Respondent’s bundle: documents not provided) Pakistan [2010] UKUT 168 (IAC)and assumed that, because the entry clearance officer had not provided the evidence of the attempts made to verify the death, those attempts were no longer relied upon in the refusal and the Judge took no account of that evidence.
  • The Judge was persuaded by the cause of death certificate when taken with the statements provided and therefore found that EG’s father was indeed deceased.

A finding of sole responsibility for the Appellant’s upbringing:

  • The Judge stated she had considered the case of TD (Paragraph 297(i)(e): sole responsibility) Yemen [2006] UKAIT 00049 which sets out the guidelines for determining who has sole responsibility for a child’s upbringing. It was noted that TD makes it clear that mere financial support is not enough to satisfy the requirements for sole responsibility. The Judge had to be satisfied that it was the mother who was making all the major decisions in the appellant’s life and whether she had the continuing control and direction of his life.
  • EG’s mother had provided evidence of money transfer receipts from her and her husband to her sister who has cared for EG since his mother came to the UK 2013
  • EG’s mother had provided letters from his school stating that she and her husband had maintained contact with the school in relation to the appellant and introduced her sister to the school as the person caring for him whilst she was away.
  • The Judge in 2019 had noted that there were missing money transfer receipts within the papers supplied to him however at the appeal of October 2021, EG’s mother and her husband had managed to supply money transfer receipts going back to 2015. When she came to the UK 2013, she left a large sum of money with her sister, who was also working at the time, which was sufficient for the appellant’s needs.
  • The previous Tribunal decision of 2019 noted evidence of visits by his mother in 2018 and visits by the sponsor’s husband between 2014 and 2018. It also noted evidence of contact between 2018-19. Before the Judge in 2021 was further evidence of visits by the mother to the appellant as recently as July 2021 by way of passport stamps and photographs.
  • EG’s day-today care had been with his maternal aunt since his mother went to the UK in 2013. The fact of his day- to-day care was confirmed by his paternal aunt and uncle in their affidavits in which they stated that the appellant did not live with them and his father had no dealings with him.
  • The appellant’s late father’s landlord confirmed that EG’s father lived in the same compound as his siblings and did not live with the appellant in Nigeria
  • The Judge was satisfied that the mother had sole responsibility for the appellant’s upbringing since his birth or at least since her divorce from the appellant’s late father in 2004
  • The mother had made the major decisions in the appellant’s life and it was the mother who had the continuing control and direction of the appellant’s life

Conclusion

EG’s appeal was allowed in November 2021 and the requisite 28days having gone by without an application for permission to appeal from the entry clearance officer, EG has now received an email inviting him to present his passport to the entry clearance officer so that he may be granted entry clearance to the UK.