Court of Appeal and Reg 16(5)(c): Akinsanya does not address question whether the British Citizen dependant would be unable to reside in the UK

The correct interpretation of Regulation 16(5)(c) of the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”), was in issue in Velaj v Secretary of State for the Home Department [2022] EWCA Civ 767 (31 May 2022)

The two judgements of the Court of Appeal in Velaj and R(Akinsanya) v Secretary of State for the Home Department [2022] EWCA Civ 37[2022] 2 WLR 681 address different issues.

Relevantly, Regulation 16(5)(c), with which Velaj was concerned with, requires regard to be had to whether the relevant dependant British citizen would be unable to reside in the United Kingdom or in another EEA State if the primary carer left the United Kingdom for an indefinite period.

In Velaj, the Court was clear that in Akinsanya, that Appellant’s case on Regulation 16 was entirely focused upon Regulation 16(7). Regulation 16(7) defines an “exempt person” for the purposes of Regulation 16(1)(a). The categories of exempt persons include British Citizens, and persons with Indefinite Leave to Remain (“ILR”).   Akinsanya contended that persons with limited leave are not exempt persons and by virtue of paragraph 1(b) are entitled to a derivative right to reside, alongside their leave to remain.

Whether Ms Akinsanya could satisfy the criteria in Regulation 16(5) if she had leave to remain under some other provision of domestic law did not directly arise, and it was not something which the Court considered on her appeal.

As per paragraph 65 of Velaj:

“In Akinsanya this court was not required to consider, and did not consider, the requirements of Regulation 16(5) and how 16(5)(c) might be satisfied in practice by a primary carer who had limited leave to remain. The only issue it had to determine was whether Regulation 16(7) acted as a threshold barrier precluding someone like Ms Akinsanya from asserting that she had a derivative right of residence under Regulation 16(5) (or its predecessor) which had survived the subsequent grant to her of limited leave to remain”.

The Court in Valej therefore in essence sought to interpret the phrases contained in Regulation 16(5)(c):

  • “unable to reside in the United Kingdom”
  • “If the person left the United Kingdom for an indefinite period”

Summary Background:

The Appellant, a Kosovan national, subject to  deportation proceedings under s.32(5) of the UK Borders Act 2007, had his appeal allowed by the First Tier Tribunal(FTT) on the  basis his British son would be unable to reside in the UK or another EEA state if both his parents( the child’s British mother with whom the Appellant was in a relationship with) left the UK for an indefinite period and consequently the Appellant had a derivative right of residence under Regulation 16(5).

On the Secretary of State’s appeal, the Upper Tribunal set aside the decision of the FTT for a material error of law. Having concluded that the Appellant did not have a derivative right of residence, the Upper Tribunal re-made the decision on his appeal against the refusal of his human rights claim, accepted that Mrs Velaj would not go to live in Kosovo and found that it would not be reasonable to expect her to do so. The Upper Tribunal concluded that, although the effects of the Appellant’s deportation would be harsh on the family and indeed distressing, given the gravity of the Appellant’s offending it was nonetheless proportionate. The Appellant’s appeal was dismissed in the Upper Tribunal.

Provisions in issue:

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

Relevantly, Regulation 16(5) sets out that the criteria in the paragraph are that –

(a) the person is the primary carer of a British Citizen (“BC”)

(b) BC is residing in the United Kingdom; and

(c) 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

In Regulation 16(8), a person is the “primary carer” of another person (“AP”) if-

(a) the person is a direct relative or a legal guardian of AP and (b) either –

(i) the person has primary responsibility for AP’s care; or

(ii) shares equally the responsibility for AP’s care with one other person

Regulation 16(5) is concerned with the rights established by the decision of the Grand Chamber of the Court of Justice of the European Union (“CJEU”) in Ruiz Zambrano Ruiz Zambrano v Office national de l’emploi (Case C-34/09) [2012] QB 265, (“Zambrano”) as subsequently re-stated and developed in Chavez-Vilchez v Raad van Bestuur van de Sociale Verzekeringsbank (Case C-133/15) [2018] QB 103 (“Chavez-Vilchez“).

As per Regulation 16(9), “In paragraph … 5(c), if the role of primary carer is shared with another person in accordance with paragraph 8(b)(ii) the words “the person” are to be read as “both primary carers.”

Regulation 16(7) defines an “exempt person” for the purposes of Regulation 16(1)(a). The categories of exempt persons include British Citizens, and persons with Indefinite Leave to Remain (“ILR”).

Regulation 16(12) provides that a derivative right to reside will not arise where decisions are made to remove or exclude the primary carer on grounds of public policy, public security or public health or misuse of rights.

The 2016 Regulations ceased to have effect, save for certain transitional purposes, on 31 December 2020.

Relevant caselaw:

The principles arising in the following caselaw( CJEU and domestic), were considered by the Court in Velaj:

  • Ruiz Zambrano v Office national de l’emploi(Case C-34/09) [2012] QB 265, (“Zambrano”) :- Zambrano concerned a family living in Belgium: the parents were third country nationals of Colombia. Two of their children were Belgian citizens, and therefore citizens of the EU by virtue of Art 20 of the TFEU. The CJEU held that Art 20 of the TFEU precludes national measures which have the effect of depriving EU citizens of the genuine enjoyment of the substance of the rights conferred upon them by virtue of their status as EU citizens. Unless the father, who was the family breadwinner, enjoyed the right to live and work in Belgium, he and his wife would have to leave the EU, and the children would in practice have to leave with their parents, which would deprive them of the substance of their rights as EU citizens under Articles 20 and 21.
  • Chavez-Vilchez v Raad van Bestuur van de Sociale Verzekeringsbank (Case C-133/15) [2018] QB 103(“Chavez-Vilchez“):- Chavez-Vilchez concerned EU citizen children who were living with their third country national mothers in the Netherlands. The fathers, from whom the mothers were separated, were Dutch nationals, who provided the children with varying degrees of support. The Dutch authorities had held that the mothers were not entitled to Zambrano rights (including certain state benefits) unless they could show that the fathers were unable to care for the children. The CJEU held that this approach was too simplistic. The fact that the other parent, who was an EU citizen, was willing to assume sole responsibility for the primary care of the EU citizen child was a relevant factor, but it was not sufficient, in and of itself, to conclude that there was not such a degree of dependency between the child and the third country national parent that the child would be compelled to leave the EU if that parent were denied a right of residence. In deciding whether the child would be compelled to leave, account had to be taken of all the specific circumstances, including the age of the child, their physical and emotional development, their emotional ties to each parent and the risks to the child’s well-being that separation from the third country national parent would entail.
  • Patel v Secretary of State for the Home Department[2020] 1 WLR 228 :-  the Court described the reasoning underpinning the Zambrano jurisprudence at [22]: “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.” Lady Arden also observed at [30] that: “The test of compulsion is … a practical test to be applied to the actual facts and not to a theoretical set of facts.”
  • R(Akinsanya) v Secretary of State for the Home Department[2022] EWCA Civ 37[2022] 2 WLR 681, (“Akinsanya”) :- The claimant in Akinsanya was a national of Nigeria who was the sole primary carer for a British Citizen child. She was initially issued with a 5 year residence card as a Zambrano carer, but she was subsequently granted 30 months’ leave to remain in the UK under Appendix FM to the Immigration Rules. She then made an application for ILR under the EU Settlement Scheme (“EUSS”). She contended that she met the criteria for ILR set out in Appendix EU to the Immigration Rules because she was a person who had a Zambrano right to reside and she had completed the requisite continuous qualifying period of five years. The Secretary of State argued that Ms Akinsanya did not qualify under the EUSS because Annex 1 to Appendix EU defined “a person with a Zambrano right to reside” as excluding persons who had leave to enter or remain in the UK unless it had been granted under Appendix EU itself. It was contended on Mrs Akinsanya’s behalf that the definition in limb (b) of Annex 1 to Appendix EU did not properly reflect the Zambrano jurisprudence (Ground 1) and/or it did not properly reflect the language of Regulation 16 of the 2016 Regulations (Ground 2). It was argued that there was nothing in Regulation 16 which precluded someone with limited leave to enter or remain in the UK from acquiring (or keeping) derivative rights under that Regulation.As per Underhill LJ in Akinsanya at  paragraphs 33 to 36 the issue, was whether the Secretary of State had, in formulating the Annex 1 definition, erred in her understanding of (a) the Zambrano jurisprudence and (b) Regulation 16 of the EEA Regulations, by proceeding on the basis that a Zambrano right did not arise in circumstances where the carer had any form of leave to enter or remain. If the Secretary of State was wrong about that, it was agreed that the impugned decision would have to be quashed.The Court in Akinsanya found for the Secretary of State on the first issue. After analysing the Zambrano jurisprudence, including Iida v Stadt Ulm (Case C-40/11) [2011] Fam 121 and Secretary of State for the Home Department v A (Case C-115/15) [2017] QB 109, Underhill LJ concluded that as a matter of EU law, a Zambrano right is a right of last resort which does not arise if the third-country national carer otherwise enjoys a right under domestic law to reside in the member state in question.However, the conclusion that the definition in Annex 1 to Appendix EU did accurately reflect the Zambrano jurisprudence was not the end of the matter. As Underhill LJ explained at paragraph 57 in Akinsanya, it was unclear whether in framing that definition the Secretary of State intended to restrict rights under the EUSS to people whose rights to reside at the relevant dates directly depended on Zambrano, or whether her intention was to extend those rights to “all those carers whose removal would result in an EU citizen dependant having to leave the UK”. The Court could not, and was not required to, explore the Secretary of State’s purpose in framing the definition because it accepted Ms Akinsanya’s case on the construction of Regulation 16.

The issue in Velaj:

In Velaj, the appeal concerned the correct interpretation of Regulation 16(5)(c) of the 2016 Regulations which defines the circumstances in which a third country national who is the primary carer of a British Citizen has a derivative right to reside in the UK.

The issue which arose in the  appeal was whether a person deciding whether the requirements of Regulation 16(5)(c) are fulfilled must consider whether the British Citizen dependant would be unable to reside in the UK on the assumption that the primary carer (or both primary carers, as the case may be) will leave the UK for an indefinite period (irrespective of whether the assumption is correct); or whether the decision-maker must consider what the impact on the British Citizen would be if in fact the primary carer (or both primary carers) would leave the UK for an indefinite period.

The Court of Appeal considered that it was common ground that the Appellant would not qualify for a Zambrano right under the European jurisprudence because as a matter of fact, his son would not be compelled to leave the EU if he were denied a derivative right of residence. He would be able to stay in the UK with his British Citizen mother, who shared primary caring responsibilities with his father and who would not leave the UK if he were returned to Kosovo. It was also common ground that until the amendments were made by the 2018 Regulations, Mr Velaj would not have qualified as a “primary carer” because his wife, being a British Citizen, was an exempt person.

The Appellant’s case turned on the proposition that, on the true construction of Regulation 16(5) of the 2016 Regulations, he acquired rights under domestic law which go further than the minimum rights guaranteed to Zambrano carers under EU law.

Court of Appeal’s considerations and conclusions on the issues:

The Court of Appeal’s considerations included the following:

  • It was not accepted that Regulation 16(5)(c), as modified by Regulation 16(8) and (9), admits of only one interpretation.
  • The focus is on whether the British Citizen dependant would be “unable” to remain in the UK “if” something happens – i.e. on what will happen to the child if the primary carer leaves (or both primary carers leave). In that context the word “if” requires the decision maker to consider the position of the child on the basis that something is (actually) going to happen. It does not require that premise to be purely hypothetical, let alone counterfactual. Given that the person asking themselves the question has to decide what in practice would happen to the child if that event occurred, it would make little sense to require them to make an assumption that the event will happen if it plainly will not.
  • “If the person left the UK for an indefinite period” could either mean “in the event that the person [in fact] left the UK for an indefinite period” or “on the hypothesis that the person will leave the UK for an indefinite period (regardless of whether in fact he would do so)”. The former seemed to the Court to be the more natural interpretation, and carried with it the necessary implication that the postulated event (here, leaving the UK) is realistic, and not just theoretical. A purely hypothetical event could have no impact, in practice, on the ability of the child or other British Citizen dependant to remain in the UK.
  • It is clear from Chavez-Vilchez and Patel that the question whether the dependant EU citizen would be “unable to reside in the UK” depends on a fact-specific inquiry.  It requires a nuanced analysis of inability, and not a simple analysis of a hypothetical question, and that must mean that the decision-maker is looking at what is likely to happen in reality. The “key issue of inability to reside in the United Kingdom requires detailed consideration and a causal link with the departure of both carers”.
  • That interpretation is also consistent with the stated intention to give effect to Zambrano rights, whereas the rival interpretation would confer a new species of purely domestic derivative rights on someone who would never meet the Zambrano test (or the test in Chen or Ibrahim or Teixeira), in circumstances where the departure of that person from the UK would in practice have no effect at all upon the ability of the British Citizen dependant to remain in the UK. The question whether the legislator is likely to have intended this consequence admits of only one answer in the present case, and that is no.
  • Requiring the decision maker to assume that both primary carers will leave the UK when one of them will undoubtedly stay behind also precludes the type of nuanced inquiry that was envisaged in Chavez-Vilchez.
  • Assuming that “required to leave” is given a wider meaning than “legally compelled” in line with Zambrano itself that means “in the event that P will be forced to leave the UK”. The decision-maker is looking at the likely impact upon the child of the primary carer being forced by law or by economic pressure to leave the UK. It presupposes that on the facts of the specific case, this is a realistic hypothesis.
  • In the Court’s judgment there was nothing in the decision in Akinsanya which precluded the Court in Valej from adopting that construction of Regulation 16(5)(c).

The ratio in Akinsanya- understanding what the case was about:

Velaj is clear:

“59.It is important to understand what that case was. It is set out at [59] of the judgment in Akinsanya:

“the claimant’s case is 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 contends 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).” [Emphasis added].

60.Thus Ms Akinsanya’s case on Regulation 16 was entirely focused upon Regulation 16(7). She accepted that if she was not exempt, her entitlement to a derivative right to reside would depend on her being able to satisfy the criteria in Regulation 16(5). However the question whether she could or could not do so if she had leave to remain under some other provision of domestic law did not directly arise, and it was not something which this Court considered on her appeal”.

In Velaj, the Court observed that Ms Akinsanya had already satisfied those criteria and obtained her derivative rights of residence as a Zambrano carer before she was granted limited leave to remain. She met the requirements of Regulation 16(5)(c) or its predecessor, Regulation 15A(4A), at the time when she was granted her derivative right of residence. The only question in her case would be whether the grant of limited leave to remain somehow superseded her Zambrano right or meant that she was no longer entitled to it – she was contending that it did not because the two rights could co-exist. It was common ground that if she won on either of her grounds of appeal, the impugned decision to refuse her claim under the EUSS (on the basis that she did not qualify) would have to be reconsidered by the Secretary of State.

As Underhill LJ pointed out at paragraph 60 in Akinsanya, the claimant’s case was clearly right on any natural reading of Regulation 16(7), and it also reflected the understanding of the Home Office at the time when the Amendment Regulations, which introduced the concept of “exempt persons” were made. Guidance issued to UK Border Agency staff in 2012 stated that: “where someone has limited leave (and so is not listed as one of the exempt categories above) and can demonstrate that they meet all other requirements of regulation 15A, then they can acquire a derivative right of residence.”

The focus of the argument thereafter was on whether Regulation 16(7) should be given a construction that was different from its ordinary and natural meaning.

The Court in Velaj set out what the ratio was in Akinsanya:

“64.Whilst accepting the likelihood that in making the relevant parts of Regulation 16 the SSHD intended, in a broad sense, to do no more than to implement the minimum requirements of Zambrano, Underhill LJ said that this begged further questions. The SSHD may have misunderstood what those requirements were, since Iida and A had not been decided when the Amendment Regulations were made in 2012. Alternatively,

“it 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.”

In the end, however, he said that the short answer was that the language of Regulation 16(7)(c)(iv) [which referred specifically to persons with ILR] was simply too clear to allow it to be construed as covering persons with limited leave to remain. That was the ratio of the decision in Akinsanya”.

Velaj emphasises;

“65.In Akinsanya this court was not required to consider, and did not consider, the requirements of Regulation 16(5) and how 16(5)(c) might be satisfied in practice by a primary carer who had limited leave to remain. The only issue it had to determine was whether Regulation 16(7) acted as a threshold barrier precluding someone like Ms Akinsanya from asserting that she had a derivative right of residence under Regulation 16(5) (or its predecessor) which had survived the subsequent grant to her of limited leave to remain.

66.The Court in Akinsanya did not have the benefit of hearing the arguments that were advanced in the present case. Those arguments would have had no bearing on the point of construction of Regulation 16(7) which determined the outcome.

67.Mr Cox submitted that the criteria for the grant of the derivative right could not be met by a sole primary carer with limited leave to remain if the words “if the person left the UK for an indefinite period” in Regulation 16(5)(c) were not construed in the manner for which he contended, i.e. as a purely hypothetical premise. If a carer already had limited leave to remain they would not, in fact, leave the UK for an indefinite period and the child would not be compelled to leave with them.

68.Although I see the force of that argument, the immigration status of a person with limited leave to remain is precarious; leave is likely to be subject to conditions and it is liable to be withdrawn or truncated. It is possible to conceive of situations in which the conditions attached to a limited leave to remain are such as to make it impossible in practice for the primary carer to remain in the UK and look after the child.

69.I can also envisage a Zambrano carer whose limited leave to remain is due to expire making an application under Regulation 16(5)(c) and succeeding on the basis that they would have to leave the UK as soon as their limited leave expired and the child would have to go with them. In such a case if the decision-maker asks “what will happen to the child in the event that the primary carer leaves the UK for an indefinite period?” they will not be positing a completely unrealistic scenario. In any event, the practical difficulties of someone with limited leave to remain being able to satisfy the requirements of Regulation 16(5)(c) would not be a justification for construing those requirements in a manner which was clearly unintended.

71.Accordingly there is nothing in the decision in Akinsanya that precludes Regulation 16(5)(c) from being construed as I consider it should be construed”.

The appeal in Velaj was dismissed.

Conclusion

The interpretation of Regulation 16(5)(c) in Velaj enabled the Court to reach the conclusion that the appeal could not succeed.

The Court however did not undertake a detailed consideration as to how on the facts the particular appeal failed. Their analysis and conclusions on Regulation 16(5)(c) are however enough to enable a reader to grasp not only that the Appellant failed to meet the requirements of Regulation 16(5)(c)  but:

  • rejected by the Court were submissions on behalf of the Appellant that the decision-maker must determine whether the British citizen would be unable to reside in the UK on the purely hypothetical premise that their primary carer (or both primary carers) will leave the UK for an indefinite period

The Court’s view was that focus is on whether the British Citizen dependant would be “unable” to remain in the UK “if” something happens – i.e. on what will happen to the child if the primary carer leaves (or both primary carers leave). In that context the word “if” requires the decision maker to consider the position of the child on the basis that something is (actually) going to happen. It does not require that premise to be purely hypothetical, let alone counterfactual. The Court stated that given that the person asking themselves the question has to decide what in practice would happen to the child if that event occurred, it would make little sense to require them to make an assumption that the event will happen if it plainly will not.

Ultimately, the assessment of whether the British citizen would be unable to reside in the UK, the EEA if the applicant were required to leave the UK for an indefinite period requires a fact-based enquiry looking at whether, in practice, the British citizen would be unable to remain in the UK, or an EEA Member State or Switzerland, if the applicant (or, as the case may be, both primary carers) were  in fact required to leave the UK for an indefinite period. There is no need to make assumptions.

 

Refused EUSS application: non-EU spouse of EEA national wins appeal against Home Office unproven allegations of marriage of convenience

Not only did this Appellant win her appeal in 2015 but did so for a second time in April 2022, successfully countering the Secretary of State’s further unproven allegations that her marriage to an EEA national was one of convenience.

The Appellant, CZ, contended that as a spouse, she had made a valid application under Appendix EU of the Immigration Rules and was eligible for indefinite leave to remain as a family member of a relevant European Economic Area (EEA) citizen and satisfied one of the conditions of Rule EU11 of Appendix EU.

Relevant provisions of Appendix EU:

Annex A Definitions of Appendix EU, provides the definition of civil partnership of convenience, durable partnership of convenience, marriage of convenience as entered into as a means to circumvent:

  • any criterion the party would have to meet in order to enjoy a right to enter or reside in the UK under the EEA Regulations; or
  • any other provision of UK immigration law or any requirement of the Immigration Rules; or
  • any criterion the party would otherwise have to meet in order to enjoy a right to enter or reside in the UK under EU law; or
  • any criterion the party would have to meet in order to enjoy a right to enter or reside in the Islands under Islands law

The definition of spouse does not include a marriage of convenience.

What seemed to count against the Appellant:

The odds seemed stacked against CZ:

  • She disclosed during a marriage interview, that due to disagreements with the EEA sponsor, there had been several periods of separation during the 5year period she held a residence card between 2015 and 2020
  • Whilst living elsewhere, she conceived and bore a child with another man after a one-off encounter
  • Having reconciled with the EEA national following the birth of the child, and upon seeking to apply for indefinite leave to remain under Appendix EU, along with the Sponsor she was subjected to a marriage interview by the Home Office at the end of 2020
  • A total of 390 questions were asked during the interview. The Interviewing Officer sought in 2020 to dig up and revisit matters which a previous Tribunal Judge had in 2015 decided did not go towards proving a marriage of convenience
  • Relying on alleged inconsistencies arising out of the marriage interview, the Secretary of State’s position, as per the refusal decision was that the Appellant’s marriage was one of convenience.

Summary arguments for the Appellant:

I represented  CZ and amongst other issues, submitted during the appeal hearing that:

Reliance was placed upon the following line of cases:

Why the Tribunal Judge found the marriage was not one of convenience:

The Judge expressed that it was not easy to understand the basis of the Secretary of State’s decision in the appeal, reasoning and concluding as follows:

  • There were no divorce proceedings, and none were planned.
  • The EEA Sponsor’s presence in the United Kingdom as a qualified person was enough, even if the couple were no longer living together.
  • The genuine nature of the marriage had been upheld  in a determination promulgated in 2015 and as submitted, Devaseelan  applied.
  • There was no basis for seeking to reopen the genuine nature of the marriage. Whether the marriage was in trouble (having been found genuine) was not relevant to the fact of over 5 years’ residence and the continued presence in the United Kingdom of both parties.
  • the evidence showed that the Appellant and her EEA Sponsor reconciled after a period of difficulty and from that it may safely be inferred that their marriage had been strengthened. Both gave full and exceptionally frank evidence, which the Tribunal accepted as true without hesitation. Their evidence was consistent with their answers at interview.
  • The Tribunal was satisfied that the marriage was genuine and subsisting. It was not a marriage of convenience and never has been.
  • The Appellant met the conditions of Regulation EU11.3(a)(ii), (b) and (c).

The Tribunal Judge concluded that the Appellant’s appeal succeeded, and she was entitled to Indefinite Leave to Remain under Appendix EU.

 

 

 

Charter flight to Zimbabwe: how a potential deportee obtained a stay of removal

Alarmingly, enforced deportations to Zimbabwe by charter flight are fast becoming a regular occurrence.

The last such flights to Zimbabwe followed one after the other, in July and August 2021.

Another charter flight is expected to be enroute to Zimbabwe on 2nd March 2022.

2 March 2022 marks a day where:

  • several British children will be ripped apart from a parent
  • emotional bonds will be broken, some forever
  • wives and partners will abruptly find themselves raising young children as sole parents

individuals who have lived here for 20 or more years will be herded onto a plane and dumped at the airport in Harare, without jobs, no means to fend for themselves and facing possible destitution in an impoverished country that is plagued by severe economic challenges coupled with incessant political conflict.

Common questions usually asked at times such as these, include:

  • why is a person with British children and a partner being deported, surely he should be allowed to stay in the UK?
  • why deport a person who has lived in the UK for more than 20years years?

The answer lies in ascertaining provisions of the law that apply to persons who fall to be defined as “foreign criminals”.  Such persons fall for consideration under harsh Immigration Rules subject to a high threshold. This has the result that some human rights claims placing reliance on a family life with British children and partners, may at times fail before the Home Office, the Tribunal and higher courts. The consequence is that an affected person may be deported leaving young British children behind in the UK.

“Foreign criminals” and deportation

In relation to automatic deportation, Section 32(5) of the UK Borders Act 2007 provides that the Secretary of State must make a deportation order in respect of a foreign criminal (subject to the exceptions in section 33).

Section 32 defines a “foreign criminal” as a person:

  • who is not a British citizen or an Irish citizen
  • who is convicted in the United Kingdom of an offence, and
  • to whom Condition 1 or 2 applies.

Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months.

Condition 2 is that:

  • the offence is specified by order of the Secretary of State under relevant provisions and
  • the person is sentenced to a period of imprisonment.

Section 33 of the 2007 Act provides the exceptions to automatic deportation. Most commonly, reliance is placed on Exception 1 where a person argues his removal in pursuance of the deportation order would breach his:

  • ECHR Convention rights, or
  • the United Kingdom’s obligations under the Refugee Convention.

Where a person referred for deportation consideration does not meet the criteria for deportation under the 2007 Act, consideration is given to whether deportation should be pursued under the 1971 Act on the ground it is conducive to the public good.

Section 3(5) of the Immigration Act 1971 provides for the Secretary of State to make a deportation order on the basis their deportation is conducive to the public good. This gives the Secretary of State discretion to act in a way that reflects the public interest.

Part 5 of the Nationality, Immigration and Asylum Act 2002, as amended by the Immigration Act 2014, applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts:

  • breaches a person’s right to respect for private and family life under Article 8, and
  • as a result, would be unlawful under section 6 of the Human Rights Act 1998.

For these purposes, foreign criminal is defined at Section 117D of the 2002 Act:

A “foreign criminal” means a person—

  • who is not a British citizen,
  • who has been convicted in the United Kingdom of an offence, and

who:

  • has been sentenced to a period of imprisonment of at least 12 months,
  • has been convicted of an offence that has caused serious harm, or
  • is a persistent offender

Section 117(C)of the Nationality, Immigration and Asylum Act 2002, states that the deportation of foreign criminals is in the public interest. The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.

The exceptions to deportation and the very compelling circumstances test

Where a person claims that their deportation would be contrary to the UK’s obligations under Article 8 of the Human Rights Convention, they may seek to resist deportation on the basis that they meet the family life exceptions to deportation, ie – place reliance upon a family life with a qualifying child and/or reliance on a qualifying partner.

Paragraph 398 of the Immigration Rules sets out the criminality thresholds. An Article 8 claim from a foreign criminal who has not been sentenced to at least 4 years’ imprisonment will succeed if the requirements of an exception to deportation are met. The exceptions to deportation on the basis of family life are set out at Paragraph 399 of the Immigration Rules, and the exception on the basis of private life is at Paragraph 399A.

Paragraphs 398 to 399A of the Immigration Rules set out when a foreign criminal’s private and/or family life will outweigh the public interest in deporting them.

Family life exception to deportation- family life with a qualifying child:

Paragraph 399 (a) of the Immigration Rules applies if:

The person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK and:

(i) the child is a British Citizen; or

(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case:

  • it would be unduly harsh for the child to live in the country to which the person is to be deported; and
  • it would be unduly harsh for the child to remain in the UK without the person who is to be deported

Section 117C(5) of the Nationality, Immigration and Asylum Act 2002, as amended by the Immigration Act 2014, contains similar provisions however not in as much detail as the above Immigration Rule.

Family life exception to deportation – family life with a qualifying partner:

Paragraph 399(b) applies if the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen or settled in the UK, and

  • the relationship was formed at a time when the person (deportee) was in the UK lawfully and their immigration status was not precarious; and
  • it would be unduly harsh for that partner to live in the country to which the person is to be deported, because of compelling circumstances over and above those described in paragraph EX.2. of Appendix FM; and
  • it would be unduly harsh for that partner to remain in the UK without the person who is to be deported.

Section 117C(5) of the Nationality, Immigration and Asylum Act 2002, as amended by the Immigration Act 2014, contains similar provisions however not in as much detail as the  above Immigration Rule.

Private life exception to deportation:

A person can resist deportation on the basis that Paragraph 399A of the Immigration Rules applies to their case.

Paragraph 399Aapplies if:

  • the person has been lawfully resident in the UK for most of his life; and
  • he is socially and culturally integrated in the UK; and
  • there would be very significant obstacles to his integration into the country to which it is proposed he is deported.

Section 117C(4) of the Nationality, Immigration and Asylum Act 2002, as amended by the Immigration Act 2014, contains similar provisions.

Very compelling circumstances:

An Article 8 claim from a foreign criminal who has been sentenced to at least 4 years’ imprisonment will only succeed where there are very compelling circumstances over and above the circumstances described in the exceptions to deportation at paragraphs 399 and 399A.

Paragraph 398 provides that in such circumstances, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A.

Section 117C(6) of the Nationality, Immigration and Asylum Act 2002, as amended by the Immigration Act 2014, contains similar provisions.

Why some claims submitted by “foreign criminals” fail:

At first glance, the above provisions seem fairly “easy” to satisfy however they have generated much caselaw in the Upper Tribunal and higher courts in seeking to interpret, for example, what is meant by:

  • unduly harsh
  • very significant obstacles to integration
  • very compelling circumstances

Where the Home office, the Tribunal or higher courts conclude on the facts of a case and by reference to the evidence provided that the threshold in the unduly harsh test or very compelling circumstances test is not met, a claim based on private and family life provisions may ultimately fail, leading to a person’s deportation.

A “standardised” Home Office refusal decision in relation to human rights claims raised by foreign criminals usually raises the following as a basis of refusal:

  • the applicant has not demonstrated that he has a genuine and subsisting relationship with his child.
  • the applicant has not met the requirements of the exception to deportation on the basis of family life with a child in accordance with paragraph 399(a).
  • the applicant is not in a genuine and subsisting relationship with his claimed Partner and it is concluded that he does not meet the requirements of the exception to deportation on the basis of family life with a partner.
  • even if the evidence is taken at its highest and it is assumed that the applicant has a genuine and subsisting relationship with his child, it is considered that he has not sufficiently demonstrated that it would be unduly harsh for his child to live in Zimbabwe with him and that it would be unduly harsh for his child to remain in the UK whilst he is returned to Zimbabwe.
  • It is acknowledged that the standard of living may be lower in Zimbabwe in comparison to the UK, however, the applicant’s assertion is speculative and does not mean it would be unduly harsh to expect his child to live with him in Zimbabwe.
  • The applicant is a Zimbabwean national and as such is accustomed to the lifestyle and culture in Zimbabwe.
  • The applicant will be able to support his child and ease his integration to life in Zimbabwe. It is noted that the child is 5 years old, and although he may be accustomed to life in the UK, it is considered that he is at an age where it would be easier for him to adapt to life in Zimbabwe, especially with the support of his parents.
  • Alternatively, the applicant’s child can remain in the UK with his mother whilst the applicant is returned to Zimbabwe.
  • It is asserted that the applicant’s child will be severely affected if he is separated from his father. It is reasonable to assume that the absence of the applicant would have some effect on the partner and their child, however, this is not sufficient to constitute as unduly harsh. There is no indication that the partner and their child are financially dependant on the applicant, nor is there any evidence to demonstrate that the applicant’s presence is required in the UK to support the partner and their son.
  • the difficulty that arises, especially where there is a shift to being a sole parent is acknowledged, however, as the partner is British/ has been granted Indefinite Leave to Remain in the UK she has access to the required additional support available to support single parents, especially single mothers. It is considered that the partner would be able to take care of and support their son whilst the applicant returns to Zimbabwe. The applicant would still be able to maintain contact with his son via modern means of communication and with support from his mother could organise for his son to visit him in Zimbabwe or elsewhere (outside of the UK).
  • In relation to the applicant’s established family life with his partner, it remains that the relationship between the applicant and his partner started when the applicant did not have any lawful leave to remain in the UK. As specified in paragraph 399(b)(i) a relationship will only qualify where it is formed ‘at a time when the person (deportee) was in the UK lawfully and their immigration status was not precarious’.
  • In relation to the applicant’s private life, it remains that the applicant has not been lawfully resident in the UK for most of his life or even 20 years.
  • In addition, it is considered that the applicant has demonstrated a resourceful attitude in the face of adversity in a new country he had no prior knowledge of, therefore he can use this gained knowledge and skills in a country he has spent his formative years in.
  • The applicant put forward evidence to show the socio-economic conditions in Zimbabwe, however, he did not provide any substantial evidence or information to demonstrate that he would be destitute upon his return to Zimbabwe as required in the case of MA (Prove Destitution). Whilst it is acknowledged that the applicant may find life challenging upon his return to Zimbabwe due to not having been there for some time and the standard of living not being on the same level as the UK, this does not establish that there would be very significant obstacles to the applicant’s integration in Zimbabwe
  • In order to outweigh the public interest in deporting the applicant, he would need to provide evidence of a very strong Article 8 claim over and above the circumstances described in the exceptions to deportation. He has provided no such evidence. Therefore, having considered the facts of the applicant’s case, it is not accepted that there are very compelling circumstances which outweigh the public interest in seeing him deported.
  • Therefore, for the reasons above it is not accepted that there is a real risk that the applicant’s removal from the United Kingdom would breach Article 8 of the ECHR.

2 March 2022 Removal Directions: Injunction granted by Upper Tribunal Judge against removal to Zimbabwe

The applicant was unexpectedly detained on 22 February 2022 at his family home during an enforcement visit.

Amongst other documents, he was served with a Factual Immigration Summary, removal directions for 2 March 2022 to Zimbabwe and a letter stating: “For the avoidance of doubt, if the Home Office concludes that removal should proceed in your case notwithstanding any further representations, and/or an application for judicial review, your removal from the United Kingdom will only be suspended on the Order or Directions of the Court”.

The applicant formally instructed me on 23 February 2022. On the same day, a request was made to Home Office FNO Leeds to provide the Tribunal decision of 2016 and other key documentation such as the deportation order- the applicant no longer had these documents on being detained.

The Home Office provided the documents on 24 February 2022 in the morning,

In the evening, 24 February 2022, the applicant with my assistance, submitted an application to revoke the deportation order that had been issued a few years ago.  Representations were  prepared and submitted along with supportive documentation including his partner’s statement.

Considered to be a persistent offender, the applicant had fallen subject to deportation proceedings in 2016. His appeal failed in 2016 before the Tribunal.

At the time of detention on 22 February 2022 the applicant however now had a British child with his long-term Zimbabwean partner who holds refugee protection settlement.

The representations of 24 February 2022 put the Secretary of State on notice that where an in- country right of appeal was not provided in the event of a refusal or where removal directions were not deferred/cancelled, an urgent application for judicial review would be commenced.

The 24th  February 2022 application was refused on Saturday, 26 February 2022 with no right of appeal. The format of the refusal decision followed that as set out above.  Removal was not deferred.  No right of appeal was provided.

On the same day,  Saturday, 26th February, Counsel was approached to consider the case and prepare grounds of claim. Having considered the provided papers, she promptly identified grounds of claim and advised accordingly.

The judicial review claim was filed in the Upper Tribunal by email just before 5pm on Monday, 28 February 2022.  An urgent application for a stay of the removal of 2 March 2022 was included, with a request to make a decision on the urgent application within a matter of hours.

In the morning of Monday, 1st March 2022, the Upper Tribunal issued the sealed claim form.  The applicant’s Bundle was served upon the Secretary of State along with the sealed claim form.

A few hours later at noon, 1st  March 2022, the application for a stay of removal was granted by an Upper Tribunal Judge with the applicant not to be removed to Zimbabwe pending the outcome of the application for judicial review or until further order.

The stay order was emailed to the Secretary of State requesting written confirmation that the removal directions of 2 March 2022 be cancelled.

At 2.38pm on 1st March 2022, the Home Office sent a letter confirming the removal directions set for 2 March 2022 had been cancelled.

Conclusion

Each case is different.

Cases involving deportation are complex.

Due to the imminent time factors that apply in cases such as these, it is important however to put forward a claim as effectively as possible and not allow valuable time to slip by in cases where it becomes evident that an application for judicial review, with an urgent stay of removal application will need to be made to the Upper Tribunal.

 

Instructed Counsel:

Shivani Jegarajah

Justitia Chambers

 

Court of Appeal concludes Upper Tribunal conducted an unfair paper determination of an error of law appeal and endorses Upper Tribunal decision of EP(Albania)

In Hussain & Anor v Secretary of State for the Home Department [2022] EWCA Civ 145 (11 February 2022), the Appellants, Hamid Hussain and GA, were granted permission to appeal on the papers by  the Court of Appeal, with that Court noting,  “….the appeals raised issues relating to: the guidance note; the decision in JCWI v President of UTIAC; and the decision in EP(Albania). These issues had been raised in a considerable number of other applications for permission to appeal to the Court of Appeal …”

In both appeals in Hussain, on deciding the appeals on the papers following the grant of permission to appeal from the FTT, different Upper Tribunal Judges at different periods in time in 2020, dismissed the appeals on paper without having been provided by the Upper Tribunal itself with the Appellants’ respective submissions dated 2 April 2020 and 23 July 2020, in which they requested oral hearings.

In essence, the issue in the appeals was whether the Upper Tribunal’s paper determination of the Appellants’ appeals from the First Tier Tribunal satisfied the requirements of common law fairness.

The Court of Appeal’s overall conclusion at paragraph 71 of its judgement in Hussain was:

“For the detailed reasons set out above: (1) UTIAC could, after the guidance note had been issued on 23 March 2020, determine an error of law appeal from the FTT on the papers, so long as it was fair to do so. Therefore the critical issue on any appeal, or application for permission to appeal, will be whether such a paper determination by UTIAC of the appeal from the FTT satisfied the common law requirements of fairness. The UT was, therefore, right in EP(Albania) to reject the submission that, as a result of the judgment in JCWI v President of UTIAC, all determinations on paper made by UTIAC after the guidance note had been produced, should be set aside; (2) the paper determination by UTIAC of Mr Hussain’s appeal from the FTT did not satisfy the requirements of common law fairness because his submissions dated 2 April 2020 were overlooked; and (3) the paper determination by UTIAC of GA’s appeal did not satisfy the requirements of common law fairness because his submissions dated 23 July 2020 were overlooked and because the UT Judge did not give GA an opportunity to address the UT’s concerns about whether the Country Guidance in MB CG should be followed”.

Applicable Upper Tribunal Rules:

Rules 34 and 43 of the Upper Tribunal Rules were in issue:

Rule 34 of the Upper Tribunal Rules provides:

“34.— Decision with or without a hearing

(1) Subject to paragraphs (2) and (3), the Upper Tribunal may make any decision without a hearing.

(2) The Upper Tribunal must have regard to any view expressed by a party when deciding whether to hold a hearing to consider any matter, and the form of any such hearing.

(3) In immigration judicial review proceedings, the Upper Tribunal must hold a hearing before making a decision which disposes of proceedings.

(4) …”

Rule 43 of the Upper Tribunal Rules states:

“43.— Setting aside a decision which disposes of proceedings

(1) The Upper Tribunal may set aside a decision which disposes of proceedings, or part of such a decision, and re-make the decision or the relevant part of it, if— (a) the Upper Tribunal considers that it is in the interests of justice to do so; and (b) one or more of the conditions in paragraph (2) are satisfied.

(2) The conditions are— (a) a document relating to the proceedings was not sent to, or was not received at an appropriate time by, a party or a party’s representative; (b) a document relating to the proceedings was not sent to the Upper Tribunal at an appropriate time; (c) a party, or a party’s representative, was not present at a hearing related to the proceedings; or (d) there has been some other procedural irregularity in the proceedings.

(3) …”

Relevant Guidance:

As summarised in Hussain by way of background, the President of UTIAC issued Guidance Note on 23 March 2020 at the beginning of the COVID-19 pandemic.

The guidance note had been issued after the Senior President of Tribunals (“the SPT”) had issued a Pilot Practice Direction on 19 March 2020, which included, at paragraph 4:

“Decisions on the papers without a hearing “Where a Chamber’s procedure rules allow decisions to be made without a hearing, decisions should usually be made in this way, provided this is in accordance with the overriding objective, the parties’ ECHR rights and the Chamber’s procedure rules about notice and consent”.

As per Hussain {28}, material provisions of the guidance note are set out in paragraphs 3.9 and 3.10 of the judgment in  Joint Council for the Welfare of Immigrants v President of the Upper Tribunal (Immigration and Asylum Chamber) [2020] EWHC 3103 (Admin)[2021] PTSR 800 (“JCWI v President of UTIAC”).

Hussain also summarised{3} that paragraphs 9 to 17 of the guidance note had subsequently been held to be unlawful by the High Court in  JCWI v President of UTIAC by decision  made on 20 November 2020. In that case it was held that guidance in the guidance note was unlawful because, objectively interpreted, it gave advice which was wrong in law and which would tend to encourage unlawful decisions about when to determine appeals on paper.  This was because the guidance note did not make it sufficiently clear that any decision to determine an error of law appeal without a hearing had to be consistent with principles of fairness.

In Hussain, the Court of appeal referred to EP(Albania) and others [2021] UKUT 233 (IAC), noting :

“6.  In EP(Albania) and others [2021] UKUT 233 (IAC) eighteen of these Rule 43 applications were heard by UTIAC (Swift J and UTJ Blundell) (“EP(Albania)”) on 10, 11 and 29 June 2021. The decision and reasons in EP(Albania) were promulgated on 2 September 2021 (although the date does not appear on the decision). The UT held that not all appeals which had been determined on the papers after the guidance note had been issued should be set aside. Each Rule 34 decision to have a paper determination was a reasoned decision and the merits of the Rule 43 applications must be determined on consideration of the reasons given in each case.

7.At paragraphs 67 to 69 of the judgment in EP(Albania) the Upper Tribunal concluded that there was “no single, one size fits all, answer to the Rule 43 applications”. The Upper Tribunal held that a decision to determine the appeal on the papers would be unlawful if there had been a failure to act fairly and there would be a need to consider whether the “reasons expressly or by inference point to a conclusion reached without consideration of the principles that make up the overriding objective, or without consideration of whether determination of the error of law appeal without a hearing would be consistent with the principles of fairness”. It was held that sixteen of the applications to set aside the paper determinations under Rule 43 should be refused. In two applications there had been specific errors in the decisions to have a paper determination which led to the setting aside of those determinations”.

Refined issues identified by the Court of Appeal and endorsement of EP(Albania) :

In relation to the issues that applied in Hamid Hussain and GA’s appeal, following some consideration, the Court of Appeal refined them as follows:

  • It was common ground that UTIAC could, after the guidance note had been issued on 23 March 2020, determine an error of law appeal from the FTT on the papers, so long as it was fair to do so. Therefore the critical issue for the Court of Appeal in the present appeals would be to decide whether such a paper determination by UTIAC of the appeal from the FTT satisfied the common law requirements of fairness.
  • It was sufficient for the purposes of the appeals to say only that what fairness requires will depend on the circumstances of the particular case.
  • It was also common ground between the parties that, if there had not been a fair determination of the appeal in UTIAC then, absent showing that the result of the appeal would inevitably have been the same, UTIAC’s determination should be set aside.
  • It was in these circumstances that it was clear that it would not be necessary for the Court in Hussain to determine the issue raised by the Secretary of State’s late amended Respondent’s Notice about whether the decision JCWI v The President of UTIAC was rightly decided. That particular issue could be determined, if necessary, in an appeal in which it arises.
  • The reason that it was not necessary to determine whether JCWI v The President of UTIAC was rightly decided was because that judgment was looking at a different issue, namely whether the objective interpretation of the guidance note communicated a usual position whereby UTIAC substantive appeals would be determined on the papers (which Fordham J. had called “an overall paper norm”) which would have been inconsistent with the proviso in paragraph 4 of the Practice Direction issued by the SPT on 20 March 2020, and common law fairness.
  • The position in the present appeals in Hussain was different. The Court was not looking at whether, objectively judged, the guidance note had the potential to mislead UT judges to make unfair, and therefore unlawful, determinations on paper. The issue before the Court was whether the paper determinations were in fact unfair.
  • For broadly similar reasons, the Upper Tribunal was right in EP(Albania)to reject the submission that, as a result of the judgment in JCWI v President of UTIAC, the determinations on paper made by UTIAC after the guidance note had been produced, should be set aside. This was because the question was whether it was fair to determine the matter on the papers.

What went wrong in Mr Hussain’s appeal in the Upper Tribunal?

As observed by the Court, it was clear that the issue in Mr Hussain’s appeal was whether there was a fair paper determination of his appeal generally and specifically because his written submissions dated 2 April 2020 were not considered, and because the UT Judge did not engage with a number of arguments as to why the FTT Judge had erred in law in making certain findings of fact.

The key sequence of events were as follows in Mr Hussain’s appeal:

  • Having applied for a residence card in 2018 as an extended family member of an EEA national (his uncle) pursuant to the Immigration (European Economic Area) Regulations 2016, the application was refused by the Secretary of State. On 26 September 2019, an FTT Judge dismissed the appeal as it was considered that none of the documents evidenced the financial dependency of Mr Hussain on the uncle when Mr Hussain was living in Pakistan.
  • After Mr Hussain applied for permission to appeal to the Upper Tribunal on the basis that the FTT Judge had erred in assessing the evidence of dependency in Pakistan, on 28 February 2020 the application for permission to appeal was granted by the First Tier Tribunal. This included the then standard directions for an oral hearing.
  • As a result of the developing COVID-19 pandemic, on 18 March 2020 the Vice President of UTIAC sent out written directions. He stated that he had reached a provisional view that it would be appropriate to determine the error of law and the decision whether to set aside the FTT decision without a hearing. He directed that any party who considered a hearing to be necessary should make written submissions.
  • The SPT’s Practice Direction was issued on 20 March 2020. The guidance note was issued on 23 March 2020. The Vice President’s direction in Mr Hussain’s appeal to the UT pre-dated the guidance note dated 23 March 2020.
  • Written submissions dated 2 April 2020 were filed on behalf of Mr Hussain and at paragraph 3 of these submissions it was stated: “The appellant submits that some form of hearing in the instant case is appropriate and is (at least arguably) necessary in order to provide the appellant with an effective hearing of this error of law appeal. In line with the said directions, the appellant may provide reasons in support of this proposition in a separate document which is to be filed by 9 April. He reserves the right to do so”.

Following further filing of written submission by the parties, on 1 May 2020 the Upper Tribunal Judge issued written directions and referred to the Vice President’s directions stating:

 ‘…What is clearly anticipated by such directions was that there will be a sequential opportunity for the parties to comment upon each other’s further observations. Despite that the first document to be received was that of 3 April 2020 from the Secretary of State. The first communication from the appellant was not received until 9 April 2020 which, rather than dealing with the specific terms of the Vice President’s direction, applied for an adjournment claiming the hearing should be stayed for a face-to-face hearing after the Covid 19 emergency had subsided relying upon the letter from ILPA dated 2 April 2020 which was annexed… There then followed further written submissions received on 16 April 2020 from the appellant described as being submissions in reply. Whilst these seek to respond to those provided by the Secretary of State’s representative they are the first detailed submissions made as to the making of an error of law and the failure to provide the same in the first submissions deprived the Secretary of State with the opportunity to respond to the same. This is procedurally unfair.’

The UT Judge then made directions providing for the Secretary of State to file and serve submissions if so advised. Mr Hussain’s solicitors emailed the Upper Tribunal on 12 May 2020 and 18 May 2020 to point out that submissions had in fact been lodged on 2 April 2020 in accordance with the directions. On 15 May 2020 the Secretary of State confirmed by email that she had received the submissions dated 2 April 2020.

On 27 May 2020 the UT Judge promulgated a written decision and reasons. The decision and reasons were headed in the top left On the papers, pursuant to COVID-19 UTIAC directions, on 18 May 2020″.  At paragraph 2 of the decision it was stated:

“Following the closure of Field House and adjournment of UTIAC hearings outside London a direction was sent to the parties on 20 March 2020 indicating a preliminary view that the error of law hearing was suitable for determination remotely and providing an opportunity for the parties to respond. A response was received but not in the terms anticipated by the directions. Accordingly further directions were issued and sent [to] the parties on 12 May 2020 a copy of which is set out at Annex A. On 14 May 2020, the respondents representative emailed UTIAC advising that the Secretary of State did not wish to file any further submissions.”

The UT Judge recorded that it was for the Upper Tribunal to determine what form of hearing should take place and that there was no right to face to face hearings enshrined in law but it was a protected concept that there should be fairness and the interests of justice in the manner in which a case was decided.

The UT Judge dismissed the appeal on the merits on the basis that the FTT Judge had considered all the relevant evidence and reached a permissible decision on the facts about Mr Hussain’s lack of dependency on his uncle.

At the end of the decision and reasons there was a stamp above the UT Judge’s name and the decision was dated “18 May 2020”. Immediately below that date was an annexe A. This annexe comprised the directions made by the UT Judge on 1 May 2020. This included the statement in those written directions by the UT Judge that although the Vice President’s directions contemplated submissions from the appellant to be filed first, “despite that the first document to be received was that of 3 April 2020 from the Secretary of State.”

Mr Hussain sought permission to appeal to the Court of Appeal, with Ground two of the grounds of appeal submitting that the Upper Tribunal had committed a procedural error by failing to consider correspondence from the parties identifying those submissions dated 2 April 2020 had been filed on behalf of Mr Hussain.

Why the Court of Appeal allowed Mr Hussain’s appeal:

In allowing, the appeal, the Court reasoned as follows:

  • It was clear that the UT Judge did not have Mr Hussain’s submissions dated 2 April 2020 before making the directions dated 1 May 2020. This is because those directions specifically recorded what submissions had been received, wrongly stated that the Secretary of State’s response was the first document received, and stated that the failure to file submissions first on behalf of Mr Hussain had been “procedurally unfair”.
  • It was unfortunate that Mr Hussain should have been blamed for a failing which had not taken place.
  • It was apparent that those then acting on behalf of both Mr Hussain and the Secretary of State attempted to draw the attention of the UT Judge to the submissions dated 2 April 2020 in emails to the UT. However it seemed clear that these could not have been received by the UT Judge before the paper determination of the appeal. This was because the decision expressly recorded at the outset that directions had been sent out and “a response was received but not in the terms anticipated by the directions”, which must have been a reference to what was (wrongly) considered to have been the failure on behalf of Mr Hussain to comply with the directions. This conclusion was supported by the fact that the directions dated 1 May 2020, in which it was expressly stated that what had been done on behalf of Mr Hussain was “procedurally unfair”, were annexed as part of the decision and reasons. There was nothing in the decision and reasons promulgated by the UT Judge to suggest that that comment had been recognised to have been mistaken.
  • It was clear that whatever was thought by the UT Judge when dealing with the application for permission to appeal, which application was determined on 8 September 2020, nearly four months after the decision and reasons dated 18 May 2020, the submissions dated 2 April 2020 were not taken into account by the UT Judge.
  • The fact that documents which had been filed on behalf of parties might not have been supplied to judges is not particularly surprising given the disruption caused to office systems during the pandemic, and particularly during the early phases of the pandemic.
  • The UT Judge had expressly stated that Mr Hussain’s failure to follow the direction was procedurally unfair. This would have been a perfectly proper conclusion if it had been accurate, but it was based on mistaken information and Mr Hussain would be entitled to feel a sense of grievance at having been wrongly accused of having been responsible for some procedural unfairness.

The Court of Appeal concluded that the determination of Mr Hussain’s appeal on the papers did not satisfy the requirement of common law fairness.

His appeal against the decision and reasons promulgated on 27 May 2020 was allowed and remitted to the UT.

What went wrong in GA’s case and why the Court of Appeal allowed his appeal:

In Hussain, the Court noted from early on in its judgement that so far as GA’s appeal was concerned, the Secretary of State accepted that there was an error of law in the proceedings before UTIAC and that GA’s appeal should be allowed. In brief, this was because the UT Judge did not appear to have given express consideration to whether it was fair to determine the appeal on the papers, and because the UT Judge did not appear to have been shown submissions by GA dated 23 July 2020 requesting an oral hearing.

The Court of Appeal concluded that UTIAC’s paper determination of GA’s appeal from the First Tier did not satisfy the requirements of common law fairness.

The Court allowed GA’s appeal against the decision and reasons promulgated on 2 September 2020 by the Upper Tribunal and remitted GA’s error of law appeal from the FTT to be determined by the Upper Tribunal, observing that the way in which the Upper Tribunal should determine the appeal was a matter for the Upper Tribunal to determine on a fair basis.

 

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

“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

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.