Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00307/2013

THE IMMIGRATION ACTS

Heard at Glasgow
Date promulgated:
On 12 August 2016
On 2 February 2017

Before

The President, The Hon. Mr Justice McCloskey

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
And

REDHA HAMIDECHE
Respondent

Representation
Appellant: Mr M Matthews, Senior Home Office Presenting Officer
Respondent: Mr CH Ndubuisi of Drummond Miller Solicitors

DECISION
1. In this regrettably delayed appeal, a brief recitation of the history will suffice. I shall employ the appellations "Appellant" and "Respondent" as they applied at first instance.
2. The Appellant is aged 45 years and of Algerian nationality. Having entered the United Kingdom in 1995, he pursued an unsuccessful claim for asylum. On 10 May 1999 he married a lady of dual British and Irish nationality, as a result of which on 28 September 2000 he was granted six months leave to enter as the spouse of an EEA national who was exercising Treaty rights. I shall describe this lady as "Mrs H". The marriage was of extremely short duration, less than two years.
3. The Appellant became a prolific offender, generating 16 separate convictions in respect of 36 offences spanning the period 1998 to 2012. His most recent offending consisted of attempted robbery and assault, attracting a sentence of 31 months' imprisonment on 15 August 2012. This was the impetus for the Secretary of State's decision, dated 08 February 2013, to make a deportation order against him under Section 32(5) of the UK Borders Act 2007. Thereafter, in brief compass:
(i) The First-tier Tribunal (the "FtT") allowed the Appellant's appeal under Article 8 ECHR, in a decision dated 27 September 2013.
(ii) By decision dated 28 November 2013, a Judge of the Upper Tribunal allowed the Secretary of State's appeal.
(iii) By the interlocutor of the Court of Session, dated 18 June 2015, the Appellant's appeal against the decision of the Upper Tribunal was allowed and remittal was ordered.
4. The contours of this remitted hearing are shaped by what the Court of Session ordered:
"? The Upper Tribunal erred in law in not resolving the challenge to the Appellant's deportation predicated on a reliance on purported EEA rights; [the Court] for that reason set aside the decision of the Upper Tribunal dated 28 November 2013 only insofar as it dismissed the Appellant's appeal ?. [and] remits the case back to the Upper Tribunal with a direction to determine whether the decision of the Respondent was unlawful (i) having regard to the possible application of the Immigration (European Economic Area) Regulations 2006; and (ii) having regard to Article 8 [ECHR] in the light of the factual position pertaining at the date of the consideration to follow."
The die is cast accordingly.
5. All of the evidence in this appeal is documentary. Some aspects of the virtual matrix are uncontroversial, others not. Having considered the evidence and the parties' respective arguments, I find that the following material facts are either admitted or proven to the requisite standard:
(a) The Appellant's son was born on 18 August 1998 in Edinburgh, Scotland.
(b) The Appellant and Mrs H were married on 10 May 1999. They separated in 2001 and remain separated.
(c) On 28 September 2000 the Appellant was granted six months leave to enter the United Kingdom for the express purpose of affording him an opportunity to provide evidence that he was the spouse of a EEA national exercising Treaty rights. This grant seems to have been made outwith the Immigration Rules.
(d) On 07 February 2001 Mrs H acquired the status of citizen of the Republic of Ireland.
(e) During an unspecified period between 2001 and 2003 Mrs H completed an Access to University course.
(f) Between September/October 2003 and June 2009 Mrs H studied nutrition at Queen Margaret University, Edinburgh, obtaining a Bachelor of Science with Honours.
(g) On 29 March 2010 Mrs H's application for Jobseeker's Allowance was granted, backdated to 16 March 2010.
(h) Mrs H began working for NHS Lothian on 31 October 2011. There are no further particulars of this, or any other, employment.

THE EEA REGULATIONS
6. This issue is susceptible to formulation in very compact terms indeed. The Appellant's case is that he acquired a permanent right of residence in the United Kingdom qua family member of a qualified person for a minimum period of five years. The legal effect of this is that he became entitled to the enhanced protections against deportation enshrined in the Regulations and, further, that deportation action against him could only be taken under this regime. Neither the FtT nor the Upper Tribunal, in its decision of 28 November 2013, determined this issue. This is what lies at the heart of the Court of Session's interlocutor.
7. By regulation 6(1) of the EEA Regulations a "qualified person" means a person who is an EEA national and is in the United Kingdom in the capacity of, inter alia, student. Regulation 4(1)(d) contains the following definition of "student":
"(d) "student" means a person who-
(i) is enrolled, for the principal purpose of following a course of study (including vocational training), at a public or private establishment which is-
(aa) financed from public funds; or
(bb) otherwise recognised by the Secretary of State as an establishment which has been accredited for the purpose of providing such courses or training within the law or administrative practice of the part of the United Kingdom in which the establishment is located;
(ii) has comprehensive sickness insurance cover in the United Kingdom; and
(iii) assures the Secretary of State, by means of a declaration, or by such equivalent means as the person may choose, that he has sufficient resources not to become a burden on the social assistance system of the United Kingdom during his period of residence."
8. There were corresponding provisions under the previous regime, the Immigration (European Economic Area) Regulations 2000. Regulation 3(1)(g) contained the following definition of "student":
"(g) "student" means a person who-
(i) is enrolled at a recognised educational establishment in the United Kingdom for the principal purpose of following a vocational training course;
(ii) assures the Secretary of State by means of a declaration, or by such alternative means as he may choose that are at least equivalent, that he has sufficient resources to avoid him becoming a burden on the social assistance system of the United Kingdom; and
(iii) is covered by sickness insurance in respect of all risks in the United Kingdom."
By regulation 5 a student who satisfied the requirements of regulation 3(1)(g) was encompassed within the definition of "qualified person".
9. By regulation 4(1)(d) of the 2006 Regulations:
"(d) "student" means a person who-
(i) is enrolled, for the principal purpose of following a course of study (including vocational training), at a public or private establishment which is-
(aa) financed from public funds; or
(bb) otherwise recognised by the Secretary of State as an establishment which has been accredited for the purpose of providing such courses or training within the law or administrative practice of the part of the United Kingdom in which the establishment is located;
(ii) has comprehensive sickness insurance cover in the United Kingdom; and
(iii) assures the Secretary of State, by means of a declaration, or by such equivalent means as the person may choose, that he has sufficient resources not to become a burden on the social assistance system of the United Kingdom during his period of residence."
10. Next, it is necessary to consider the definition of "family member". First, by regulation 6 of the 2000 Regulations:
"(1) In these Regulations, paragraphs (2) to (4) apply in order to determine the persons who are family members of another person.
(2) If the other person is a student, the persons are-
(a) his spouse; and
(b) his dependent children.
(3) If he is a self-sufficient or retired person, the persons are-
(a) his spouse;
(b) descendants of his or of his spouse who are under 21 or are their dependants; and
(c) dependent relatives in his ascending line or that of his spouse.
(4) In any other case, the persons are-
(a) his spouse;
(b) descendants of his or of his spouse who are under 21 or are their dependants;
(c) dependent relatives in his ascending line or that of his spouse."
With effect from 30 April 2006, the commencement date of the 2006 Regulations, the new definition of "family member" is to be found in regulation 7. For the purposes of this appeal, the definition of "family member" encompasses a person who is the spouse of another person. The consequence of having the status of family member of a qualified person is spelled out in regulation 15:
"(1) The following persons shall acquire the right to reside in the United Kingdom permanently-
(a) an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years;
(b) a family member of an EEA national who is not himself an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years;?"
The cross heading of regulation 15 is "permanent right of residence".
11. Changes to the 2006 Regulations were introduced by the Immigration (European Economic Area) (Amendment) Regulations 2012. These contain certain transitional provisions, the most importance whereof in the present context are paragraph 2(2) and (3) of Schedule 3:
"(2) The criterion in this subparagraph is met where F was on 16th July 2012 a person with a permanent right to reside in the United Kingdom under the 2006 Regulations.
(3) The criteria in this subparagraph are met where F-
(a) was on the 16th July 2012 a person with a right to reside in the United Kingdom under the 2006 Regulations; and
(b) on the 16th October 2012-
(i) held a valid registration certificate or residence card issued under the 2006 Regulations;
(ii) had made an application under the 2006 Regulations for a registration certificate or residence card which had not been determined; or
(iii) had made an application under the 2006 Regulations for a registration certificate or residence card which had been refused and in respect of which an appeal under regulation 26 could be brought while the appellant is in the United Kingdom (excluding the possibility of an appeal out of time with permission) or was pending (within the meaning of section 104 of the Nationality, Immigration and Asylum Act 2002)."
The Appellant contends that he is the beneficiary of these provisions.

THE APPELLANT'S CASE
12. The lawfulness of the impugned decision of the Secretary of State falls to be assessed by reference to the date upon which it was made, 11 February 2013. The essential question which arises is whether, by reference to events preceding this date, the Appellant can demonstrate that he acquired the status of family member of a qualified person within the compass of the 2006 Regulations, thereby acquiring a right of permanent residence in the United Kingdom.
13. The Appellant, in advancing this case, is driven to rely heavily on the contention that Mrs H was a "student" within the meaning and satisfying the requirements of the 2006 Regulations and their predecessor during a lengthy period, namely 2003 - 2009. In adjudicating on the Appellant's case, the central issues to be determined are of a purely factual nature, namely whether Mrs H satisfied, at the material times, the requirements of regulation 3(1)(g) of the 2000 Regulations and, when this regime was superseded, regulation 4(1)(d) of the 2006 Regulations. These two statutory provisions are reproduced in [8] and [9] above.
14. It is common case that the Secretary of State's decision dated 08 February 2013 to deport the Appellant was made under section 32(5) of the UK Borders Act 2007. By the terms of this decision, the Secretary of State expressly disavowed the Appellant having any right of residence under the EEA Regulations. It follows that if the Appellant is able to demonstrate that he is a family member of a EEA national, the impugned decision would not have been in accordance with the law and a new decision under regulation 19(3)(b) of the EEA Regulations would be required.
15. At the conclusion of the hearing on 12 August 2016, it became necessary to defer the Tribunal's decision and to make a formal direction for further submissions in writing. Subsequent administrative oversight has, regrettably, delayed finalisation of this judgment: see the Addendum below.

DECISION AND DISPOSAL
16. The period under particular scrutiny is that during which Mrs H was a student, namely 2001 to 2009. During the first five years of this period, the statutory provision of relevance for present purposes was regulation 3(1)(g) of the 2000 Regulations: see [8] above. The definition of "student" in regulation 3(1)(g) had three elements. I find that the first of these was satisfied. However, there is no evidence whatsoever which would enable the Tribunal to find that either the second (a declaration or other proof of self-sufficient resources) or the third (proof of comprehensive sickness insurance) was satisfied. As regards the last three years of the relevant period, the relevant statutory provision was regulation 6(1) of the 2006 Regulations: see [7] above. This definition is substantially similar to its predecessor. Once again, I find that the first of the three elements compromising the definition of "student" was satisfied. However, there is no evidence whatsoever permitting a finding of compliance with either the second or the third of these elements.
17. It follows that Mrs H was not a "qualified person" within the meaning of either the 2000 Regulations or the 2006 Regulations at any material time. The Appellant, in consequence, was not the family member of a qualified person at any material time. Having regard to the presentation of the Appellant's case, this emerged as the main issue to be decided by the Tribunal.
18. A further issue emerged at the hearing. The 2006 Regulations, in particular the definition of "EEA national" in regulation 2, were amended with effect from 16 October 2012 by the Immigration (EEA) (Amendment) Regulations 2012, stimulated by the decision in McCarthy v Secretary of State for the Home Department [2001] Imm Ar 586. The transitional arrangements are contained in Schedule 3, paragraph 2 whereof provides in material terms:
"(1) Where the right of a family member ("F") to be admitted to, or reside in, the United Kingdom pursuant to the 2006 Regulations depends on the fact that a person ("P") is an EEA national, P will, notwithstanding the effect of paragraph 1(d) of Schedule 1 to these Regulations, continue to be regarded as an EEA national for the purpose of the 2006 Regulations where the criteria in subparagraphs (2), (3) or (4) are met and for as long as they remain satisfied in accordance with subparagraph (5).
(2) The criterion in this subparagraph is met where F was on 16th July 2012 a person with a permanent right to reside in the United Kingdom under the 2006 Regulations."
19. Paragraph 2(2) of Schedule 3 places the spotlight on Mrs H. It is clear that on the operative date, 16 July 2012, Mrs H, being a person of dual British and Irish nationality, did not have the status of "a person with a permanent right to reside in the United Kingdom under the 2006 Regulations [my emphasis.] this does not appear to be contested by the Appellant. However, the Appellant raises an issue based on one of the Secretary of State's policies, namely a transitional policy annexed to the European Case Work Instructions and taking effect on 20 June 2011. This policy contains the following statement:
"These arrangements apply only to EEA nationals applying for permission residence documentation on the basis of being a student where they have been issued with a registration certificate in that capacity before 20 June 2011."
It is at once apparent that this policy at no time applied to Mrs H since there is no evidence that she had either (a) applied for permanent residence documentation qua student or otherwise or (b) been issued with a registration certificate in her capacity of student prior to 20 June 2011. Furthermore, I agree with the submission of Mr Matthews that this policy was designed to protect a specific class of students, namely those who before 20 June 2011 had been issued with a student's registration certificate without having been required to demonstrate proof of comprehensive sickness insurance. That this proof was not, in practice, required by the Secretary of State prior to 16 July 2012 is not in dispute and was, presumably, the product of either a deliberate policy decision or laxity on the part of case workers or, perhaps, a combination of both.
20. The submissions of Mr Ndbuisi on behalf of the Appellant also contained a passing reference to paragraph 2(3) of Schedule 3 to the 2012 Regulations. It is clear that the Appellant, being the person to whom this provision is directed (qua asserted family member of Mrs H), cannot satisfy these criteria as there is no evidence that on the operative date, 16 October 2012, he held a valid registration certificate or registration card issued under the 2006 Regulations or had an outstanding undetermined application for same or had an outstanding undetermined appeal against a refusal of such application.
21. In summary, on the grounds and for the reasons elaborated above, the Appellant's reliance on the EEA Regulations avails him nothing. There is no provision, or combination of provisions, within this discrete legislative code calling into question the legality of the Secretary of State's deportation decision. I am satisfied that section 32(5) of the 2007 Act was correctly invoked. The Appellant's quest for status and protection under the EEA Regulations fails.
22. Having regard to the terms of the Court of Session's interlocutor, the final issue to be considered is Article 8 ECHR. Taking into account the intense statutory intervention in this field during recent years, the reality is that many of the litigants who invoke Article 8 in challenging the legality of a deportation decision do so more in hope than expectation. Notwithstanding, the fact remains that a deportation order which breaches the Article 8 rights of a foreign criminal or other affected family member is unlawful, as the Court of Appeal emphasised recently in VM (Zimbabwe) v Secretary of State for the Home Department [2015 EWCA Civ 1288 at [20]. Citation of authority underlining the potency of the public interest in play is almost unnecessary. This has been repeatedly emphasised by the Court of Appeal, most recently in Secretary of State for the Home Department v CT (Vietnam) [2016] EWCA Civ 488.
23. The Appellant's case, having regard to his sentencing, belongs to the framework of paragraph 398(b) of the Immigration Rules. As the Appellant's son is aged 17 and has resided in the United Kingdom since birth, the two questions which arise are whether it would be unduly harsh for the son to live in Algeria and to remain in the United Kingdom without the Appellant: see paragraph 399(a). The appeal was heard one week before the son's 18th birthday. I shall assume, without deciding, that he is to be treated as a child. It is accepted on behalf of the Secretary of State that it would be unduly harsh for the Appellant's son to move to and live in Algeria. However, it is contended that it would not be unduly harsh for the son to remain in the United Kingdom without the Appellant. In considering this issue I shall accept the Appellant's case at its zenith, as set out in the most recent witness statements provided.
24. The Court of Appeal has provided recent guidance on the correct approach to the "unduly harsh" concept, in MM (Uganda) v Secretary of State for the Home Department [2016] EWCA Civ 450, at [22] - [24], which I have considered.
25. In determining the Article 8 ground of appeal, I have taken the Appellant's case at its reasonable zenith. This has included, in particular, consideration of the most recent evidence adduced on behalf of the Appellant. This evidence describes circumstances of undoubted stress and hardship for all three members of the family concerned - the Appellant, Mrs H and their son, whose 18th birthday has just occurred. I take all of the difficulties into account. I accept that there is a significant, enduring father/son relationship. However, as Mr Matthews has submitted, this relationship must be considered in the context of the Appellant's lifestyle which has been characterised by (inter alia) repeated drug consumption, prolific offending, frequent incarceration and adverse mental health. I further accept the submission that the main adult figure in the son's life is his mother. Furthermore, the Appellant's last offending is of comparatively recent vintage and there is no convincing evidence that his future is likely to differ significantly from his past. On the contrary: the evidence indicates that he has no real insight into the impact of his offending and continually fails to take opportunities to terminate his drug consumption. I consider it more likely than not that were the Appellant to avoid deportation reoffending would occur and he will continue to be an inadequate, under achieving father.
26. My overall evaluative judgement is that on the assumption that paragraph 399(a) of the Rules applies, the Appellant fails to satisfy the "unduly harsh" standard enshrined in subparagraph (ii)(b) by some distance. His proven past and predictable future combine to impel the conclusion that while the impact of his deportation on his son is likely to be adverse, negative and uncomfortable, particularly in the initial stages, it falls well short of scaling the standard prescribed in the Rules.
27. Finally, insofar as the Appellant seeks to bring his case within paragraph 399A of the Rules, I consider that he fails to satisfy all of the criteria enshrined therein. First, he has not adduced sufficient evidence to justify a finding that he has been (a) resident in the United Kingdom for most of his life and (b) lawfully so. Based on the evidence, he has been in the United Kingdom since 1994 and, with the exception of a period of six months in 2000/2001, his presence has been consistently unlawful. Second, having regard to all the evidence about the Appellant's history and criminality in the United Kingdom, I find without hesitation that he is not socially and culturally integrated in this society. Third, there is no evidence to justify a finding that there would be very significant obstacles to his integration into the country of his birth and upbringing. Such evidence as bears on this discrete issue swings in the opposite direction: the Appellant has obtained some qualifications in the United Kingdom, he has family in Algeria, he has been able to undertake some employment in the past and he speaks both Arabic and English.
28. Given my findings and conclusions above, the final question is whether the Appellant has demonstrated very compelling circumstances over and above those specified in paragraphs 399 and 399A of the Rules. In determining this issue I have considered in particular the guidance provided by the Court of Appeal in NA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 662, at [28] - [33] particularly. I can identify no feature of the Appellant's case falling within the "over and above" category. I consider the limited evidence of his adverse mental health insufficient in this respect, bearing in mind the approach in cases such as Razgar v Secretary of State for the Home Department [2004] UKHL 27, at [59] especially and GS (India) v Secretary of State for the Home Department [2015] EWCA Civ 40, at [86] - [87]. The factors of previous medical treatment and medication in the United Kingdom and the concern expressed about the adequacy of the care available to the Appellant in Algeria are, in my judgment, insufficient. The medical opinion that the Appellant would be at risk of serious deterioration in his mental health with possible self-harm in the event of returning to Algeria is counterbalanced by the evidence that relevant drugs and treatment are available there, together with related social services. The very high threshold established by the line of authority exemplified in the decision of GS (India) is plainly not overcome.
29. My omnibus conclusion is that the pressing public interest favouring the Appellant's deportation from the United Kingdom is not displaced. The Secretary of State's decision is in harmony with the relevant provisions of primary legislation and the Rules.

DISPOSAL
30. I dismiss the appeal and affirm the decision of the FtT.
[SEE ADDENDUM BELOW]

THE HON. MR JUSTICE MCCLOSKEY
PRESIDENT OF THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Date: 21 September 2016

ADDENDUM
31. I refer to [15] above. This judgment was scheduled to be promulgated in September 2016. No further submissions from the Appellant's representatives were brought to my attention. Next, the Secretary of State's representative wrote to the Upper Tribunal indicating that no further submissions had been received and filing the Secretary of State's supplementary submissions. Having then delayed for a period of several weeks, to cater for the possibility that there had been some administrative oversight, I proceeded to have the judgment promulgated, on 09 November 2016.
32. This gave rise to a letter dated 15 November 2016 from the Appellant's representatives suggesting that they had indeed compiled further written submissions duly transmitted to the Upper Tribunal by fax and by special post on 26 August 2016. I accept this as a fact. I note the absence of any suggestion that these materials were served on the Secretary of State's representative.
33. Given these developments I considered that the decision promulgated on 09 November 2016 should be set aside under Rule 43(2)(d) of the Tribunal Procedure (Upper Tribunal) Rules 2008 on the ground of "other procedural irregularity in the proceedings". Both parties were invited to treat the judgment promulgated as a mere draft and to make further submissions if desired. Neither did so.
34. The decision is hereby promulgated afresh, the difference between this decision and its predecessor being that I have given careful consideration to the written submissions of the Appellant's representatives previously overlooked. As emphasised above, the period under scrutiny in this appeal is 2001 to 2009. The three statutory requirements in play are rehearsed in [8] and [9] above. In [16] I have stated that there is no evidence whatsoever which would enable the Tribunal to find that either the second requirement (a declaration or other proof of self-sufficient resources) or the third (proof of comprehensive sickness insurance) was satisfied, impelling to the conclusion that Mrs H was not a "qualified person" and, "ipso facto", the Appellant in consequence was not the family member of a qualified person at any material time: see [17] above.
35. The further written submissions of Mr Ndubuisi on behalf of the Appellant contain nothing to warrant a different assessment. The evidential lacunae noted above remain unfilled. Thus my decision is as set forth in [30] above.

THE HON. MR JUSTICE MCCLOSKEY
PRESIDENT OF THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Date: 31 January 2017