Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2021-001640
(FtT ref EA/02057/2021)

THE IMMIGRATION ACTS

Heard at George House, Edinburgh
On the 25 May 2022
Decision & Reasons Promulgated
On the 15 June 2022

Before

UT JUDGE MACLEMAN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

NOR AIZAI BINTI ABD AZIZ
Respondent

For the appellant, Mr A Mullen, Senior Home Office Presenting Officer
For the respondent, no legal representative; respondent and sponsor present

DETERMINATION AND REASONS
1. Parties are as above, but the rest of this determination refers to them as they were in the FtT.
2. FtT Judge Raymond allowed the appellant’s appeal by a decision promulgated on 16 July 2021. As succinctly put at [1] of that decision, this was an appeal by a citizen of Malaysia, married to a UK citizen, Mr Paul Fraser, against refusal of entry clearance as an accompanying spouse of her husband who had been exercising treaty rights in Bulgaria. This fell within the “Surinder Singh route”, now embodied at paragraphs EU12 and EWU14 of Appendix EU of the immigration rules (the “EU Settlement Scheme”, or EUSS).
3. The SSHD’s refusal decision dated 1 February 2021 refers to the need to show that the qualifying British citizen:
… lived for more than three months in the EEA host country and exercised free movement rights there under EU law as a worker, self-employed person or student immediately before returning to the UK ...
4. The decision then says, on page 2:
You state that the qualifying British citizen resided in Bulgaria between 17 December 2019 and 14 March 2020. As this period was not more than 3 months, the definition of qualifying British citizen was not met.
5. The FtT decided the case “on the papers”. Its decision at [4] sets out the explanation offered by the appellant. Mr Fraser was in Bulgaria “setting up a sports therapy business in the winter, and property maintenance in the summer” but went back to the UK because he had a job offer which was “too good to refuse”.
6. At [5] the FtT gives its reasons for allowing the appeal:
The imposition of three months residence upon Mr Fraser was misplaced. The three months residence under EU law gave Mr Fraser three months right of lawful residence in Bulgaria, within the freedom of movement available to him, which was being protected (Banger (Unmarried Partner of British National) [2017] UKUT 125 (IAC)). He was not obliged to stay there for three months to be exercising treaty rights, which strictly speaking he could have been required to show he was doing after three months. The imposition upon Mr Fraser within the context of the application was interference with the right of Mr Fraser to move the centre of his life as an EEA national, with his non-EEA national wife, from Bulgaria to the UK, and did not facilitate the provision of a residence authorisation to his partner while he was exercising his freedom of movement (ibid Banger). The refusal does not specifically identify why the three months should be imposed.
7. The SSHD sought permission to appeal, on these grounds:
The Judge of the FtT has made a material error of law in the determination in misconstruing the nature of the British sponsor’s time in Bulgaria as being residence as a worker, self-employed person etc under Article 7 of the Directive. The significance of the three month figure is that this is the period permitted by Article 6 of the Directive for initial admission to and residence in the host country but is not residence under Article 7 as specified by the Settlement Scheme rules. Regulation 9(2) – imported to the definition in the Scheme of a “qualifying British citizen” – required that the sponsor was residing in an EEA State as a worker, self-employed person, self-sufficient person or a student, emphasis added) and Mr Fraser was not. That is decisive. Judge Raymond is not wrong to say that Mr Fraser was in Bulgaria pursuant to a Treaty right, but it was not the one required to establish a Surinder Singh claim. The Secretary of State seeks an oral hearing … and asks that the determination be set aside and replaced with one dismissing the appeal.
8. On 12 October 2021 FtT Judge Hollings-Tennant granted permission: …
[2] The grounds assert that the Judge erred by misconstruing the nature of the British sponsor’s time in Bulgaria as establishing a ‘Surinder Singh’ right as it is clear that he was resident there for less than three months. Whilst neither the grounds nor the refusal letter sees fit to specify legal authority for imposing a three month minimum period of residence in an EU Member State before a family member of a British citizen can rely on derived rights, this was confirmed in O and B v Minister voor Immigratie [2014] EUECJ (C-456/12).
[3]. Further, whilst the Judge sets out the evidence as to what the Sponsor said he was doing in Bulgaria, he makes no findings as to whether the Sponsor was in fact exercising treaty rights as a self-employed person nor does he address the question as to whether the residence in Bulgaria was ‘genuine’ in nature.
[4]. ... the grounds have identified an arguable error of law …
9. The principle established since Surinder Singh is that where a British citizen exercised Community rights in another part of the EU or the EEA and returned to the UK with non-national family members, or if such a family member sought to enter the UK to be with the British citizen, such family members were exercising Community as well as national rights of entry, and could not be treated less favourably than required by Community law.
10. The appellant’s case in the UT was presented by the sponsor. There is now a child of the marriage, Lewis Fraser, born on 17 March 2021. Currently the family lives together in the Isle of Bute. The appellant as a citizen of Malaysia was able to enter the UK without a visa requirement. The child is a British citizen. An application made under the “Zambrano” route has been refused and not appealed. Mr Fraser confirmed that he left Bulgaria on his understanding, after speaking to an official of the Home Office, that the 3 month period was a guideline not an inflexible requirement and that there should be no problem. If he had known otherwise, he would have delayed his departure by a few days. In Bulgaria, while exploring possibilities there, he had been self-sufficient. His circumstances remain such as to qualify his wife for a visa, apart from the requirement to apply from outside the UK.
11. Those matters, however, are in the background; the issues raised by the grounds and the grant of permission are whether the sponsor was residing in Bulgaria “as a worker, self-employed person, self-sufficient person or a student”, and whether he had to do so for a strict minimum of 3 months.
12. Mr Mullen in his submissions said that the key point was that the appellant had not established that the sponsor’s residence in Bulgaria was within the terms of article 7 as a self-sufficient person. It was only within the scope of article 6, which automatically entitled him to 3 months’ residence there, but did not give rise to a Surinder Singh right. He also submitted that the 3 month period was fixed in law, and even if the respondent had given misleading information, or contributed to some misunderstanding, that made no difference.
13. I note that the application to the respondent was based on the sponsor’s residence having been as a self-sufficient person. That was not disputed in the refusal decision, which is based on duration and nothing else. There was no reason for Judge Raymond to query it.
14. If this case required the UT to revisit the matter, I would have no difficulty in finding that the sponsor while in Bulgaria was exercising his right of free movement; that he was in fact a self-sufficient person within the meaning of the Directive; that his residence was “genuine” (as opposed to being a contrivance for immigration purposes, or in any way abusive of rights of free movement); and that family life between appellant and sponsor carried on throughout that period. Of course, in the exercise of his rights of free movement, he did not have to be in the category of article 7 until his 3 months in terms of article 6 was up; but that is a different matter.
15. The SSHD’s challenge, in so far as it is based on the appellant not having established that the sponsor was ever in fact a self-sufficient person, fails.
16. I am satisfied that the sponsor left Bulgaria on a genuine understanding that 3 months was only a guideline and his departure was not likely to make any difference, and that he would otherwise have delayed for the few days required. I accept, however, that even if that was due to misinformation, that does not assist the appellant, as a matter of law, if a fixed 3 month minimum period applies.
17. Mr Mullen founded on the respective terms of Articles 6 and 7 on what was required to reside for 3 months in another state and what was required thereafter; but I see nothing there which says that no derivative right can arise until 3 months has expired.
18. Having been given time to look further for authority, Mr Mullen did not refer to any limitation to 3 months, by way of definition of a “qualifying British citizen”, or otherwise. He found no specification in the EUSS, or elsewhere in the immigration rules, or in the Immigration (EEA) Regulations 2016. He did not refer to O and B.
19. The relevant passage in O and B appears to be this:
[52] In that regard, it should be observed that a Union citizen who exercises his rights under Article 6(1) of Directive 2004/38 does not intend to settle in the host Member State in a way which would be such as to create or strengthen family life in that Member State. Accordingly, the refusal to confer, when that citizen returns to his Member State of origin, a derived right of residence on members of his family who are third‑country nationals will not deter such a citizen from exercising his rights under Article 6.
[53] On the other hand, an obstacle such as that referred to in paragraph 47 above may be created where the Union citizen intends to exercise his rights under Article 7(1) of Directive 2004/38. Residence in the host Member State pursuant to and in conformity with the conditions set out in Article 7(1) of that directive is, in principle, evidence of settling there and therefore of the Union citizen’s genuine residence in the host Member State and goes hand in hand with creating and strengthening family life in that Member State.
[54] Where, during the genuine residence of the Union citizen in the host Member State, pursuant to and in conformity with the conditions set out in Article 7(1) and (2) of Directive 2004/38, family life is created or strengthened in that Member State, the effectiveness of the rights conferred on the Union citizen by Article 21(1) TFEU requires that the citizen’s family life in the host Member State may continue on returning to the Member of State of which he is a national, through the grant of a derived right of residence to the family member who is a third‑country national. If no such derived right of residence were granted, that Union citizen could be discouraged from leaving the Member State of which he is a national in order to exercise his right of residence under Article 21(1) TFEU in another Member State because he is uncertain whether he will be able to continue in his Member State of origin a family life with his immediate family members which has been created or strengthened in the host Member State (see, to that effect, Eind, paragraphs 35 and 36, and Iida, paragraph 70).

20. In this case, the sponsor went to Bulgaria with a view to settling and carrying on family life there, which is to say, intending to exercise a right in the longer term under article 7. That was so, irrespective of whether he had a right for 3 months in the first instance under article 6. He did not ultimately rely on article 7 for a right to remain in Bulgaria, but his plan was genuine. He would have been discouraged from it by any adverse effect on his ability to carry on family life in the UK. On the SSHD’s argument, one day of residence under article 7 would have been enough to carry the day, which seems absurd. I do not see in O and B any indication that the change of plan, for good reasons, just before 3 months was up, makes a crucial difference.
21. The grounds and submissions for the SSHD do not persuade me that the decision of the FtT errs on a point of law, such that its decision should be set aside. That decision shall stand.
22. No anonymity direction has been requested or made.

H Macleman

26 May 2022
UT Judge Macleman

NOTIFICATION OF APPEAL RIGHTS
1. A person seeking permission to appeal against this decision must make a written application to the Upper Tribunal. Any such application must be received by the Upper Tribunal within the appropriate period after this decision was sent to the person making the application. The appropriate period varies, as follows, according to the location of the individual and the way in which the Upper Tribunal’s decision was sent.
2. Where the person who appealed to the First-tier Tribunal is in the United Kingdom at the time that the application for permission to appeal is made, and is not in detention under the Immigration Acts, the appropriate period is 12 working days (10 working days, if the notice of decision is sent electronically).
3. Where the person making the application is in detention under the Immigration Acts, the appropriate period is 7 working days (5 working days, if the notice of decision is sent electronically).
4. Where the person who appealed to the First-tier Tribunal is outside the United Kingdom at the time that the application for permission to appeal is made, the appropriate period is 38 days (10 working days, if the notice of decision is sent electronically).
5. A “working day” means any day except a Saturday or a Sunday, Christmas Day, Good Friday or a bank holiday.
6. The date when the decision is “sent’ is that appearing on the covering letter or covering email.