Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/02577/2019

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 18th November 2021
On 24th January 2022

Before

DEPUTY UPPER TRIBUNAL JUDGE WILDING

Between

Secretary of state for the home department

Appellant
And

SEBUL ALAM

Respondent

(anonymity direction not made)

Representation:

For the Appellant: Mr A Burrett, Counsel, instructed by Londonium Solicitors
For the Respondent: Ms S Cunha, Senior Home Office Presenting Officer

DECISION AND REASONS

1. This is the remaking decision of the appeal of Mr Sebul Alam (who I shall refer to as the appellant in this judgment), a national of Bangladesh, born on 12 March 1981. His appeal was initially allowed by the First Tier Tribunal in a decision dated 25 November 2019.
2. The Secretary of State appealed, and in a decision dated 24 March 2021 Upper Tribunal Blundell found that Judge M B Hussain had materially erred in law and set the decision aside. The matter comes before me to remake the decision.
Error of law decision
3. In his decision, Judge Blundell rejected the Respondent’s first ground of appeal namely that an applicant should exhaust all domestic remedy’s before being able to rely on a Zambrano right.
4. The second ground however did persuade Judge Blundell that there was an error of law, in his decision he says as follows:
27. The second ground of appeal is made out, however. In reaching that conclusion, I have borne carefully in mind the line of authority (at the highest level) of which UT (Sri Lanka) [2019] EWCA Civ 1095 is a part. I recognise that the FtT is an expert Tribunal; that it should be assumed that it knows the law in its specialised area; and that I should not interfere with its decision simply because I disagree with it, or think that I can produce a better decision. Similar points were made in an Article 8 ECHR context in Lowe v SSHD [2021] EWCA Civ 62.
28. It is readily apparent from the judge’s decision that he overlooked the clear distinction drawn domestically and by the CJEU between the TCNs who care for EU citizen children and those who care for EU citizen adults. The point was made clearly at [65] of KA v Belgium:
As regards, first, the cases in the main proceedings where the respective applicants are K.A, M. Z. and B.A., it must, at the outset, be emphasised that, unlike minors and a fortiori minors who are young children, such as the Union citizens concerned in the case that gave rise to the judgment of 8 March 2011, Ruiz Zambrano (C-34/09, EU:C:2011:124), an adult is, as a general rule, capable of living an independent existence apart from the members of his family. It follows that the identification of a relationship between two adult members of the same family as a relationship of dependency, capable of giving rise to a derived right of residence under Article 20 TFEU, is conceivable only in exceptional circumstances, there could be no form of separation of the individual concerned from the member of his family on whim he is dependent.
29. Irwin LJ (with whom Lindblom and Thirlwall LJ agreed) made the same point at 81 of Patel in the Court of Appeal:
I recognise the force of the submission that, if state provision in terms of medical or social services care is both a right of the dependent adult and in fact available, then the class of dependent adults who can demonstrate compulsion to follow a non-British carer abroad may be limited. I also recognise that devotion to and care of elderly, frail parents is to be applauded and praised, not condemned. It is clear that Mr Patel is to be praised for his admirable acre of his parents. But I do not see any error in the legal approach taken by either the F-tT or the UT in this case. the question remains compulsion.
30. Lady Arden JSC underlined the correctness of that focus throughout her judgment when Patel went on appeal, nothing at [1], that the case ‘was about the nature and intensity of the compulsion’ with which an EU citizen is faced upon the removal of their carer. Lady Arden (with whom the remaining Justices agreed) accepted the submission made by the SSHD, at [20], that it could only properly be said to be desirable that Mr Patel should reside in the UK to be with his parents (one of whom was dependent on dialysis). At [27], Lady Arden rejected the central submission made by Mr Patel, which was that Chavez Vilchez had relaxed the level of compulsion required in the case of adults. Mr Patel’s appeal was consequently dismissed.
31. Applying these dicta to the present case, I accept the submission made by Mr Avery that the judge took the wrong starting point in this case. He failed to appreciate that it was only in exceptional cases that a care-for EU citizen adult would be compelled to leave the UK by the removal of her carer. He showed no awareness of that principle, or of the distinction drawn by the domestic and European Court between the two types of cared-for EU citizens.
32. A further error followed, in that the judge went on to speculate about the care which would be provided by the state. As Mr Avery noted in his submissions, the appellant and his parents have made no enquiries about the care which might be available from the state. There was simply no evidence before the judge in that respect. He was in no position, as a matter of evidence, to assess whether there would be a shortfall in the care provided by the state as compared to the care provided by the appellant. critically, therefore, he was also in no position to assess whether the extent of any such shortfall would result in the appellants parents being compelled to leave the EU. To use the language of Lady Arden in Patel, the judge failed to perform anything other than a speculative analysis of the nature and intensity of the compulsion which might be brought about by the removal of the appellant.
5. Judge Blundell preserved the finding that the appellant was the primary carer of his parents, but that the remaining question in the appeal was whether the appellant’s removal would compel his elderly parents to leave the EU needed to be answered on the proper footing.
The hearing
6. Following his error of law decision in Spring 2021, the matter was listed before Judge Blundell in October 2021, however at that hearing counsel for the appellant on that occasion, Mr David Lemar, applied for an adjournment due to no updating evidence being produced by the appellant. The matter was adjourned for a month to allow for updating evidence to be provided.
7. The appellant’s representatives wrote to the Tribunal on the 10th November requesting an adjournment, the grounds of which were:
7. Afterwards, the appeal was listed for a substantive hearing at the Upper Tribunal on 20 October 2021. However, during the proceedings of the hearing, it appeared that there have been no updated medical documents of the Appellant’s elderly parents. Moreover, there was also no evidence as to what care would be provided by the State to the Appellant elder parents which is extremely important for assessing whether the Appellant’s parent would be compelled to leave the UK if Appellant is removed from the UK. Considering the absence, of the above-mentioned evidence, the court granted an adjournment until 18 November 2021.
8. Immediately after the adjournment, the Appellant did write to the relevant Council (i.e. Tower Hamlets) enquiring the care which the council will provide to the Appellant’s elderly parents if he is not present in the UK. The relevant Council informed the appellant that there is a queue and he needs to wait until his elderly parents can be dealt by them. They further informed that, the relevant Council will conduct an assessment of the Appellant’s parents in due course and only then they can get back with what support they will offer to the Appellant’s elderly parents.

9. The Appellant believes that the whole process would take a further 2 months’ time. Considering the significant importance of these evidence in correct and fair disposal of the matter in issues, we are now seeking an adjournment of the hearing until 16 January 2022. We humbly submits that if the hearing is not adjourned the Appellant would be seriously prejudiced and it will be against the interest of justice.
8. I refused this application pre-hearing for the following reason:
The appellant has had some considerable time since the error of law decision in the Spring, and then another month since the adjourned hearing to obtain and adduce all of the evidence he wishes to in order to advance his claim. That is sufficient time in my view and to adjourn again, bearing in mind the unidentified period of time the council requires, it would not be in the interests of justice to adjourn once more.
9. At the hearing Mr Burrett, on behalf of the appellant, re-applied for the case to be adjourned. The basis of this application was that the appellant’s required further time to obtain evidence from Tower Hamlets as to the care available to the appellant’s parents. Put bluntly Mr Burrett argued that there had been insufficient time and that medical evidence may be required which has not been obtained thus far. There were also no updated witness statements and they would be required.
10. Ms Cunha remained neutral on the application. She did however observe that whilst the Respondent, and Tribunal, would benefit from updated witness statements, there was no reason why this had not been completed, there had also been no prior indication that a medical report would be obtained. The appellant and his representatives have had sufficient time to collate and produce all the relevant evidence.
11. I refused the application. The appellant and his representatives had had more than sufficient time from the error of law decision to obtain all the relevant evidence and file it with the Tribunal. Despite Mr Burrett’s best efforts, he could provide no reason as to why it had not been produced by the date of the haring before me, and no timetable was provided for it’s further production should the matter be adjourned.
12. In my view the overriding objective and the interests of justice required this appeal to be determined. The appellant and his parents were present at the Tribunal and could give updating oral evidence.
13. I heard evidence from the appellant and his parents. A note of which is found in the record of proceedings.
14. I then heard submissions from both representatives, again a note of which is found in the record of proceedings. At the end of her submissions Ms Cunha made submissions relying on Velaj (EEA Regulations - interpretation; Reg 16(5); Zambrano) [2021] UKUT 235, Mr Burrett was not aware of the authority and asked for time to put submissions before the Tribunal. I gave Mr Burrett 5 days to put any document in writing.
15. No response was received by the 14th December 2021, however following communication from the administrative staff, Mr Burrett forwarded on a short note that he had sent his instructing solicitors on the 22nd November however which had not been sent on to the Tribunal. In that note Mr Burrett highlighted that following Geci (EEA Regs: transitional provisions, appeal rights) Albania [2021] UKUT 285 (IAC) no jurisdictional issue arose.
Findings and reasons
16. The first issue to determine is the jurisdictional issue which Ms Cunha raised. She relied on Velaj (EEA Regulations - interpretation; Reg 16(5); Zambrano) [2021] UKUT 235 (IAC) to argue that there was no jurisdiction for the tribunal to entertain an argument under Regulation 16 following the UKs withdrawal from the EU and the ending of the transitional period:
(1) In considering a piece of legislation designed to implement European law, a purposive construction should be adopted as set out in Marleasing S.A v LA Commercial Internacional de Alimentacion S.A. [1992] 1 CMLR 305 and applying the principles set out in British Gas Trading Ltd v Lock and Anor [2016] EWCA Civ 983 at [38].
(2) Where implementing legislation goes beyond what is required by a Directive or to ensure compliance with rulings of the Court of Justice, there is no imperative to achieve a “conforming” interpretation, but a careful analysis must be undertaken to determine if it was intended that the implementing legislation was to go beyond what flows from the Directive; in any event, the same means of construction set out in (1) must apply.
(3) On that basis, in construing reg. 16 (5) of the Immigration (European Economic Area) Regulations 2016 (“the EEA Regulations”), a purposive approach must be followed, bearing in mind also that the question of whether a child would be compelled to leave is a practical test to be applied to the actual facts and not to a theoretical set of facts (Patel v SSHD) [2019] UKSC 59 at [30] (applying Chavez-Vilchez [2017] EUECJ C-133/15). That is a necessary corollary of the use of “unable” in reg. 16(5).
(4) In order to meet the requirements of reg 16(5), the key issue is inability to reside in the United Kingdom which requires a detailed consideration of the circumstances of both carers.
(5) The EEA Regulations were revoked on 31 December 2020. Schedule 3 of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations (SI 2020/1309) sets out those parts of the EEA Regulations preserved for immigration (but not social security) purposes; reg.16 is not one of the provisions preserved.
17. Mr Burrett’s counter to this was that the Upper Tribunal in Geci (EEA Regs: transitional provisions, appeal rights) Albania [2021] UKUT 285 (IAC) set out the provisions which preserved the appeal rights for appeals which were initiated prior to the end of 2020.
12. Paragraph 5 of Schedule 3 to the EEA Transitional Regulations makes provision for the appeal rights and appeals pending as at the date of revocation of the EEA Regulations as follows:

5.-” Existing appeal rights and appeals
(1) Subject to sub-paragraph (4), the provisions of the EEA Regulations 2016 specified in paragraph 6 continue to apply-”
(a) to any appeal which has been brought under the Immigration (European Economic Area) Regulations 2006 and has not been finally determined before commencement day,
(b) to any appeal which has been brought under the EEA Regulations 2016 and has not been finally determined before commencement day,
(c) in respect of an EEA decision, within the meaning of the EEA Regulations 2016 , taken before commencement day, or
(d) in respect of an EEA decision, within the meaning of the EEA Regulations 2016 as they continue in effect by virtue of these Regulations or the Citizens' Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 , which is taken on or after commencement day.
(2) For the purposes of paragraph (1)-”
(a) an appeal is not to be treated as finally determined while a further appeal may be brought and, if such a further appeal is brought, the original appeal is not to be treated as finally determined until the further appeal is determined, withdrawn or abandoned; and
(b) an appeal is not to be treated as abandoned solely because the appellant leaves the United Kingdom.
(3) The revocation of the EEA Regulations 2016 does not affect the application of the Immigration (European Economic Area) Regulations 2006 to an appeal that falls within paragraph 3(1) of Schedule 4 to the EEA Regulations 2016 .
(4) The provisions specified in paragraph 6 do not apply to the extent that the provisions of the EEA Regulations 2016 specified in paragraph 6 continue to apply to an appeal or EEA decision by virtue of the Citizens' Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 .
18. The present appeal is of some vintage, having been initiated in 2019, therefore this appeal was outstanding as of commencement day, and consequently there is a right of appeal.
19. The central question in this appeal, given that the appellant is the primary carer of his parents, both of whom are British Citizens, is if the appellant was removed from the UK, would his parents be compelled to leave.
20. Judge Blundell’s decision very helpfully sets out the relevant legal framework for the assessment for an adult family member who is being cared for by a third country national (‘TCN’) family member.
21. As is well established the question whether a primary carer should be removed or not is whether such a decision would lead to the British national being compelled to leave the European Union.
22. There is limited evidence before me provided by the appellant which points to his parents being unable to be cared for should he leave the UK. In fact the evidence provided principally speaks to the appellant being his parents primary carer.
23. A short bundle of documents was provided for the hearing which contained:
(i) The appellant’s parents medical records
(ii) Hospital appointments for his father
(iii) Application to Tower Hamlets to assess his parents care needs
(iv) Letter from Mr Hoque, a support worker with Tower Hamlets Linkage Plus
(v) A letter from Councillor Ayas Miah
(vi) Letter from the mosque
24. The oral evidence of the appellant was that in his view unless he was in the UK his parents would not be able to live. He currently lives with them, sleeping on their floor to ensure he is around. In his view their health is worse than it was when his appeal was hearing in 2019. He said t hat if he had to go to Bangladesh, his parents cannot live on their won, as they need medical support here.
25. I bear in mind the expectation that it would only be an exceptional case where an adult family member would be compelled to leave the UK if their family member had to leave. I note that the phrase “only in exceptional circumstances” is not a legal test but an expectation.
26. That said, in this case I do not consider that the appellant’s parents would be compelled to leave the UK were he to be removed to Bangladesh. The appellant has clearly been devoted to his parents, and has cared for them as best as he can, seeing to their various needs, as a caring, loving and dutiful son. However in this case the evidence simply does not support the assertion that they would be compelled to leave the UK.
27. Over the course of their various medical treatments the appellant, and other friends and family members have taken them to medical appointments, for example Georgia Costa’s report notes that a grandson of theirs has attended appointments with them. The appellant’s sister lives in the UK, and has 7 children of varying ages. It is said that she is in no position to care for her parents, however I find this evidence somewhat surprising. I find it more likely that the appellant’s sister cannot care for her parents in the same way as the appellant does, however the evidence does not go so far, in my view, to establish that if the appellant was removed his sister could not and indeed would not be in any position to assist if necessary.
28. The documentary evidence all identifies that the appellant’s parents have not sought, let alone applied for, carers through the local authority or elsewhere. This in my view is striking. There is nothing within the evidence which would suggest they, as adult British citizens would not be able to obtain support and care in the UK. It would not be their son, but nor does it have to be their son.
29. The letters provided for this hearing from the Community Partnerships Officer, Shahanara Akhtar identifies two organisations commissioned by Tower Hamlets for those over 65 with activities to help their health and well being. There is no evidence that these activities are not available to the appellants parents.
30. The letter from Joynul Hoque at LinkAge plus highlights that his parents are in receipt of higher rate attendance allowance.
31. It is said that the appellant’s father is suffering from dementia, however there is no medical diagnosis of such. I find that the medical evidence before me is inadequate to allow me to properly consider what care the appellant’s parents actually require. That their son cares for them tells me nothing as to what their needs actually are.
32. Joynul Hoque’s letter corroborates the care that the appellant gives to his parents, but it is not a medical letter identifying their specific needs. I do however note that they are in receipt of a higher rate allowance due to their needs. However the fact that Lin Age plus are not only aware of the appellant’s parents but is an organisation which is working with them.
33. On the evidence before me, there is little to support the submission that the appellant’s parents would be compelled to leave the UK were he to be removed. There is nothing in the evidence which suggests they could not access care in the UK as British Citizens, and should the appellant be removed they would not be compelled to leave the UK.
34. If I had not found that the appellant’s parents would not be compelled to leave the UK, then I would in any event have not been able to allow the appeal for lack of jurisdiction.
35. For all of the above reasons I dismiss this appeal.

Notice of Decision

The appeal is dismissed

No anonymity direction is made.

T.S. Wilding

Date 16th December 2021
Deputy Upper Tribunal Judge Wilding