Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2022-002691
UI-2022-002692

First-tier Tribunal Nos: EA/13340/2021
EA/14704/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 28 March 2023

UPPER TRIBUNAL JUDGE RINTOUL
UPPER TRIBUNAL JUDGE RIMINGTON

Between

BALDEV RAJ (1)
SARBJIT KAUR (2)
(ANONYMITY ORDER not MADE)
Appellants
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr D Krusher, instructed by Direct Access
For the Respondent: Mrs A Nolan, Senior Home Office Presenting Officer

Heard at Field House on 18 January 2023

DECISION AND REASONS
1. The appellants appeal against decisions of the respondent made on 16 August 2021 and 23 September 2021 respectively. These were decisions to refuse them Family Permits to join their minor daughter in the United Kingdom.
Background
2. The appellants are citizens of India, currently resident in Greece. They are married, and their daughter, Mareena Raj was born there and is a Greek national aged now 11. She has lived in the United Kingdom since 2019, and currently has limited leave in the United Kingdom as she was granted pre-settled status under the EU Settlement Scheme.
3. On 20 May 2021, the first appellant made two applications to join his daughter in the United Kingdom. The first was stated to be made under the Immigration (European Economic Area) Regulations 2016 for an EEA Family Permit; the second was made under Appendix EU (Family Permit) (“EU(FP”) of the Immigration Rules for a European Union Settlement Scheme (“EUSS”) Family Permit. Both of those applications were refused on 16 August 2021.
4. On 20 May 2021, the second appellant also made two applications to join her daughter. As with the first appellant, these were under the EEA Regulations and Appendix EU(FP), for a family permit. Both of the applications were refused on 16 September 2021.
5. In all cases, the refusal notices stated that there was a right of appeal under (in the case of EEA Family permits) the EEA Regulations and pursuant to the Citizens Rights (EU Exit) Regulations 2020 in the case of the refusals under Appendix EU (FP).
6. The appellants lodged appeals against all four decisions. The grounds are framed in terms of the EEA Regulations with particular reference to Chen v SSHD [2004] EUECJ C-200/02 and reg. 15A (7) on the basis that the appellants are their daughter’s primary carer. It is also averred that Zambrano v ONEm [2011] EUECJ C-34/09.is relevant. There is, however, no mention of the Citizens Rights (EU Exit) Regulations 2020 nor either of the permissible grounds set out in those regulations.
7. The appeals were heard together in the First-tier Tribunal which, in a decision promulgated on 29 April 2022, allowed the appeals. That decision was set aside for the reasons set out in a decision of the Upper Tribunal promulgated on 14 October 2022, a copy of which is attached. As is recorded in that decision [6], both the appellants and the Secretary of State agreed that the decision and reasons of the First-tier Tribunal were defective. It was also noted that the First-tier Tribunal judge had not properly addressed jurisdictional issues. The matter was retained in the Upper Tribunal owing to the legal complexity.
8. The Upper Tribunal directed that none of the findings were preserved, and that the respondent should serve a detailed skeleton argument as well as full copies of all relevant policies. The appellants were to serve a reply.
9. In the event, the Secretary of State required additional time to serve her skeleton, which was permitted.
10. The appellants have sent several emails to the Upper Tribunal in connection with the case.
The hearing
11. As a preliminary matter, Mr Krushner sought permission to amend the grounds of challenge to the First-tier Tribunal to include a challenge to the decisions made under Appendix EU (FP) on the basis that they were contrary to the appellant’s rights under the Withdrawal Agreement. In doing so, he accepted that the appellants had no rights under the EEA Regulations as these had been revoked prior to the applications being made.
12. After some probing from the panel, Mr Krushner conceded that the appellants could not succeed on the basis that the decisions were not in accordance with the provisions of the Immigration Rules by which they were made.
13. The core of Mr Krushner’s argument is that the reasoning in Chen was applicable to the circumstances of these appeals as the appellants’ daughter’s right of residence pursuant to article 10.1 (a) of the Withdrawal agreement would have not useful effect, and thus there was an implied right to be joined by her parents, thus giving them rights under the Withdrawal Agreement. He conceded that the appellants themselves could not come within the personal scope of Article 10.1.
14. Mr Krushner submitted further that the implied right was to be interpreted analogously to the right recognised in Chen and that the finding by the First-tier Tribunal that the appellants were her primary carers ought to be preserved. In doing so he invited us to set aside the decision to the contrary
15. Mr Krushner submitted that on that basis, the appellant’s rights under the Withdrawal Agreement were engaged and the appeal should be allowed.
The law
16. The Immigration (Citizens Rights Appeals) (EU Exit) Regulations (“the Citizens Rights Appeals Regulations”) 2020 (SI 2020/61) grant a right of appeal to those refused a permit under Appendix EU (FP). The permissible grounds of appeal are set out in reg. 8. These are:
17. The permissible grounds of appeal are set out in reg. 8 and provide, so far as is relevant:
Reg. 8 - Grounds of appeal
(1) An appeal under these Regulations must be brought on one or both of the following two grounds.
(2) The first ground of appeal is that the decision breaches any right which the appellant has by virtue of-”
(a) [Chapter 1, or Article 24(2), 24(3), 25(2) or 25(3) of Chapter 2] , of Title II, [or Article 32(1)(b) of Title III,] of Part 2 of the withdrawal Agreement,
(3) The second ground of appeal is that-”
(a) where the decision is mentioned in regulation 3(1)(a) or (b) or 5, it is not in accordance with the provision of the immigration rules by virtue of which it was made;
(b) where the decision is mentioned in regulation 3(1)(c) or (d), it is not in accordance with residence scheme immigration rules;
(c) where the decision is mentioned in regulation 4, it is not in accordance with section 76(1) or (2) of the 2002 Act (as the case may be);
(d) where the decision is mentioned in regulation 6, it is not in accordance with section 3(5) or (6) of the 1971 Act (as the case may be) [;]
The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people [our underlining].
18. The Withdrawal Agreement provides, so far as is relevant:
Article 9
For the purposes of this Part, and without prejudice to Title III, the following definitions shall apply:
(a) "family members" means the following persons, irrespective of their nationality, who fall within the personal scope provided for in Article 10 of this Agreement:
(i) family members of Union citizens or family members of United Kingdom nationals as defined in point (2) of Article 2 of Directive 2004/38/EC of the European Parliament and of the Council (5);
(ii) persons other than those defined in Article 3(2) of Directive 2004/38/EC whose presence is required by Union citizens or United Kingdom nationals in order not to deprive those Union citizens or United Kingdom nationals of a right of residence granted by this Part;
Article 10 Personal scope
1. Without prejudice to Title III, this Part shall apply to the following persons:
(a) Union citizens who exercised their right to reside in the United Kingdom in accordance with Union law before the end of the transition period and continue to reside there thereafter;
…
(e) family members of the persons referred to in points (a) to (d), provided that they fulfil one of the following conditions:
(i) they resided in the host State in accordance with Union law before the end of the transition period and continue to reside there thereafter;
(ii) they were directly related to a person referred to in points (a) to (d) and resided outside the host State before the end of the transition period, provided that they fulfil the conditions set out in point (2) of Article 2 of Directive 2004/38/EC at the time they seek residence under this Part in order to join the person referred to in points (a) to (d) of this paragraph;
(iii) they were born to, or legally adopted by, persons referred to in points (a) to (d) after the end of the transition period, whether inside or outside the host State, and fulfil the conditions set out in point (2)(c) of Article 2 of Directive 2004/38/EC at the time they seek residence under this Part in order to join the person referred to in points (a) to (d) of this paragraph and fulfil one of the following conditions:
— both parents are persons referred to in points (a) to (d);
— one parent is a person referred to in points (a) to (d) and the other is a national of the host State; or
— one parent is a person referred to in points (a) to (d) and has sole or joint rights of custody of the child, in accordance with the applicable rules of family law of a Member State or of the United Kingdom, including applicable rules of private international law under which rights of custody established under the law of a third State are recognised in the Member State or in the United Kingdom, in particular as regards the best interests of the child, and without prejudice to the normal operation of such applicable rules of private international law (7);
19. Articles 2 and 3 of Directive 2004/38 provide:
Article 2
For the purposes of this Directive:
1) "Union citizen" means any person having the nationality of a Member State;
2) "Family member" means:
(a) the spouse;
(b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State;
(c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b);
(d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b);
3) "Host Member State" means the Member State to which a Union citizen moves in order to exercise his/her right of free movement and residence.
Article 3
Beneficiaries
1. This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.
2. Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:
(a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;
(b) the partner with whom the Union citizen has a durable relationship, duly attested.
The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.
Discussion
20. As noted above, there are two sets of decisions in these appeals. Before considering the merits of any appeal, it is essential to consider whether there is a right of appeal against either set of decisions, and the scope of any such right.
Is there a right of appeal under the EEA Regulations?
21. The EEA Regulations as they were revoked in their entirety on 31 December 2020 by paragraph 2(2) of Schedule 1(1) to the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020. They were, however, preserved for certain purposes by The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations (SI 2020 1309), (“the EEA Transitional Regulations”); the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 (“the Citizens Rights Regulations”); and, the Citizens’ Rights (Restrictions of Rights of Entry and Residence) (EU Exit) Regulations 2020 which are not relevant to the fact of this case; they preserve the rights of those resident in the United Kingdom facing removal.
22. Mr Krushner accepted that, as the Secretary of State submitted, there was no appeal possible under the EEA Regulations as they were revoked and that the EEA Transitional Regulations did not apply here.
23. Mr Krushner accepted also that these were not appeals to which reg. 4 the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 applied. For the sake of completeness, Reg 3 of those regulations established that the parts of the EEA Regulations which are preserved by regs 5 to 10, have effect only in relation to a “relevant person” which is defined as follows:
“relevant person” means a person who does not have (and who has not, during the grace period, had) leave to enter or remain in the United Kingdom by virtue of residence scheme immigration rules and who—
(a) immediately before IP completion day—
(i) was lawfully resident in the United Kingdom by virtue of the EEA Regulations 2016, or
(ii) had a right of permanent residence in the United Kingdom under those Regulations (see regulation 15), or
(b) is not a person who falls within sub-paragraph (a) but is a relevant family member of a person who immediately before IP completion day—
(i) did not have leave to enter or remain in the United Kingdom by virtue of residence scheme immigration rules, and
Either—
(aa) was lawfully resident in the United Kingdom by virtue of the EEA Regulations 2016, or
(bb) had a right of permanent residence in the United Kingdom under those Regulations (see regulation 15
24. The respondents cannot come within (a) as they were not lawfully resident in the UK immediately prior to 31 December 2020 (IP completion day). They cannot come within (b) either because their daughter did have leave under the residence scheme rules; that was granted on 20 November 2020.
25. In the light of these observations, we consider that Mr Krushner was correct to make these concessions. That said, it is unclear why the Secretary of State considered the applications under regulations (the EEA Regulations) which had by the date of application ceased to have force.
26. Any right of appeal against the decisions purportedly made under the EEA Regulations existed only by operation of those regulations, there is no right of appeal against them.
27. It is axiomatic that a Tribunal can only consider an appeal when it has jurisdiction to do so. The issue of jurisdiction cannot be agreed between the parties, nor can an act or concession by the Secretary of State create or confer jurisdiction; that can only be done by legislation; either the Upper Tribunal (or for that matter the First-tier Tribunal) has jurisdiction or it does not. It follows, therefore, that a judge should consider, if only briefly, if there is a right of appeal against the impugned decision or decision before the Tribunal and if so, the scope of that right of appeal. That did not occur in these appeals; and, given that it was known that the EEA Regulations had been revoked, much greater care should have been taken to identify the basis on which the judge then proceeded to determine the appeal.
Is there a right of appeal under the Citizens Rights Appeals Regulations?
28. Neither party submits that there is no right of appeal under the Citizens Rights Appeals Regulations against the decisions to refuse to issue family permits under Appendix EU (FP) although the Secretary of State submits that an appeal simply cannot succeed. There are two possible rights of appeal under reg 8 – was the decision under challenge contrary to any right conferred by the Withdrawal Agreement or was it contrary to the immigration rules set out in Appendix EU (FP).
29. The parties are in agreement that the respondents do not meet the requirements of Appendix EU(FP) as it is conceded that they are not dependent parents; the position would be different if they were dependent parents, that is, dependent on their child so long as they met the requirements of being the family members of a relevant EU national through being dependent parents, as defined.
30. The appellants accept that there is no basis on which they can apply under Appendix EU or Appendix EU (FP) to enter the United Kingdom, a position accepted by the Secretary of State. In passing we note that they cannot come within paragraph EU 14 of Appendix EU as they do not meet the definition of a person with a derivative right to remain and they do not meet the requirement to have been resident for a continuous qualifying period in the United Kingdom
Do the respondents come within the provisions of the Withdrawal Agreement?
31. Mr Krushner submitted that the respondents fall within the personal scope of the Withdrawal Agreement; and, in the alternative, that it can be implied that they do as unless they are permitted to join their daughter who clearly does fall within the scope of the agreement, her right to remain here would be rendered ineffective.
32. We accept that the respondent’s daughter falls within the personal scope of the Withdrawal Agreement. She comes within the ambit of article 10.1 (a) as a union citizen who had exercised her right to reside.
33. It is not submitted that the respondents could fall within any provision other than Article 10.1 (e) (ii). While they appeal to come within the first sentence of that article as they are the family members of a person (their daughter) who comes within Article 10.1 (a), they cannot fulfil any of the conditions set out at 10.1 (e) (i) to (iii) as they did not reside in the host state (the UK) nor are they residing here; nor are they the children of a person who comes within Article 10.1 (a) to (d).
34. Mr Krushner submits that the respondents come within 10.1 (e)(ii); or, that the provision should be read in such a manner that they do, to give effect to daughter’s rights of residence.
35. We disagree. The first sentence of Article 10.1 (e) encompasses a large group of people as it refers to family members as defined in Article 9. That includes those who fall within Article 2(2) of Directive 2004/38 and persons “other than those defined in article 3(2) of that Directive whose presence is required in order not to deprive those Union citizens or United Kingdom nationals, or a right of residence granted by this part.”
36. The effect of the second clause is to exclude “beneficiaries”, including durable partners, from the definition of family member. We consider that was deliberate, as can been seen from the provisions set out in Articles 10.2. 10.3 and 10.4 which make express provision for those in that cohort whose residence had been facilitated and to permit durable partners who had been outside the host state at the end of the transition period to enter. We consider that is consistent with a scheme to preserve existing rights at that point.
37. Turning to the conditions in Article 10.1(e), these have the effect of limiting significantly the group of those who fall within the definition of “family member” and confines significantly those who fall within Article 3.2.
38. The respondents do not meet condition (i) as they resided outside the host state; they do not meet condition (ii) as, not being dependent relatives in the ascending line, they are not family members as defined in Article 2.2 of the Directive 2004/38; and, do not meet condition (iii) as they were not the descendants of a person who comes within Article 1 (a) to (d).
39. Mr Krushner submits that, on an analogy with Chen the Withdrawal Agreement must be interpreted so as to give effect to rights it conferred on the child.
40. We are not persuaded that there is any proper analogy here. Article 21 of the TFEU (referred to as Article 18 of the EC in Chen) sets out the fundamental right to reside in another EU state which as the case law demonstrates is not something to be interfered with lightly. That is also the basis of the other derivative rights for non- citizens identified in Zambrano. The Withdrawal Agreement does not set out such a right; rather, its purpose in respect of citizens’ rights is to make provision under domestic law for certain rights which previously existed under EU. These provisions are different.
41. It therefore follows that the appellants cannot come within the personal scope of the Withdrawal Agreement and so cannot argue that they are entitled to the benefits of any rights set out in Article 18 of the Withdrawal Agreement.
42. We pause there to remind ourselves of the available ground of appeal in respect of the Withdrawal Agreement. We find that the appellants have no rights under that agreement and so any appeal on that ground must fail.
43. The right of appeal set out in reg 8 of the Citizens Rights Appeals Regulations”) 2020 is personal. Reg 8(2) specifically sets out that the first ground of appeal is that the decision breaches any rights which the appellant has. It does not refer to nor encompass rights pertaining to others.
Was the decision in accordance with the rules set out in Appendix EU (FP)
44. In order to succeed under the rules, the appellants must meet the requirements as at the date of application – see EU(FP) 6. They must also satisfy the requirement to be a “family member of a relevant EEA National”. Appendix EU(FP) sets out who is a “family member of a relevant EEA citizen” by reference to a closed list of categories of people. We are here concerned with sub-paragraph (e) of that list, that is, dependent parents of the spouse or civil partner of a relevant EEA citizen.
45. As is accepted, they are not dependent on the child; rather, the dependency is in the other direction and accordingly, they cannot succeed on this ground either.
Conclusion
46. For the reasons set out above, there are no appeals under the EEA Regulations and the appeals under the Citizens Rights Appeals Regulations must fail.

Notice of Decision
1. We remake the decision by dismissing the appeals on all grounds.

Signed Date: 15 March 2023

Jeremy K H Rintoul
Upper Tribunal Judge Rintoul