Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Case No: UI- 2022-002995
First-tier Tribunal No: EA/15385/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 28 March 2023

Before

UPPER TRIBUNAL JUDGE KEITH
DEPUTY UPPER TRIBUNAL JUDGE WOODCRAFT

Between

Secretary of State for the Home Department
Appellant
and

Jurken Isaku
(NO ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Appellant: Mr T Melvin, Senior Home Office Presenting Officer
For the Respondent: Mr S Kerr, in-house Counsel, Karis Solicitors

Heard at Field House on 19 January 2023

DECISION AND REASONS
Background
1. This is an appeal by the Secretary of State, who was the respondent before the First-tier Tribunal, against the decision of First-tier Tribunal Judge Symes (the ‘FtT’). To avoid confusion, we will continue to refer to the appellant as the Secretary of State, and Mr Isaku as ‘the Claimant’. In the appealed decision, promulgated on 13th April 2022, the FtT allowed the Claimant’s appeal under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020, against the Secretary of State’s decision on 21st October 2021 to refuse the Claimant’s application on 6th May 2021 for pre-settled status under Appendix EU of the Immigration Rules. In the refusal letter, the Secretary of State noted that records did not show the Claimant had been issued with a family permit or residence card under the Immigration (EEA) Regulations or other valid document, as a durable partner of an EEA national. To meet the requirements of Appendix EU, the Secretary of State concluded that the Claimant needed to hold a valid relevant document.
2. The Claimant appealed on 4th November 2021 in very brief terms, specifically that the Secretary of State had failed to engage with his representative’s request for her to exercise discretion, given that he was now married to his sponsoring wife.
The FtT’s decision
3. The FtT regarded the Claimant’s and sponsor’s evidence as consistent and plausible (paragraph [11]). That account was that the couple had met in September 2019, formed a relationship, moved in together in January 2020 and became engaged in the summer of 2020. They gave notice to the Islington register office on 7th September 2020 of their intention to marry and received clearance from the Secretary of State, but only on 9th December 2020. Because of administrative delays caused by the Covid pandemic, they were only able to marry on 14th April 2021 (See paras [2] to [4]).
4. At para [12] onwards, the FtT recited the law as he understood it. He considered paragraph EU11 of Appendix EU, which included the definition of a ‘family member of a relevant EEA citizen’ as including a durable partner, where the couple had lived together in a relationship akin to a marriage for at least two years and the person held a ‘relevant document.’ The FtT noted that the Claimant was entitled to pursue a ground of appeal, relying on the Withdrawal Agreement, as per the 2020 Regulations, and that Article 10 of the Withdrawal Agreement included, as in scope, family members of Union citizens, provided that they had resided in the host state in accordance with Union law. Article 10(3) included those who had applied for facilitation of entry and residence before the end of the transition period (31st December 2020).
5. The FtT went on to cite Article 18 and the “Issuance of residence documents” and the provision of redress procedures where an applicant had been refused a grant of residence status. However, as the FtT correctly noted, the definition of a “durable partner” required not only two years’ cohabitation or other significant evidence, but also at least an application for a ‘relevant document,’ such as a family permit or residence card.
6. At para [17], the FtT recognised that the couple had not applied for an EEA residence card prior to 31st December 2020, although they had done all they could to marry before that date. At para [18], the FtT considered the procedural protections in the Withdrawal Agreement which might be relevant, including a requirement of proportionality, and the need for simple and transparent procedures. The FtT stated that the difficulty was that the procedural protections could only avail the Claimant if he could show that he was within the personal scope of the Withdrawal Agreement. The FtT cited Article 4(3) for the proposition that the Withdrawal Agreement “shall be interpreted and applied in accordance with the methods and general principles of EU law”. The FtT concluded that bearing in mind that EU law generally receives a purposive interpretation, where the couple had done everything within their power to obtain protection, and where the administrative procedures for applications were anything other than “smooth, transparent and simple,” giving a purposive approach to the Withdrawal Agreement, they should not be denied protection simply because of administrative obstacles that stood in their way. The FtT allowed the Claimant’s appeal at para [21], on the basis that the Secretary of State’s decision was incompatible with the Withdrawal Agreement.
The grounds of appeal and the grant of permission
7. The Secretary of State appealed on 25th April 2022, on the basis that the Withdrawal Agreement provided no applicable rights to the Claimant. Article 10(1)(e) confirmed that only those residing in accordance with EU law at the specified date would be beneficiaries under the Agreement. The Claimant was not so residing, as he had not applied to have his residence facilitated before the implementation date. Therefore the Claimant did not come within the scope of the Withdrawal Agreement and had no entitlement to judicial redress under Article 18(1). The grounds also referred to an error based on the FtT’s decision considering a breach of the sponsoring spouse’s rights, although this ground does not appear to be relevant to the FtT’s decision.
8. FtT Judge Scott granted permission on 25th May 2022. The grant of permission was not limited in its scope.
The hearing before us and our decision on whether the FtT erred in law
9. We explored with the parties at the beginning of the hearing the authority of Celik (EU exit; marriage; human rights [2022] UKUT 220 (IAC). We do not recite the representative’s skeleton arguments, which we have considered in full. Mr Kerr recognised that his argument mirrored the FtT’s reasons, and that if we found that those reasons contained an error of law, his arguments would also fail.
10. On the one hand, the FtT accepted the import of Articles 10 and 18, that only durable partners who met both limbs, namely cohabitation or other significant evidence; and the ‘procedural quality’ of having obtained or at least applied for a relevant document fell within the scope of the redress provisions. The FtT’s attempts to resolve the conundrum, by giving what he termed a ‘purposive approach’ to the Withdrawal Agreement, were based on the premise that the Claimant and his sponsor had done everything within their power to obtain the protection of EU law. That was the first error, as this premise was not correct. The Claimant could have applied for facilitation as a durable (unmarried) partner by 31st December 2020 and thereby gain the full protection of the redress procedures. He did not. Second, rather than applying a purposive approach, the FtT expanded the scope of redress, clearly beyond that specified in the Withdrawal Agreement. The FtT fell into the trap, as this Tribunal identified in Celik at paras [58] and [65], of rewriting the Withdrawal Agreement. In doing so, he erred in law.
11. There is no suggestion the Claimant had applied for facilitated entry or residence and in the circumstances, the FtT’s analysis by reference to the Withdrawal Agreement was an error of law. As a consequence, his decision is unsafe and cannot stand.
12. However, we were also invited by both representatives to preserve the FtT’s findings of fact in their entirety. In setting aside the FtT’s decision, we preserve his findings.
13. We canvassed with the representatives whether we should retain remaking in the Upper Tribunal or remit back to the First-tier Tribunal. Both were agreed that we should retain remaking. We have considered each of paragraphs 7.2(a) and (b) of the Senior President’s Practice Statements. The effect of the FtT’s error had not been to deprive a party of a fair hearing nor was there any additional judicial fact-finding necessary. We therefore retained remaking in the Upper Tribunal.
Remaking decision on the Claimant’s appeal
14. Both representatives invited us to remake the appeal today. The Claimant relied on no additional written evidence, nor was any oral evidence given. We note the preserved findings. Mr Kerr accepts that on the basis of the law as it was understood in Celik, (as to which he makes no concession that it is correct but advances no argument as to why we should not apply Celik), the Claimant’s appeal must be dismissed.
15. In the circumstances, we apply the guidance in Celik and dismiss the Claimant’s appeal.

Notice of Decision
The decision of the First-tier Tribunal contains material errors of law and we set it aside, subject to preserving the FtT’s findings in their entirety.
We remake the appeal by dismissing the Claimant’s appeal.
No anonymity direction is made.

Signed J Keith Date: 27th January 2023
Upper Tribunal Judge Keith