Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/18909/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 29 November 2016
On 4 January 2017

Before

UPPER TRIBUNAL JUDGE CANAVAN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

S O
(ANONYMITY DIRECTION MADE)
Respondent

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Anonymity was granted at an earlier stage of the proceedings because the case involves a child. I find that it is appropriate to continue the order. Unless and until a tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her family. This direction applies both to the appellant and to the respondent.

Representation:
For the appellant: Mr P. Singh, Senior Home Office Presenting Officer
For the respondent: Mr P.V. Thoree of Thoree & Co. Solicitors

DECISION AND REASONS
1. For the sake of continuity I will refer to the parties as they were before the First-tier Tribunal although technically the Secretary of State is the appellant in the appeal to the Upper Tribunal.
2. The following chronology of events will assist in outlining the complex history of the case although some of the exact dates and the details of some events are unclear from the evidence currently before the Upper Tribunal.
April 2001 The appellant, a citizen of Ecuador, first entered the UK with her husband. She says that she entered on a visitor visa.
Oct. 2001 The appellant's son was born in Spain and acquired Spanish nationality. It is not disputed that he is an EEA national.
Nov. 2003 The appellant returned to the UK. The appellant says that she produced her ID card and her son's Spanish passport on arrival but it is unclear on what basis she was granted entry into the UK.
08/07/04 The appellant and her husband applied for EEA residence documents on the grounds of a derivative right of residence as the primary carers of an EEA child.
06/10/04 The respondent refused the application. No copy of the decision has been adduced in evidence so it is not possible to know the exact reasons for refusal. However, Judge Adio's subsequent decision summarises the decision as a refusal to issue an EEA residence document "under Regulation 29 of the Immigration (European Economic Area) (Amended) Regulations 2003 with reference to Regulation 5(1) of the Immigration (European Economic Area) Regulation[s] 2000." The respondent was not satisfied that the child was a 'qualified person' or that the appellant and her husband could be treated as family members or the primary carers of the child.
11/03/06 Immigration Judge Adio allowed the appellant's appeal. He accepted that the appellant's son was an EEA national who was attending school in the UK. The judge found that the Article 12 of regulation 1612/68, as applied by the European Court of Justice in Baumbast v SSHD [2003] INLR 1, applied in this case. The judge went on to consider the case of Chen v SSHD [2005] INLR 1. He was satisfied that the EEA child's non-EEA national parents were both working, albeit without permission, and were able to support the child without recourse to public assistance. He was also satisfied that they had appropriate health insurance. Judge Adio concluded that the effect of Chen was that the appellant and her husband had established a right of residence as the primary carers of an EEA national child.
05/06/06 The respondent's application for reconsideration was refused. No details have been provided of the nature of the application save for reference to it in a later decision made by Immigration Judge Munro, where it was said that the application was refused because it was out of time.
13/11/06 It is said that the respondent issued the appellant with a document recognising a right of residence in the UK but it is unclear from the evidence currently before the Tribunal whether she was issued with an EEA residence card or leave to remain under paragraph 257C of the immigration rules. What evidence there is suggests that an EEA residence card was issued but there is no direct evidence of the fact.
17/12/06 The respondent revoked the appellant's EEA residence card. The card was revoked because the non-EEA national parents were supporting the family through employment that was contrary to their immigration status at the time of the application. The residence documents of the appellant's husband and child were revoked on the ground that the child had ceased to be a 'qualified person'.
05/03/07 Immigration Judge Munro allowed the appellant's appeal. She noted developments in the law since Judge Adio's decision, which included the Court of Appeal decision in W (China) & X (China) v SSHD [2006] EWCA Civ 1494 and the subsequent Asylum and Immigration Tribunal decision in MA & Others (EU national; self-sufficiency; lawful employment) Bangladesh [2006] UKAIT 00090. The decisions post-dated Judge Adio's decision. However, she also observed that it was hard to resist the conclusion that the respondent had done no more than respond to Judge Adio's decision "in a tokenistic manner, and that at the date of issue of those documents he had already decided to revoke them." She concluded that the appellants were entitled to expect residence documents to be issued following Judge Adio's decision, which was not appealed successfully. The appeal was allowed on the ground that the decision to revoke the residence documents was not in accordance with the law. There is nothing to suggest that Judge Monro's decision was appealed.
17/04/07 Again, it is said that the respondent issued the appellant with a document recognising a right of residence in the UK but it is unclear from the evidence currently before the Upper Tribunal whether she was issued with an EEA residence card or leave to remain under paragraph 257C of the immigration rules. However, the respondent's grounds of appeal to the Upper Tribunal appear to suggest that she may have been issued with an EEA residence card.
03/06/11 The appellant became divorced from Rolando Rodrigo Vaca Carrillo.
22/03/12 The appellant applied for a permanent residence card.
02/03/13 The respondent issued a permanent residence card.
08/10/13 The respondent refused a similar application for recognition of permanent residence made by the child's father, Mr Vaca Carrillo. Again, a copy of that decision is not in evidence but the reasons for refusal are summarised in First-tier Tribunal Judge Iqbal's subsequent decision. The respondent was not satisfied that the child's father was a 'family member' for the purpose an application for a permanent residence card. In considering whether he continued to have a derivative right of residence as the parent of an EEA national child the respondent concluded that he was not the primary carer of the child and therefore did not meet the requirements of regulation 15A(4)(a) of The Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations 2006").
27/01/14 First-tier Tribunal Judge Iqbal allowed Mr Vaca Carrillo's appeal on limited grounds. The judge noted that there appeared to be inconsistent decision making given that his ex-wife was issued with a permanent residence card. The judge was satisfied that Mr Vaca Carrillo was fully involved in his son's life and continued to share responsibility for the child. She noted that regulation 15A(7) allowed for shared responsibility for an EEA national child. Despite the fact that it appears that the respondent had already considered whether Mr Vaca Carrillo met the requirements of regulation 15A the judge decided to allow the appeal on the ground that the decision was not in accordance with the law and 'remitted' it to the respondent to give further consideration to the application rather than determining the substantive issues.
14/04/15 The respondent reviewed the appellant's position in light of the First-tier Tribunal decision relating to the child's father and made a decision to revoke the permanent residence card. That decision is the subject of this appeal. The respondent noted that the decision in Chen did not state that the non-EEA national parent of an EEA national child would have a right to reside as a "family member" as defined in EU law. As such she was not entitled to apply for permanent residence. However, a person who claims to have a derivative right of residence can apply for a derivative residence card from within the UK. The respondent admitted that her initial application for recognition of a permanent right of residence was wrongly decided. The application should have been treated as an application for a derivative residence card. Such an application did not give rise to a permanent right of residence. The respondent considered the evidence that was submitted with the original application and decided that the appellant did not qualify for a derivative residence card because there was no evidence to show that they had comprehensive sickness insurance cover in the United Kingdom.
29/06/15 First-tier Tribunal Judge Monaghan allowed the appeal. She summarised the history of the case and the reasons given by Judges Adio and Monro for allowing the previous appeals. She noted that the appellant applied for permanent residence before the enactment of regulation 15A, but unfortunately the application was not decided until nearly a year later, at which point, regulation 15A was in force. Judge Monaghan found that the appellant had been residing in the UK in accordance with the regulations for a continuous period of five years prior to the enactment of regulation 15(1A), which stated that derivative rights of residence do not constitute residence for the purpose of permanent residence under regulation 15. She concluded that the appellant had already acquired a right of permanent residence prior to regulation 15(1A) coming into force. There were no other reasons to justify revoking the permanent residence card. The judge concluded that the decision was not in accordance with the law. She noted that the appellant had comprehensive sickness insurance at the date of the hearing.
25/10/16 The respondent was granted permission to appeal to the Upper Tribunal.
3. The Secretary of State appeals First-tier Tribunal Judge Monaghan's decision on the following grounds:
(i) The judge failed to appreciate that the appellant never was a "family member" for the purpose of the EEA Regulations 2006 and could not qualify for permanent residence under regulation 15.
(ii) The Secretary of State accepts that the effect of the allowed appeal in 2007 should have led to a grant of leave to remain rather than the issue of an EEA residence card. She also accepts that the application for permanent residence made in 2012 should have been considered under regulation 15A rather than regulation 15. She relies on the decision in PF (Nigeria) v SSHD [2015] EWCA Civ 251 to argue that, once a court is satisfied that a mistake has been made, it should be slow to fix a public authority permanently with the consequences of the error.
(iii) The grounds go on to argue that once the Secretary of State recognised the error it was legitimate to revoke the permanent residence card. She recognised that "issues of legitimate expectation, fairness and proportionality may well arise in relation to mistaken decisions which are allowed to persist for some time" but the judge had failed to consider that principle because she mistakenly believed that the appellant had acquired a right of permanent residence.
(iv) The judge's alternative finding that the decision was not in accordance with the law on the ground that the revocation decision was made with reference to regulation 20(2), which gives power to revoke a registration certificate or residence card, rather than regulation 20(3), which gives power to revoke a permanent residence card was not sufficient to find the decision unlawful when the Secretary of State clearly had the power to revoke a permanent residence card.
Decision and reasons
4. There is no suggestion that the appellant has ever acted in anything other than good faith when applying for recognition of rights of residence under EU law. Irrespective of the evolving case law arising out of the landmark decision in Chen, which developed during the course of the appellant's applications for recognition of a right of residence, the essence of the Secretary of State's current argument is that the conditions for recognition of a right of permanent residence could not apply, and have never applied, to the appellant in this case.
5. The appellant applied for recognition of a right of permanent residence following five years residence as the primary carer of an EEA national self-sufficient child. The exact terms of the application are unclear on the limited evidence currently before the Upper Tribunal. At the date of her application in March 2012 the EEA Regulations 2006 had not yet been amended to include provisions relating to derivative rights of residence. However, by the date of the respondent's decision to issue a permanent residence card on 02 March 2013, the EEA Regulations 2006 had been amended to include regulation 15A, which makes clear that periods of derivative residence are not "residence" for the purpose of recognition of a permanent right of residence under regulation 15.
6. The Citizenship Directive and the EEA Regulations 2006 make a clear distinction, which has been recognised in a number of cases, between the rights of "family members" and other relatives including "extended family members". Regulation 7 specifically defines "family members" as the spouse or civil partner, direct descendants of the EEA national or their spouse or civil partner who are under 21 or who are dependent. The definition includes dependent direct relatives in the ascending line. In contrast, regulation 8 makes clear that "extended family members" are not "family members" within the meaning of regulation 7 and sets out a number of circumstances in which a person would qualify as an "extended family member" for the purpose of the EEA Regulations 2006. The distinction between the rights accorded to "family members" and those of "extended family members" is echoed the underlying Citizenship Directive.
7. Following the coming into force of the EEA Regulations 2006 it became clear, if it was not before, that a person in the appellant's situation, who was not a dependent direct relative in the ascending line, is not a "family member" within the meaning of EU law. Although the appellant is a relative of an EEA national in the ascending line, she is not dependent upon her son, he is dependent upon her.
8. The wording of Article 16 of the Citizenship Directive and regulation 15 of the EEA Regulations 2006 both make provision for EEA nationals and their "family members" to acquire a right of permanent residence following continuous lawful residence for a period of five years. By virtue of regulation 7(3) "extended family members" who have been issued with an EEA residence card shall be treated as a "family member" so long as they continue to meet the conditions contained in regulation 8. An extended family member, in theory, could accrue a period of five years residence in accordance with the regulations as a "family member" for the purpose of acquiring a right of permanent residence. However, they could only do so if they had been a "family member" by virtue of regulation 7(3) i.e. in possession of a residence card for a period of five years during which time they continued to satisfy the conditions of regulation 8.
9. I have outlined why derivative rights of residence such as those claimed by the appellant do not come within the definition of a "family member" under regulation 7. The appellant was not issued with an EEA residence card as a "family member" or as an "extended family member" and does not meet any of the requirements of regulation 8. In other words, she is not and never has been a "family member" for the purpose of EU law. She cannot meet the conditions required to acquire a right of permanent residence under regulation 15.
10. The fact that a person with a derivative right of residence cannot acquire a permanent right of residence was put beyond doubt by the terms of regulation 15(1A). The provision was introduced by way of an amendment to the EEA Regulations 2006 on 16 July 2012 (SI 2012/1547).
11. As Judge Monaghan observed, the provision was in place at the date of the respondent's decision in March 2013. However, for the reasons explained above, I conclude that the First-tier Tribunal made a material error of law in finding that the appellant had acquired a right of permanent residence before the insertion of regulation 15(1A) because the appellant could not, and never did, qualify as a "family member" for the purpose of regulation 15(1)(b).
12. The respondent acknowledges that the Home Office decision maker issued the permanent residence card in error. Unlike other forms of entry and residence in the UK, which are granted at the respondent's discretion, rights of free movement arise as a result of the function of EU law and are not dependent upon the issuing of a residence document. In other words, the issue of a residence card does not grant an EU law right but acts as recognition of an existing right. In this case the appellant never had a right of permanent residence under EU law. However, the fact that the subsequent revocation seems unfair in general terms does not compel the respondent to accept a right of permanent residence when none existed. In such circumstances it would not be appropriate to fix the respondent with the consequences of the error on a permanent basis.
13. Regulation 20(3) makes clear that the respondent has the power to revoke a document certifying permanent residence if the holder of the certificate or card has ceased to have "or never had" a right of permanent residence under regulation 15. The fact that the wrong provision was mistakenly referred to in the revocation decision is immaterial in circumstances where the respondent clearly had lawful power, and just cause, to revoke the appellant's permanent residence card in circumstances where it became apparent that she never had a right of permanent residence.
14. For the reasons given above I find that the First-tier Tribunal decision involved the making of an error on a point of law.
15. In remaking the decision I have taken into account the express concession made by Mr Patel, on behalf of the Secretary of State, that the appellant nevertheless meets the conditions for a derivative right of residence and should be issued with a derivative residence card. He accepted that the logical consequence of the concession is that the appeal must be allowed under the EEA Regulations 2006 on the ground that she continues to meet the conditions for a derivative right of residence.
16. The respondent recognises that the mistake gives rise to issues of fairness and proportionality. The appellant made an application for permanent residence in good faith albeit that, in law, she could not succeed. The respondent did nothing to rectify the mistake until two years later, during which time the appellant thought she had the security of permanent residence in the UK.
17. The chronology suggests that the appellant is likely to have had lawful residence in the UK for a period of at least 10 years. Her derivative rights of residence are reliant upon her son, who will reach his majority within a few years. Although the appellant is unable to qualify for permanent residence under EU law I note that the respondent's policy guidance on applications for long residence under paragraph 276B of the immigration rules states that lawful residence under EU law may be taken into account for the purpose of an application for Indefinite Leave to Remain under the immigration rules. It is a matter for the applicant to consider, having taken legal advice, whether she wishes to make a formal application for settlement under UK law. The respondent would have to take into account the history of the case and her policy guidance in response to any application.

DECISION
The First-tier Tribunal decision involved the making of an error on a point of law
The decision is remade and the appeal ALLOWED under the EEA Regulations 2006

Signed Date 04 January 2017
Upper Tribunal Judge Canavan