Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: ia/43958/2014
IA/43959/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 16th September 2016
On 20th October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

AAA (first appellant)
VEM (a minor) (second appellant)
(ANONYMITY DIRECTION MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr P Turner, Counsel
For the Respondent: Ms Z Ahmad, Home Office Presenting Officer

DECISION AND REASONS
1. The first Appellant is a citizen of Nigeria born on 27th May 1977. The second Appellant is the first Appellant's minor child born on 8th September 2003. The Appellant had originally applied for a residence card on 4th March 2009 which was issued on 30th September 2009. She applied for permanent residence on 7th August 2014. That application which sought permanent residence as a confirmation of her right to reside in the UK was considered and refused by the Secretary of State on 11th October 2014 on the grounds that the Appellant failed to meet the requirements of Regulation 10(5) of the Immigration (EEA) Regulations 2006.
2. The first Appellant lodged Grounds of Appeal against the decision of the Secretary of State and the appeal came before Judge of the First-tier Tribunal Courtney sitting at Richmond on 10th February 2016. In a decision and reasons promulgated on 29th February 2016 the appeal of the first Appellant was dismissed but the appeal of the second Appellant based on Article 12 Regulation 1612/68 was allowed and the second Appellant was entitled to be issued with a derivative residence card. The judge found that the first Appellant had arrived in the UK in 2003 on a six month visa and subsequently overstayed. On 6th September 2008 she had married Quincy Matthew, a Dutch national and had given birth to their son VEM on 8th September 2009. She had been granted an EEA residence card as the spouse of an EEA national valid until 30th September 2014. On 7th August 2014 she had applied for an EEA residence card on the basis of a retained right of residence following divorce from an EEA national i.e. from Quincy Matthew. Her son applied for an EEA residence card as the family member of an EEA national. The First-tier Tribunal Judge noted that a birth certificate had been supplied to him showing that VM's parents were the first Appellant and Quincy Matthew, whose place of birth was given as Holland. Therefore he considered that the second Appellant had a right of appeal.
3. Following the decision of the First-tier Tribunal Judge on 10th March 2015 the first Appellant lodged Grounds of Appeal to the Upper Tribunal. Those Grounds of Appeal were considered by Judge of the First-tier Tribunal Keane on 10th August 2016. Judge Keane noted that the judge had found the Appellant was the primary carer of [VEM] but found that the Appellant had not established a derivative right of residence based on Article 12. The judge noted that the decision of Ahmed (Amos: Zambrano: reg.15A(3)(c) Immigration ( EEA) Regulations 2006 Pakistan (Rev 1) [2013] UKUT 89 concluded it was contended in identical circumstances that the Appellant in that decision had a derived right of residence based on Article 12. Judge Keane consequently found that the judge had made an arguable error of law in finding that the Appellant did not have a derived right of residence based on Article 12.
4. On 18th August 2016 the Secretary of State responded to the Grounds of Appeal under Rule 24. The Secretary of State opposes the appeal noting that the judge found that the Appellant and her son could live in Holland as her son had Dutch nationality. Further the judge also noted that there was no evidence of enquiries that may have been made to establish that the Appellant would not be granted a residency card in Holland.
5. It is on that basis that the appeal comes before me to determine whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. The Appellant appears by her instructed Counsel Mr Turner. The Secretary of State appears by her Home Office Presenting Officer Ms Ahmad.

Submissions/Discussion
6. Mr Turner starts by referring me to the Grounds of Appeal and advising that he relies upon them. He submits that the authority of Ahmed along with the European Court decisions in Teixeira (European Citizenship) [2010] EUECJ C-480/08 and Ibrahim (European Citizenship) [2010] EUECJ C-310/08 established the principle that both the child of an EEA national former worker, in full-time education, and the non EEA national primary carer derive a right of residence from Article 12 of Regulation 1612/68 (now Article 10 of the 2006 Regulations). He submits that the judge found the first Appellant could not go and live in Holland was pure speculation and that she further speculated in finding at paragraph 32 that there was no evidence that enquiries had been made that the first Appellant would not be accepted into Holland at the date of decision.
7. In response Ms Ahmad points out that the basis of the second Appellant's appeal being allowed was on the basis of the child's nationality and that the mother's (i.e. the first Appellant's) claim was rejected because she could not meet the requirements of a derivative right as there was no evidence before the judge.
8. In response Mr Turner submits that the first Appellant would not be being returned to Holland and that she would have to return to Nigeria.
9. Ms Ahmad takes me to the Regulations pointing out that this has been considered by the judge at paragraph 11 of his decision and that Regulation 15A(4A) of the Regulations show that the burden of proof is on the Appellant and therefore the judge was entitled to make the findings that she did at paragraph 32. She submits there is nothing before the Tribunal today to say otherwise and that it is for the Appellant to show that she meets the requirements which she is unable to do so.
10. Mr Turner submits that the Rules should be read purposefully and that the position is that the Appellant is a Nigerian national with no European Community visa from Holland but the only right she can have is a derivative right and submits that there is no evidence that she could go to Holland and again comments that the judge has made speculative findings.
The Law
11. Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
12. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge's factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge's assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration Judge concludes that the story is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
Findings
13. This appeal turns on whether or not the judge was right in her approach in considering whether the first Appellant has or has not established a derivative right of residence based directly on Article 12 Regulation 1612/68. The judge had given very serious consideration to case law including the decision in Ahmed and the concept of a derivative right of residence under Regulation 15 Immigration (European Economic Area) Regulations 2006. She has set these Regulations out carefully at paragraphs 8 to 12 of her decision. Thereafter she has gone on to look at the status of the then second Appellant and his derivative right at paragraphs 19 to 23. She has made findings that he was born in the UK at a time when his father was exercising treaty rights and consequently found that he did have a derived right of residence.
14. Thereafter the judge has carried out a very careful analysis. Firstly she considered the general principles in Ahmed relating to the derivative right of residence of the first Appellant. She looked at whether or not she was or was not the primary carer of the then second Appellant and made findings at paragraph 28 that she was perfectly entitled to on the balance of probabilities that Mrs Adesiji was V's primary carer. Secondly she looked at the position as to whether V would be unable to reside in the EU if the Appellant were required to leave, carefully considered the law and then came to paragraph 32 where she made considered findings. She noted, quite properly, that in practice the EU citizen would be compelled to leave the UK if his non-EU mother were refused the right to reside. It was thereafter that the judge made important findings of fact. She noted there was nothing in the evidence before her to indicate that the family would be unable to live in the Netherlands such that the principles in Zambrano could have any purchase and that there was no evidence that enquiries had been made which have established that the first Appellant would not be granted a right of residence in Holland. Her approach was correct. The burden of proof is on the Appellant. The judge has fully examined the evidence and followed the correct procedure. She noted that there was no reason to believe that V's welfare would be compromised in any significant way if he were to relocate with his mother to his country of nationality.
15. I accept Mr Turner is submitting that the first Appellant would have to return to Nigeria and that she is a Nigerian citizen without a derivative right. However this fails to address the point and principle as set out in considerable detail in the Zambrano guidance. The burden of proof remains on the Appellant and the standard of proof is the balance of probabilities. This means that the onus will be on the Appellant to demonstrate that in this case her removal would force V to leave the EEA. It is as stated by the judge at paragraph 11(c) necessary for the Appellant to show that the relevant British citizen would be unable to reside in the UK or in another EEA state, i.e. in this instance Holland, if the Appellant were required to leave. The Appellant failed to discharge that burden before the First-tier Tribunal. There is no further evidence before me to show that she could discharge it now. This is of particular relevance as the judge carried out a proper and detailed analysis and made findings that she was perfectly entitled to. In such circumstances the decision of the First-tier Tribunal discloses no material error of law and the appeal of the first Appellant (which is the only extant appeal before me) is dismissed.
Notice of Decision
The decision of the First-tier Tribunal discloses no material error of law and the appeal of the first Appellant is dismissed and the decision of the First-tier Tribunal Judge is maintained.
No application made to vary the existing anonymity direction and that direction is maintained.
Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date

Deputy Upper Tribunal Judge D N Harris 20th October 2016

TO THE RESPONDENT
FEE AWARD
No application is made for a fee award and none is made.

Signed Date

Deputy Upper Tribunal Judge D N Harris 20th October 2016