Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/46340/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 18 February 2016
On 17 October 2016

Before

THE HONOURABLE MR JUSTICE COLLINS
DEPUTY UPPER TRIBUNAL JUDGE SHAERF

Between

SATCHITHANANTHAM KAJENTHIRAN
(anonymity direction NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr P Lingathajorthey, Counsel, instructed by Linga & Co
For the Respondent: Mr T Melvin, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal against the decision of Judge Hussain which was given on 15 May 2015. The appellant is a national of Sri Lanka. He came to this country initially as a working holidaymaker. He made a claim for asylum in 2008 and was in fact in that year also convicted of an offence in relation to use of a false identity card. However what this appeal concerns relates to his application in March 2009 for a residence card which was then brought to an end following application for permanent residence in June 2014 which was refused.

2. The basis upon which he had applied for and indeed received the residence card originally was as the family member of an EEA national who was exercising treaty rights in this country. It seems that he set up with the EEA national, we need not go into details of her background, but her brother in particular was very opposed to the arrangement which he had entered into with her and exercised violence towards her. They were hoping, he says, in the end to marry but as a result of the violence and threats of violence from her brother the relationship broke down. And it is the breakdown of the relationship which is relied on as a basis for permitting him to remain here based upon the equivalent right given under paragraph 289 of the Rules relating to indefinite leave as a victim of domestic violence.

3. What was before the judge were the two decisions, one, the application for permanent residence, and two, it followed from that, the revocation of the residence card.

4. The revocation was based on Regulation 20(2) of the EEA Regulations 2006 which enables the Secretary of State to revoke a registration card or refuse to renew it if the holder has ceased to have the right to reside in accordance with the Regulations and the decision was that he had ceased to have the right to reside, and further in accordance with the Regulations the judge decided that he was not entitled to permanent residence here.

5. The relevant provisions of the Regulations put into effect the Directive from the European Union which relates to the rights of EEA nationals to set up in other member states.

6. Article 13 deals with the retention of the right of residence by family members in the event of divorce, annulment of marriage or termination of registered partnership and it is important to note that it applies only to family members who are in the position of being no longer family members because of divorce or termination of a registered partnership. The Directive thus clearly requires that if there is not a marriage there must be a registered partnership and it does not apply beyond that, and that is put into effect by Regulation 10 of the 2006 Regulations and that in accordance with the requirements of the Directive applies to family members only.

7. The appellant is not a family member but is an extended family member because there is no marriage and there is no civil partnership which is the equivalent of what is referred to in the Directive as a registered partnership.

8. Paragraph 10(5) of the 2006 Regulations provides so far as material "A person satisfies the conditions in this paragraph and that is the conditions under which right of residence can be retained if (a) he ceased to be a family member of a qualified person or of an EEA national with a permanent right of residence on the termination of the marriage or civil partnership of that person.

9. Then (d) provided either what is in (i), (ii) and (iii) or (iv) the continued right of residence in the United Kingdom of the person is warranted by particularly difficult circumstances such as he or an other family member having been a victim of domestic violence while the marriage or civil partnership was subsisting, and it is to be noted that that right is not limited to domestic violence. Domestic violence is given as the example, but it can be extended beyond. And the circumstances described in this case could possibly, and we do not have to go into the details, qualify as particularly difficult circumstances if there was sufficient evidence to support that.

10. We say "if there was sufficient evidence" because as Judge Hussain stated in paragraph 30:
"Before I deal with his submissions, I should make it clear that I have not made a finding as to whether the appellant's wife has been the subject of domestic violence because firstly, other than the appellant's assertions there is no independent evidence of it, and secondly, it is not at all clear to me whether the alleged violence by his partner's brother constitutes domestic violence for the purpose of the Regulations."
11. We should say quite clearly it does not. There is no question but that domestic violence is limited to violence between the partners, or those living together, or violence to a child where, for example, as a result of that violence, the other partner decides that it is quite impossible to continue to live with the individual who has been guilty of that sort of violence.

12. But it is a purely family violence, internal to the family, and violence from an outsider albeit in this case a relative of the lady in question cannot in our view be regarded as domestic violence, and certainly would not qualify within paragraph 289A which deals with victims of domestic violence. This provides again so far as material, that the requirements to be met by a person who is the victim of domestic violence and who is seeking indefinite leave to remain in the United Kingdom are that various requirements relating to what sorts of leave had been granted in the past and that the relationship was subsisting at the beginning of the last period of leave, and, this is the important one, the applicant is able to produce evidence to establish that the relationship was caused to permanently break down before the end of that period as a result of domestic violence.

13. So if it is possible to prove that domestic violence caused the relationship to break down then the individual can succeed and by (ii) the relationship extends to unmarried partners or same sex partners and so extends to what would be in the EEA Directive extended family members.

14. The argument which has brought the appeal to this Tribunal stems from observations in paragraphs 32 and 33 of Judge Hussain's decision. Mr Lingathajorthey who appeared then and appears again before us, had submitted that there was inequality in treatment between persons who are married and persons who are not, between those who were not within the EEA Directive and those who might qualify under 289A. And he relied on a report, and we emphasise it is but a report, of a decision of a First-tier Tribunal reached in November 2012, and the argument that appealed to that Tribunal was that there was a breach of the EU principle of equal treatment because the rights provided for unmarried partners or unregistered partners or those who have not gone through the necessary procedure in this country and those who might qualify under the domestic violence provisions would show such inequality.

15. That is not, as it seems to us, an argument that could conceivably be correct in the terms of the law. As we have already indicated the starting point is the Directive and the Directive clearly covers only married persons or registered partners, and thus does not extend beyond what are regarded as family members for that purpose.

16. There is no power in this Tribunal, indeed there is no power in any court in this country to challenge or to disapply the Directive and what the Regulations do is faithfully to apply into domestic law the requirements of the Directive. But it goes further than that because the right under 289A depends upon the partner in question being settled.

17. An EEA national does not have to be settled here to enable a partner to be allowed to remain here with him or her so long as he or she is exercising his or her treaty rights. If he is here long enough and can apply for and succeed in obtaining permanent leave to remain here and so becomes settled here then 289A will apply, and so the unmarried or unregistered partner is in exactly the same position as he would be to enable use to be made of 289A. The reality is there is no discrimination which could conceivably be said to amount to amount to such. Indeed, as we have indicated too, the rights under paragraph 10(5)(iv) extend beyond pure domestic violence. So to that extent there is an advantage given to EEA nationals because, as we say, it is somewhat wider than the rights under 289A.

18. Judge Hussain decided that it was not necessary to go into that issue and although he had read the report he did not think it was open to him to interpret the law in a way that would run counter to the explicit language in the Regulations. So far as that is concerned, we have no doubt that he was entirely correct but he did say that the issue appeared to him to be of sufficient importance for a senior court to examine and make pronouncements on it and that is what resulted in leave to appeal being given.

19. We are clearly of the view that there is no conceivable argument which can overcome the clear words of the Directive followed by the equally clear words of the Regulations which put the Directive into force. We have not seen the decision itself, the report of which was relied on and that in itself should not happen because if there is to be reliance on a decision the decision must be produced and it is not sufficient simply to rely on a report of the decision which may or may not include everything that is material.

20. We also of course make the point that this appeal is not concerned in any way with Article 8. We are not dealing with any question of removal merely of refusal to allow there to be a recognition of leave to remain.

21. If a removal decision is made then no doubt Article 8 or other grounds may be able to be raised if there is a refusal but that is a matter for the future and is not a matter for us to consider at this stage.

Notice of Decision

22. Accordingly for the reasons we have indicated this appeal is dismissed.

No anonymity direction is made.

Signed Date: 2 March 2016

Mr Justice Collins

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal and therefore there can be no fee award.

Signed Date: 2 March 2016

Mr Justice Collins