Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005160

First-tier Tribunal No: EU/50740/2023
LE/00298/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 31 January 2025

Before

UPPER TRIBUNAL JUDGE HANSON

Between

MOHAMMAD SHAJIB HOSSAIN
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Not attending – see below.
For the Respondent: Ms Young, a Senior Home Office Presenting Officer

Heard at Phoenix House (Bradford) on 24 January 2025

DECISION AND REASONS

1. The Applicant has the benefit of legal representation although in an email sent on 14 January 2024 his representatives, GIGALEGAL Solicitors, wrote;
The Appellant will not be legally represented at the EOL hearing scheduled for 24/01/2025 due to financial limitations. Consequently, the Appellant’s legal representative, Dr. Sajib Hosen, will not be attending the hearing. Additionally, the Appellant will be unable to attend the hearing in person and respectfully requests that the Tribunal make a decision based on the documents submitted.
We kindly request that this information is noted on the Tribunal's records.
We have also copied the Respondent on this email for the purpose of service.
2. There is no indication the Respondent was asked whether she consents to the matter being disposed of on the papers although there was no need to seek submissions from Ms Young.
3. The Appellant appeals with permission a decision of First-tier Tribunal Judge Henderson (‘the Judge’), promulgated following a hearing at Newcastle on 4 September 2024, in which the Judge refused his application for status as the durable partner of a relevant EEA citizen, Mira Chirbea, a Romanian citizen who had pre-settled status.
4. Having considered the documentary and oral evidence the Judge sets out her findings of fact from [12] of the decision under challenge.
5. The Judge refers to an earlier decision as her starting point, in accordance with the Devaseelan principle, finding the facts between the earlier case and the current case remain the same.
6. The Appellant, a citizen of Bangladesh born on 19 September 1995, entered the UK lawfully as a student on 26 September 2014 with a Visa valid to 2 October 2017. The Appellant overstayed his visa and met his future wife, Mira Chirbea remotely, and then met in person on her arrival in the UK on 19 June 2014. The Appellant claimed they had been living together since that date. Ms Chirbea was granted Pre-Settled Status under Appendix EU on 9 September 2020, although the Appellant made no application before the specified date of 31 December 2020 for a residence card or a family permit as the family member of Ms Chirbea.
7. The Judge notes the Appellant’s representative’s submissions did not refer to the case of Celik v Secretary of State for the Home Department [2023] EWCA Civ 921 although the amended skeleton argument was uploaded on 8 August 2023. The Judge finds that the exert highlighted in the skeleton argument indicates that the Appellant’s representatives had not properly read Celik in which it found that Article 10 (1) (e) (i) of the Withdrawal Agreement was clearly worded. That decision underlined that a person such as the Appellant who was claiming to be an extended family member/durable partner before 11 PM GMT on 31 December 2020, and who had not applied for facilitation of entry and/or residence before that time, cannot rely upon the Withdrawal Agreement or the Immigration Rules in order to succeed in an appeal under the Immigration (Citizens Rights Appeals) (EU Exit) Regulations 2020.
8. The Judge finds the Appellant did not have a “relevant document” prior to 31 December 2020 as the durable partner of his Sponsor meaning the Appellant’s appeal was incapable of succeeding as he could not meet the requirements of EU11 or EU14 of Appendix EU of the Immigration Rules.
9. The Appellant sought permission to appeal asserting (i) the Judge followed an incorrect procedure which resulted in unfairness, (ii) the Judge failed to adequately consider the Withdrawal Agreement and EU Law Provisions, (iii) the Judge misapplied the provisions of Appendix EU. For the reasons more fully set out in the grounds attached to the application for permission to appeal.
10. Permission to appeal was granted by another judge of the First-tier Tribunal, the operative part grant being in the following terms:
2. Ground 1: The appellant argues that the Judge erred procedurally by not taking oral evidence from the appellant, his spouse, and additional witnesses, which allegedly deprived him of a fair hearing. The Judge, as per the Tribunal Procedure Rules, has a duty to ensure a fair and just handling of proceedings, including allowing parties the opportunity to present material evidence (Rule 2, Tribunal Procedure (First-tier Tribunal) IAC Rules 2014). Additionally, Nwaigwe reiterated that procedural fairness mandates an adequate opportunity for the appellant to present their case. In this case, the Judge relied on a previous determination without conducting a full fact-finding hearing or allowing cross-examination of witnesses. This approach may have prematurely excluded relevant evidence, which could potentially impact the fairness and accuracy of the findings amounting to an arguable error of law.
3. Ground 2: The appellant contends that the Judge erred by not fully considering the Withdrawal Agreement, (WA), specifically its provisions on family unity and proportionality. Article 18(1)(r) of the WA emphasises a proportionate assessment of residence applications, especially where family members of EEA nationals are concerned. The decision in Celik clarifies that the WA does not protect individuals whose residence was not facilitated by the UK before 31 December 2020, and that proportionality does not override the strict requirements of the WA. However, the appellant argues that he was already in the UK before the cut-off date and that procedural restrictions prevented him from securing facilitated residence. Given the proportionality considerations emphasised in Article 18(1)(r) and potential implications for family unity, there is an arguable error that the Judge had not properly engaged with the WA provisions
4. Ground 3: The appellant argues that Judge’s interpretation of Appendix EU was overly rigid, particularly in relation to the “relevant document” requirement. Appendix EU, specifically paragraphs EU11 and EU14, permits applications from durable partners of EEA nationals even if they lack a residence card or family permit, provided they had another lawful basis for residence.
5. The Judge’s decision arguably appears to rely heavily on the absence of a relevant document, overlooking the appellant's established relationship and continuous residence in the UK. The appellant asserts that this interpretation undermines the purpose of the EU Settlement Scheme, which was intended to provide continuity of residence for those already in the UK before Brexit. This shows an arguable error of approach by the Judge.
6. Celik establishes that failure to hold a “relevant document” disqualifies a person from securing rights under the WA and the Judge applied this precedent. However, Appendix EU requires consideration of continuity of residence for those already present, which arguably necessitates a broader examination of the appellant’s circumstances. Accordingly, this ground is also arguable.
7. Permission is granted on all grounds.
11. The written submissions filed on behalf of the Appellant by his representative read:
1. The Appellant’s (A’s) error of law hearing is scheduled for 24/01/2025. The A will not be legally represented during the hearing due to financial limitations. The A will also not be present at the hearing. The A has requested the Tribunal to make a decision based on the documents submitted and written submissions.
2. The purpose of the written submissions is to assist the Tribunal in the absence of the legal representative and the A during the hearing.
3. The A continues to rely on the grounds outlined in the permission to appeal application (pages 12 -16 of the CB), upon which permission was granted.
4. The A relies on the argument that the FTJ did not follow the appropriate procedure, as detailed in paragraphs 4–9 of the grounds. The failure to hear oral evidence from the A and witnesses resulted in procedural unfairness, contrary to the Tribunal Procedure Rules 2014 and relevant case law.
5. The FTJ’s failure to adequately consider the Withdrawal Agreement is set out in paragraphs 10–12. The rigid interpretation of Appendix EU disregarded the principles of proportionality and family unity under Article 18(1)(r) of the Withdrawal Agreement.
6. As outlined in paragraphs 13–14, the FTJ misapplied Appendix EU by treating the absence of a "relevant document" as determinative. The provisions of Appendix EU, read in conjunction with the Withdrawal Agreement, allow for broader consideration, which was not undertaken in this case.
7. The A invites the Tribunal to find that these errors of law materially affected the outcome of the appeal. The A requests the Tribunal to determine the matter based on the evidence and arguments submitted.
Discussion and analysis
12. In relation to the witnesses case management information provided to the First- teir tribunal, that confirmed the appellant will attend the hearing, that the appellant will give oral evidence at the hearing, that one witness will attend the hearing whose name was given as Maria Mihaela Chirbea, who required an interpreter in the specified language.
13. The Judge at [9] records the following in relation to the hearing:
9. A full record of court proceedings was made during the hearing. I will refer to the main issues and provide a summary of those proceedings. I indicated at the outset of the proceedings to the Appellant’s representative that I could did not understand what was different in the current proceedings to the factual and legal position in the previous hearing. The Appellant’s representative referred to the skeleton argument and the CMRH and submitted that the basis of the argument was that the Appellant’s wife and other friends would be affected by him not being allowed to remain. He conceded that this was not an argument which could be brought with reference to Article 8 of the ECHR. I asked him if he was fully aware of the case law in Celik v SSHD [2023] EWCA Civ 921 since this was not referred to in the skeleton argument. The Appellant’s representative confirmed that he was aware of the case. I asked him to confirm what the legal basis was for this application bearing in mind the case of Celik and the previous determination. I was not pointed to anything other than the amended skeleton argument. I noted that the previous determination showed that evidence had previously been given by the Appellant’s wife and three other witnesses regarding the genuine nature of the Appellant’s durable relationship. This was not disputed by the Respondent or the previous Immigration Judge hearing the decision. I decided that there was no need to hear the oral evidence on the relationship again.
10. The Respondent relied on the case of Celik and stated that the reasons for refusal were still relevant.
11. At the conclusion of the hearing, I reserved my decision.
14. The Judge was aware of who attended to give evidence in the appeal and it was for the Judge decide what evidence she actually needed to hear, subject to the overriding principle of fairness. The Judge refers to the key problem with the Appellant’s case being that it did not properly address the findings of the Court of Appeal in Celik. The Judge also found there was no need to hear oral evidence on the relationship issue further, as that was not disputed by the Secretary of State nor by the judge who heard the earlier appeal and was not in issue.
15. No procedural irregularity arises per se in the Judge following this procedure.
16. Ground 1, asserting the Judge followed an incorrect procedure which resulted in unfairness is critical of the Judge for not taking evidence from the witnesses who could be cross-examined, but fails to identify any issues that may have arisen from hearing such evidence that the Judge did not properly consider, or which would have made any difference. It is not the case of the Judge excluding evidence that may have made a difference but the Judge deciding that as the relationship issue was not disputed, and that an earlier findings had been made that warranted being followed in accordance with the Devaseelan principle, it would add nothing to the appeal if that evidence was repeated. That is a sustainable position.
17. It is also the case that the Appellant was represented before the Judge by Mr S Hossain with no indication in the determination that, notwithstanding the Judge’s ruling on this point, the Appellant still wanted the Judge to hear oral evidence and asked for the same to be heard.
18. There is no merit in Ground 1 if it is implying the Judge, in addition to the evidential point, did not permit submissions, as the Judge clearly had available to her pleadings including skeleton arguments and submissions made on the Appellant’s behalf.
19. Whilst the Ground refers to case law it fails to specifically address the procedural facts on the day, and the issues that it is alleged the Appellant was not able to give evidence upon. This is because, when matters are read as a whole, there was no unfairness as it is not made out there was anything that the Appellant was unable to put before the Judge. The material the Judge was able to consider was clearly in the context of the relevant issues at large.
20. Ground 2 asserts the Judge failed to adequately consider the Withdrawal Agreement and particularly Article 18 (1) (r) in which the Withdrawal Agreement emphasises the right to a proportionate assessment of applications of resident status, especially in cases involving family members of EEA nationals.
21. The Court of Appeal decision in Celik upheld that of the Upper Tribunal reported as Celik (EU exit, marriage, human rights) [2022] UKUT 00220 had noted which reads:
(1) A person (P) in a durable relationship in the United Kingdom with an EU citizen has as such no substantive rights under the EU Withdrawal Agreement, unless P’s entry and residence were being facilitated before 11pm GMT on 31 December 2020 or P had applied for such facilitation before that time.
(2) Where P has no such substantive right, P cannot invoke the concept of proportionality in Article 18.1(r) of the Withdrawal Agreement or the principle of fairness, in order to succeed in an appeal under the Immigration (Citizens’ Rights) (EU Exit) Regulations 2020 (“the 2020 Regulations”). That includes the situation where it is likely that P would have been able to secure a date to marry the EU citizen before the time mentioned in paragraph (1) above, but for the Covid-19 pandemic.
(3) Regulation 9(4) of the 2020 Regulations confers a power on the First-tier Tribunal to consider a human rights ground of appeal, subject to the prohibition imposed by regulation 9(5) upon the Tribunal considering a new matter without the consent of the Secretary of State.
22. The Court of Appeal in Celik v Secretary is State the Home Department [2023] EWCA Civ 921, adopted a restrictive approach to the principle of proportionality. Lewis LJ dealt with the role of proportionality at [56] in the following terms:
56. Further, the principle of proportionality, whether as a matter of general principle, or as given express recognition in Article 18(1)(r) of the Withdrawal Agreement, does not assist the appellant. Article 18(1)(r) is intended to ensure that decisions refusing the "new residence status" envisaged by Article 18(1) are not disproportionate. That status must ensure that EU citizens and United Kingdom nationals, and their respective family members and other persons may apply for a new residence status "which confers the rights under this Title". The principle of proportionality, in this context, is addressed to ensuring that the arrangements adopted by the United Kingdom (or a Member State) do not prevent a person who has residence rights under the Withdrawal Agreement being able to enjoy those rights after the end of the transition period. The principle of proportionality is not intended to lead to the conferment of residence status on people who would not otherwise have any rights to reside. The appellant did not have any rights under Article 10(1)(e)(i) of the Withdrawal Agreement. The refusal to grant residence status is not therefore a disproportionate refusal of residence status which would have conferred rights already enjoyed under the Withdrawal Agreement. Rather, it is a recognition that the appellant did not have any such rights under Article 10(1)(e)(i).
23. The finding of the Judge is that because the Appellant did not make an application before the specified date, and his entry had not been facilitated by the Secretary of State, he did not establish he had any right to reside under EU law or the Withdrawal Agreement. As the Appellant did not establish any right under Article 10 (1) (e) (i) of the Withdrawal Agreement refusal to grant residence status is not therefore a disproportionate refusal of residential status which would have conferred rights already enjoyed under the Withdrawal Agreement. The Appellant’s assertion in the grounds that the Judge’s finding the Appellant failed to hold a “relevant document” before 31 December 2020 automatically disqualified him is an overly rigid interpretation of Appendix EU and inconsistent with the principle of family life under EU law and the Withdrawal Agreement, is without merit. Such submission is disingenuous as the author would no doubt be aware it is a submission contrary to the binding case law.
24. It is not an overly rigid interpretation of Appendix EU but a lawful application by the Judge of the decisions of the Upper Tribunal and Court of Appeal in relation to retained rights of those in the Appellant’s situation following Brexit, in light of the specific terms of the Withdrawal Agreement. The Judge’s interpretation is not inconsistent with principles of family unity under EU law and the Withdrawal Agreement as the Appellant had not establish he had any rights recognised in EU law or under the Withdrawal Agreement which would bring him within the scope of the protection to be found in either Appendix EU or the Withdrawal Agreement.
25. The submission at [12] of Ground 2 also lacks merit. The Appellant’s claim that because he was already present in the UK before 31 December 2020 it was not possible for him to apply for facilitation of enter the UK is, again, totally without merit. Under the Immigration (EEA) Regulations 2016 an extended family member or persons in a durable relationship were able to make applications either out of country to enter the UK with a Family Permit or for a Residence Document conferring a right to reside with the EU national if they applied from within the UK. There was nothing before the Judge to establish why, as the Appellant was in the UK prior to 11 PM 31 December 2020, he did not make an application for leave on this basis.
26. Ground 3 asserting the Judge misapplied the provisions of Appendix EU by treating the lack of a “relevant document” as a determinative factor and rejecting the appeal, by reference to EU 11 EU 14 is without arguable merit. The Judge’s finding that the Appellant had no recognised right under EU law or Withdrawal Agreement is correct in law. Whilst applications can be made by durable partners of EU nationals who had not held a residence card or family permit, provided they had another lawful basis for residence, there is nothing in the evidence before the Judge to establish that the Appellant was able to succeed on any other basis. It also does not appear to be in a point properly argued in either the written documents or submissions made before the Judge. It was not for the Judge to “fully explore whether the Appellant circumstances could be considered under this broader framework” when it was not a matter relied upon by the Appellant. Proceedings before the First-tier Tribunal are litigious, the Appellant was represented, and the Judge was entitled to deal with those matters that she was asked to deal with, as she did.
27. The Grounds fail to establish any arguable legal are material to the decision of the Judge. It is unfortunate in this era of procedural rigour that the representatives who drafted the Grounds thought it appropriate to plead grounds that are totally without merit and have no realistic prospects of success. As noted by the Judge, on the facts of this matter there is only one outcome, especially in light of the failure of the Appellant to engage with the case law as identified by the Judge, that the appeal had to be dismissed.
28. The Appellant may be able to apply for leave to remain under the Immigration Rules or Article 8 ECHR on the basis of his relationship with his partner, but they are separate issues upon which advice can be taken.

Notice of Decision
29. There is no legal error material to the decision of the First-tier Tribunal. The determination shall stand.

C J Hanson

Judge of the Upper Tribunal
Immigration and Asylum Chamber

24 January 2025