United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

 

IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2022-004489
	First-tier Tribunal No: EA/14961/2021

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 28 ^th of November 2024

 

Before

 

UPPER TRIBUNAL JUDGE HOFFMAN

 

Between

 

PJETER PRENGA

(NO ANONYMITY ORDER MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: No appearance

For the Respondent: Mr E Terrell, Senior Home Office Presenting Officer

 

Heard at Field House on 27 November 2024

 

DECISION AND REASONS

 

1.              The appellant appeals with permission the decision of First-tier Tribunal Judge Roots ("the judge") promulgated on 4 May 2022 dismissing his appeal against the respondent's decision dated 21 October 2021 to refuse his application for settled status under the EU Settlement Scheme ("EUSS").

 

Background

2.              The appellant was born in Albania in 1993. He entered the UK illegally on 13 June 2016. On 10 January 2020, he met Ms Maria Bravou, a Greek national exercising EU Treaty rights in the UK. They began living together on 10 April 2020. On 29 June 2021, the appellant made an application for settled status under the EUSS. The couple then married on 5 August 2021.

3.              In the decision dated 21 October 2021, the respondent refused the appellant's EUSS application on the basis that he could not meet the definition of a "family member" for the purposes of paragraphs EU11 or EU14 of Appendix EU of the Immigration Rules because while claiming to be a durable partner of an EU national, he had not been issued with a residence card or family permit ("a relevant document") under the Immigration (European Economic Area) Regulations 2016 ("the EEA Regulations") prior to the end of the transition period following the UK's exit from the EU.

4.              The appellant's appeal against that decision was heard by the First-tier Tribunal on 19 April 2022. In dismissing that appeal, the judge found that:

1. The appellant did not meet the requirements of Appendix EU because he did not have a relevant document.
2. The decision to refuse the appellant status under the EUSS was not in breach of the EU-UK Withdrawal Agreement because the appellant fell outside of Article 10 of that Agreement as an extended family member whose residence in the UK had not been facilitated prior to the end of the post-EU exit transitional period on 31 December 2020.

Appeal to the Upper Tribunal

5.              Permission to appeal was granted by Upper Tribunal Judge Perkins on 10 November 2022 on the following grounds:

1. The judge erred in law in finding that paragraph EU14 of Appendix FM required the appellant to hold a relevant document.
2. The judge erred in law in finding that the specified date for the purposes of Appendix EU was 31 December 2020 rather than 1 July 2021.
3. The judge erred in law in finding that the appellant did not meet the definition of a durable partner.

6.        The appeal was subsequently stayed pending the decision of the Court of Appeal in Celik v Secretary of State for the Home Department [2023] EWCA Civ 921, which was handed down on 31 July 2023. On 5 April 2024, Upper Tribunal Judge Pitt directed the parties to reconsider their respective positions in the light of that judgment. Judge Pitt expressed a provisional view that the appellant's grounds of appeal could not succeed given the findings made by the Court of Appeal and she suggested that if the appellant accepted that, he should withdraw his appeal. However, the appellant did not withdraw his appeal and, as a consequence, an error of law hearing was listed before Upper Tribunal Judges Rintoul and Mahmood on 5 August 2024 for which the appellant appeared in person. As the appellant was no longer legally represented, the hearing was adjourned to be relisted on the first available date so that an Albanian interpreter could be provided for him.

 

The hearing

7.        The error of law hearing was relisted before me on 27 November 2024. However, the appellant failed to attend at the 10 am start time. Checks were made by the clerk which confirmed that the notice of hearing had been posted to the appellant's home address as the appellant had not provided an email address. The clerk tried to call the appellant using the telephone number provided but she found that the call would not connect.

8.        By the time I had finished the other case on my list it was 12:10 and there had still be no appearance by the appellant. Mr Terrell, on behalf of the respondent, submitted that the hearing should proceed in the appellant's absence given that he had failed to engage with his appeal, including by failing to have regard to Judge Pitt's directions, and on the basis that the appeal was unarguable in the light of Celik.

9.        On consideration, having taken into account the overriding objective, I was satisfied that it was fair and proportionate to proceed in the appellant's absence in circumstances where the appellant had been properly served with the notice of hearing, attempts had been made to contact him by phone, he had failed to engage with Judge Pitt's directions, he had failed to apply for an adjournment and the respondent had gone to the expense of attending the hearing.

10.    While separate to my decision to proceed in the appellant's absence, I would make it clear that in having decided to proceed with his appeal despite the contents of Judge Pitt's direction and thereafter failing to attend the hearing, the appellant has unnecessarily wasted the Upper Tribunal's finite time and resources. This is especially egregious in circumstances where the last hearing was adjourned so that an interpreter could be provided to the appellant at public expense.

 

Findings - Error of Law

 

Ground 1: Whether paragraph EU14 required the appellant to hold a "relevant document"

11.          It is difficult to understand why this ground of appeal has even been advanced given that it is recorded at [22] of the judge's decision that the appellant's representative before the First-tier Tribunal had accepted in her oral submissions that the appellant could not meet this requirement of the Rules.

12.          In any event, I am satisfied that the judge made no error of law in finding that in order to meet the requirements of paragraph EU14 of Appendix EU to the Rules, the appellant was required to hold a relevant document prior to the specified date, i.e. 31 December 2020. As the judge correctly noted at [22] to [23] of the decision, paragraph EU14 required the appellant to demonstrate that he was the family member of a relevant citizen. "Family member" is defined under Annex 1 as including "the durable partner of a relevant EEA citizen". "Durable partner", which is also defined under Annex 1, required that the appellant (a) has been living together with his EEA partner in a relationship akin to marriage or civil partnership for at least two years; and, importantly, (b) hold a relevant document as the durable partner of an EEA citizen for the period of residence relied upon. The judge's findings were in accordance with the judgment in Celik, at [35].

13.          As the appellant had never been issued with a relevant document under the EEA Regulations, his EUSS application was bound to fail.

 

Ground 2: Wrong interpretation of the "specified date"

14.          This ground is academic in the light of my findings in relation to Ground 1 and, in any event, it also does not disclose an error of law. The judge was right to take the specified date as being 31 December 2020, which was the end of the transition period: see Celik, at [32]. Furthermore, the judge was also correct to find that the appellant, as the unmarried partner of an EEA national at the specified date, fell outside of the scope of Article 10 of the Withdrawal Agreement: ibid, at [54]. Article 9, which the appellant relies upon, therefore has no application to his case.

 

Ground 3: Evidence of a durable relationship

15.          The appellant argues that the judge erred in failing to consider the evidence that he and his partner had been living together in a durable relationship before 1 July 2021.

16.          This ground can only succeed if Grounds 1 and 2 are made out. That the appellant did not have a relevant document meant that his EUSS application fell for refusal because he did not meet the definitions of a durable partner and, as a consequence, a family member. The question of whether he had cohabited with his partner in a relationship akin to marriage for two years was therefore irrelevant. As I have found that Grounds 1 and 2 do not identify any error of law, I also find that Ground 3 falls to be dismissed.

Notice of Decision

 

There is no material error of law in Judge Roots' decision.

 

The appeal is dismissed.

 

 

M R Hoffman

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

27 ^th November 2024