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

 

IN THE UPPER TRIBUNAL

IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2022-005113

First-tier Tribunal No: EA/15193/2021

 

THE IMMIGRATION ACTS

 

Decision & Reasons Issued:

On the 18 February 2025

 

Before

 

UPPER TRIBUNAL JUDGE O'CALLAGHAN

UPPER TRIBUNAL JUDGE LOUGHRAN

 

Between

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

 

EMANUEL BEQIRI

(NO ANONYMITY ORDER MADE)

Respondent

Representation :

For the Appellant: Mr P Deller, Senior Presenting Officer

For the Respondent: No attendance

 

Heard at Field House on 17 February 2025

 

DECISION AND REASONS

 

Introduction

 

1.                   The appellant is referred to as the Secretary of State and the respondent as Mr Beqiri.

 

2.                   The Secretary of State appeals against a decision of the First-tier Tribunal.

 

3.                   First-tier Tribunal Judge C Taylor ("the Judge") allowed Mr Beqiri's European Union Settlement Scheme appeal by a decision sent to the parties on 29 June 2022.

 

Relevant facts

 

4.                   Mr Beqiri is an Albanian national. He is presently aged 31. He and his now wife, a Romanian national who at the relevant time exercised EU Treaty rights in this country, commenced their relationship in 2019. They were married on 6 April 2021, after the United Kingdom left the European Union. Their son was born on 16 June 2021.

 

5.                   Mr Beqiri applied for leave to remain under the EUSS by an application dated 5 May 2021. The Secretary of State refused the application by a decision dated 26 October 2021.

 

6.                   The Judge allowed Mr Beqiri's appeal on the ground that his wife and son qualified under article 10(1)(a) of the Withdrawal Agreement, that the duty under section 55 of the Borders, Citizenship and Immigration Act 2009 applied and that it was not in the best interests of Mr Beqiri's child to be separated from his father.

 

7.                   Consideration of the Secretary of State's onward appeal was stayed by the Upper Tribunal pending the Court of Appeal judgment in Celik v Secretary of State for the Home Department [2023] EWCA Civ 921, [2023] Imm AR 1599.

 

8.                   Mr Beqiri's then legal representatives wrote to the Upper Tribunal on 5 June 2023 stating that he wished to withdraw his appeal in order to make a further application for leave to remain in the United Kingdom. As the appeal before the Upper Tribunal was filed by the Secretary of State, Mr Beqiri was informed by a Tribunal Lawyer on 6 June 2023 that it was not procedurally open to him to "withdraw" the appeal under the Tribunal Procedure (Upper Tribunal) Rules 2008.

 

9.                   Upper Tribunal Judge O'Callaghan granted the Secretary of State permission to appeal by a decision sent to the parties on 6 August 2024.

 

Proceeding in the absence of Mr Beqiri

 

10.               Legal Officers at Field House sought to contact Mr Beqiri by telephone in the days before the listed error of law hearing to ascertain whether he would attend. The calls were not answered.

 

11.               Mr Beqiri did not attend the hearing on 17 February 2025. The panel was satisfied that the notice of hearing was sent to Mr Beqiri's home address as detailed on the Tribunal's records. A Legal Officer telephoned Mr Beqiri, but the call was not answered.

 

12.               Mr Deller informed the panel that Mr Beqiri had applied for leave to remain under Appendix FM to the Immigration Rules on 6 June 2023 and was granted thirty-months leave to remain by a decision dated 14 June 2023.

 

13.               Observing that Mr Beqiri enjoyed extant leave to remain, and his former legal representatives had written to the Upper Tribunal confirming that he did not wish to engage in proceedings, the panel concluded that it was in the interests of justice to proceed with the hearing: rule 38 of the 2008 Procedure Rules.

 

Discussion

 

14.               The panel concluded that Mr Beqiri did not contest the Secretary of State's appeal. The Court of Appeal judgment in Celik was noted as was the subsequent decision of the Supreme Court refusing to grant Mr Celik permission to appeal. In the circumstances, the decision of the Judge was set aside in its entirety for material error of law.

 

Remaking the Decision

 

15.               The panel proceeded to remake the decision.

 

16.               Observing Mr Beqiri's earlier request to withdraw his appeal, the panel exercised its discretion under section 17(2) of the 2008 Procedure Rules and consented to Mr Beqiri withdrawing his appeal.

 

Notice of Decision

 

17.               The decision of the First-tier Tribunal sent to the parties on 29 June 2022 is set aside for material error of law.

 

18.               The Upper Tribunal consents to Mr Beqiri withdrawing his appeal against the Secretary of State's decision dated 26 October 2021.

 

 

D O'Callaghan

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

17 February 2025