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

 

IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-001418
	First-tier Tribunal No: EA/11821/2022

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On the 17 February 2025

 

Before

 

UPPER TRIBUNAL JUDGE NEVILLE

 

Between

 

John Arthur

(NO ANONYMITY ORDER MADE)

Appellant

and

 

Immigration Officer

Respondent

Representation :

For the Appellant: Mr T Beyebenwo, of Citi Law LLP

For the Respondent: Mr N Wain, Senior Home Office Presenting Officer

 

Heard at Field House on 8 November 2024

 

 

DECISION AND REASONS

 

1.             These reasons come with a warning that some of the dates provided by both parties are inconsistent between different documents. These inconsistencies have no material bearing on the outcome of the appeal, but the reader should not treat these reasons as providing an authoritative chronology. Anyone considering the appellant's immigration status in the future should take care to establish the correct dates.

Background

2.             The appellant is a national of Ghana. On 21 October 2020, he was granted leave to remain in the United Kingdom under Appendix EU to the Immigration Rules, as the family of his wife, an EEA national (who I shall call 'the sponsor'). His leave was due to expire on 22 October 2025.

3.             In the early hours of 8 November 2022 the appellant landed at Heathrow, having been on a two week holiday to Ghana. He was interviewed by an immigration officer, who decided to cancel the appellant's leave because the sponsor was neither present in the United Kingdom nor accompanying him, and it was proportionate to cancel his leave due to a material change of circumstances. It should be noted that the notice of that decision contains two obvious errors. First, the respondent found that cancellation was justified under paragraph A3.4(c) of Appendix EU (Family Permit). As is now common ground between the parties, that appendix has no application to the appellant as his leave was granted under Appendix EU. Second, it states that the appellant was granted entry clearance (also termed in the rules a family permit) on the basis that the sponsor was resident in the UK. The appellant was not granted entry clearance or a family permit, he was granted pre-settled status - that is to say, leave to remain.

The appeal to the First-tier Tribunal

4.             The appellant was released on immigration bail and exercised his right of appeal against the cancellation decision. In the grounds of appeal to the First-tier Tribunal, it was asserted that leave to remain had been correctly granted, that the appellant's marriage to the sponsor had since broken down and ended in divorce, and that cancelling his leave was not in accordance with the rules. Rule 24 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 then required the respondent to provide specified documents within 28 days, including the notice of the decision under appeal, any other document setting out the reasons for the decision and the record of any interview conducted with the appellant. It was common ground before me that, in common with many appeals at the time, this was not done. I was told that directions were likely issued requiring the appellant to provide a bundle and appeal skeleton argument notwithstanding the respondent's failure to take what is usually a prior step, and proceed on that agreed basis.

5.             The appeal skeleton argument was duly provided on or around 27 March 2023, as part of an appellant's bundle that also contained the appellant's witness statement. The appeal skeleton argument raised the mistake in the decision notice concerning the applicable rules and argued that the cancellation decision was therefore wrong in law. It also set out the relevant Home Office guidance on revocation or curtailment of leave under Appendix EU, and argued that the respondent simply been wrong to make the decision. Finally, it was asserted that the appellant now met the requirements for a grant of leave as someone with a retained right of residence in any event. In the witness statement, the appellant complained that he had still not been provided with any record of the interview, and wondered whether he was in a fit state to have been interviewed given his lack of sleep after landing at such an early hour, and having eaten very little. He provided copies of document that he said showed that he had cohabited with the sponsor, with an accompanying explanation.

6.             Thereafter, a respondent's bundle was provided. It is unclear whether or not it was written with sight of the appeal skeleton argument, as it repeats many of the mistakes as to the applicable provisions without any apparent acknowledgement of the appellant having raised the issue. The respondent's bundle did provide notes of the interview conducted at the airport. The appellant had confirmed that his marriage to the sponsor had broken down, he had not seen her since 2019, that they had divorced on 4 July 2022, and were no longer in contact. The explanatory statement next asserted that checks had been conducted and there was no trace of any travel to or from the UK by anyone with the sponsor's name, nor any record of her ever working or living in the UK.

7.             The explanatory statement did also contain an analysis of whether the appellant might be eligible for leave to remain due to having a retained right of residence after his divorce. It was concluded that the appellant had failed to prove that he and the sponsor had resided in the UK for at least one year during the time they were married. Somewhat confusingly, the statement goes on to reference 'the regulations' whereas the applicable provisions are again found in Appendix EU.

8.             The appeal was dismissed by First-tier Tribunal Judge Hussain on 13 September 2023, the parties apparently having consented to the appeal being decided without a hearing. Following a summary of the background, the Judge's reasons for dismissing the appeal were as follows:

12. Having read the notice of decision, I find that the appellant is incorrect in thinking that the reason for cancelling his leave to remain is that his wife was neither in the UK nor accompanied him to Ghana. The reason for the revocation was that there is no evidence to suggest that his wife was ever in this country.

13. In support of the respondent's case, she cites two sets of reasons. Firstly, she states that there is no evidence that in between 2019 and 2022, the appellant's wife either entered or left the UK, secondly, nor is there evidence of his undertaking any work or having joined the NHS. This is clearly contrary to the appellant's assertion, as noted above, where he states his wife was exercising Treaty rights.

14. It is regrettable that the appellant has not taken part in these proceedings, nor, as I think he should have done, obtained evidence of his wife's employment in this country. I appreciate that this may be difficult given that he no longer maintains any ties with her, however, he could have requested the immigration officer to use the Secretary of State's power to obtain evidence from HMRC of his wife's employment records. Had she failed to comply, then it would have been open to the appellant to apply for [an] Amos direction under which the Tribunal could compel the respondent to obtain that evidence from HMRC.

15. In the absence of evidence that the appellant's wife, at least until his divorce from her became final, was residing in the United Kingdom, against the respondent's evidence noted earlier, I find that the respondent has demonstrated that the appellant's leave to enter was justifiably cancelled.

9.             The Judge also addressed whether the appellant had a retained right of residence, finding that the appellant had not provided any evidence from which he could reasonably infer that the sponsor had resided in the UK for 12 months following the marriage.

10.         I pause to note that a so-called 'Amos direction' is now rarely made. Their purpose was to establish whether a third party was residing in the UK in accordance with EU freedom of movement law, such as a worker or a student, whereas the relevant immigration rules now usually just require that someone was residing here in any capacity. The Secretary of State now operates her own 'residence proving service' that has direct access to the relevant records, and can be directed to provide a witness statement from an official that exhibits the results of searching it.

Was there an error of law in the First-tier Tribunal's decision?

11.         The grounds of appeal to the Upper Tribunal can be summarised as asserting that the Judge repeated the same error on the rules as the respondent and, in relation to a retained right of residence, that this vitiated his findings of fact, and that he wrongly approached the rules as requiring the sponsor to be 'exercising Treaty rights' during the 12 month period cited by the respondent.

12.         I am entirely satisfied that the Judge erred in the first way argued by the appellant, by failing to grapple with the appellant's case that the cancellation decision being made under the wrong appendix was enough by itself to justify allowing the appeal. The issue had been clearly raised in both the grounds of appeal to the First-tier Tribunal and in the appeal skeleton argument, and the Judge was required to address it.

13.         When that issue is considered, there is only one possible answer. Regulation 3(1)(b) of the Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020 gives a right of appeal against a decision to cancel a person's leave to enter or remain in the UK granted by virtue of residence scheme immigration rules. That is the decision the respondent made here. Regulation 8 provides that such an appeal must be brought on one or both of two specified grounds. The ground on which this appeal was brought was that at regulation 8(3)(a), that the decision "is not in accordance with the provision of the immigration rules by virtue of which it was made".

14.         That ground was plainly made out. As stated on its face, and confirmed in the subsequent explanatory statement, the provision under which the cancellation decision was made under paragraph A3.4(c) of Appendix EU (Family Permit). This reads:

A3.4. A person's leave to enter granted by virtue of having arrived in the UK with an entry clearance that was granted under this Appendix may be cancelled where the Secretary of State or an Immigration Officer is satisfied that it is proportionate to cancel that leave where:

[...]

(c) Since the entry clearance under this Appendix was granted, there has been a change in circumstances that is, or would have been, relevant to that person's eligibility for that entry clearance, such that their leave to enter ought to be cancelled.

15.         That provision only permits cancellation of leave to enter that was granted by virtue of having arrived in the UK with an entry clearance that was granted under Appendix EU (Family Permit). The appellant's leave had been granted under Appendix EU. It could not be cancelled under paragraph A3.4 of Appendix EU (Family Permit). The cancellation decision was therefore not in accordance with the provision of the immigration rules by virtue of which it was made.

16.         Mr Wain rightly pointed out that Appendix EU contains a corresponding power to curtail leave, in much the same terms. But quite apart from the respondent having provided no rule 24 response, the applicable ground of appeal against a decision to cancel leave expressly constrains consideration to the actual provision of the rules under which that decision was made. This is in contrast to an appeal against a decision not to grant leave, which permits consideration of any immigration rules identified as having effect in connection with the withdrawal of the UK from the European Union.

17.         Mr Wain also argued that if an error of law were established, it would be immaterial: the Judge had conducted the fact-finding exercise required by the rule that ought to have been applied, with a negative outcome for the appellant. What, he asked, would be the purpose in setting aside the Judge's decision?

18.         My primary conclusion on materiality is that in this appeal the facts are irrelevant. The regulation 8(3)(a) ground of appeal permits the Tribunal to decide the substantive questions posed by the relevant rule, but here the rule has no application to the appellant in the first place. The only decision that the Judge could lawfully make was to allow the appeal, and the decision to do otherwise must be set aside. There being only one possible outcome, I re-make the decision by allowing the appeal against the cancellation decision.

19.         Two closing observations should be made. First, the decision to allow this appeal does nothing to prevent the Secretary of State making a further decision regarding the appellant's leave should she consider it appropriate to do so (and, of course, applies the correct rules). That will attract a further right of appeal. Second, while it has not been necessary for me to formally address the appellant's criticisms of the Judge's findings of fact, they do have some merit. As an example, the approach taken by the respondent to cancellation was demonstrably contrary to much of the relevant guidance, as raised in the appeal skeleton argument. It was also clearly made on the basis that there had been a change of circumstances since leave was granted, but the underlying factual basis was such that leave should never have been granted at all. Both those matters went to the cogency and coherence of the respondent's evidential case and were necessary to take into account. It is also difficult to discern what "respondent's evidence" is referred to at [15]; there was no evidence of the checks conducted by the respondent, only assertion. The decision of the First-tier Tribunal should be treated as having been set aside in its entirety.

Notice of Decision

 

(i)                  The decision of the First-tier Tribunal involved the making of an error of law and is set aside.

 

(ii)               The Upper Tribunal re-makes the decision by allowing the appellant's appeal against the decision to cancel his leave to remain, on the ground that the decision is not in accordance with the provision of the immigration rules by virtue of which it was made.

 

 

J Neville

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

13 February 2025