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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-002044
	First-tier Tribunal No: EU/53596/2023 LE/00961/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 20 February 2025

 

Before

 

UPPER TRIBUNAL JUDGE RASTOGI

 

Between

 

Charles Baafi Britton

(NO ANONYMITY ORDER MADE)

Appellant

and

 

Secretary of State for the Home Department

Respondent

Representation :

For the Appellant: Mrs M. Amadi, Eden Immigration Services

For the Respondent: Ms H. Gilmore, Senior Home Office Presenting Officer

 

Heard at Field House on 27 November 2024

 

DECISION AND REASONS

 

 

1.              By way of a decision issued on 4 September 2024 Upper Tribunal Judges Bruce and Rastogi found an error of law in the decision of First-tier Tribunal Judge Freer ("the EOL decision"). We decided that the appeal could be remade in the Upper Tribunal as there were sufficient facts which could be preserved. This decision relates to the remaking of the decision of the First-tier Tribunal ("FTT").

2.              Although the factual matrix here is relatively straightforward, for reasons that will become apparent, there was an intervening legal development of potential relevance which required post-hearing submissions from the parties and proper consideration as part of the re-making exercise.

Background

 

3.              The appeal is in the context of the European Union Settlement Scheme ("EUSS") which governs the ability of EEA nationals and their family members to enter and remain in the United Kingdom (UK) after the departure of the UK from the European Union.

 

4.              The appellant is a citizen of Ghana, date of birth 26 September 2001. He arrived in the UK on 6 February 2023 with an EUSS Family Permit valid from 5 December 2022 to 5 June 2023 based on his relationship with his father, an Italian citizen, residing in the UK with EUSS leave.

 

5.              By the time of his next application on 20 February 2023 (the refusal of which led to the decision under appeal), the appellant was 21 years old. He applied for leave under Appendix EU of the Immigration Rules as the child of an EEA citizen. The appellant said he is dependent on his father and step-mother as they house him, feed him and are responsible for his upkeep.

 

6.              The respondent refused the appellant's application as she was not satisfied the appellant had provided sufficient evidence of dependency. The appellant appealed to the First-tier Tribunal and it came before FTT Judge Freer ("the judge") on 21 March 2024. The judge made the following preserved findings of fact as summarised at [18] of the EOL decision:

 

"The judge was satisfied on the basis of that evidence that the appellant lived in his father's accommodation and that he fed him [41] and that he earned £850 a month [44]. There was no challenge to these findings and they were properly made on the evidence before the judge. The judge also noted the appellant's oral evidence that he paid for his own travel and clothes [18]".

 

7.              The judge made other findings at [41]-[47] which were the subject of a successful challenge at the error of law hearing. By way of his written decision dated 22 March 2024, the judge dismissed the appeal. The appellant appealed to the Upper Tribunal.

 

8.              In the EOL decision, having found errors of law in the judge's assessment of dependency, we set aside the decision, granted the appellant's application to admit new evidence not before the FTT and made directions for the re-listing of the appeal and the filing of any other evidence on which the appellant relied.

9.              The remaking hearing came before me. I had access to both the error of law bundle and the bundle the appellant filed for the purposes of the hearing which, in essence, was the hearing bundle before the FTT. The appellant had not filed any additional evidence. Ms Amadi explained that she had recently taken over the case from the fee-earner responsible who was away and her instructions were that there was no additional evidence. However, on the morning of the hearing the appellant sought permission to admit evidence on his phone which I refused. I did so as the appellant had failed to comply with the directions for service of additional evidence and as the respondent had prepared the appeal on the basis that there was no updating evidence. As there was no new evidence, and as the findings of fact had been preserved, the case was heard on the basis of submissions and at the end of the hearing I reserved my decision.

10.          Prior to preparing my decision, on 10 December 2024, the Court of Appeal published its decision in R (on the application of Ali) v Secretary of State for the Home Department [2024] EWCA Civ 1546. As the decision had some potential relevance to the issues for me to decide, on 17 December 2024 I issued directions to the parties to provide written submissions on the "relevance if any" of R (Ali) following which a decision would be made unless fairness required the hearing to be reconvened.

 

11.          In accordance with those directions, both parties provided position statements. I will turn to the content below. Suffice to stay at this stage, neither requested the hearing be reconvened and I do not find fairness to require it as the decision can be fairly determined on the basis of the evidence and submissions now before the Tribunal.

 

The Legal Framework

 

The Appeal Rights

 

12.          The appellant's right to appeal the respondent's decision derives from section 3 of the Immigration (Citizen's Rights Appeals) (EU Exit) Regulations 2020 ("the CRA Regs"). The operative grounds of appeal are found in section 8 of the CRA Regs and in summary they are that the respondent's decision breaches any right which the appellant has by virtue of the Withdrawal Agreement ("WA") (section 8(2)(a)) and/or is not in accordance with the residence scheme immigration rules (section 8(3)(b)).

 

The Withdrawal Agreement

 

13.          As confirmed at [1]-[3] of R (Ali), the WA has been incorporated into domestic law by section 7A European Union (Withdrawal) Act 2018 and therefore has direct effect. Certain rights previously conferred by EU law including Directive 2004/38/EC ("CRD") regarding the rights of EU citizens and their families to move and reside within the EU were re-stated in the WA .

 

14.          Article 10, Title I of Part Two (personal scope) of the WA sets out the persons who come within the personal scope of the agreement. The part relevant to this appeal is Article 10(1)(e)(ii) which says:

 

"(e) family members of the persons referred to in points (a) to (d), provided that they fulfil one of the following conditions:

...............................

(ii) they were directly related to a person referred to in points (a) to (d) and resided outside the host State before the end of the transition period, provided that they fulfil the conditions set out in point (2) of Article 2 of Directive 2004/38/EC at the time they seek residence under this Part in order to join the person referred to in points (a) to (d) of this paragraph;"

 

15.          The relevant part of point (2) of Article 2 of the CRD says:

 

"2) "Family member" means:

.........................................

(c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b);"

 

16.          Article 13, Title II of Part Two (residence rights) of the WA sets out the circumstances in which a person has residence rights for the purpose of that Part. The operative part of Article 13 in this appeal says:

 

"3. Family members who are neither Union citizens nor United Kingdom nationals shall have the right to reside in the host State under Article 21 TFEU and as set out in Article 6(2), Article 7(2), Article 12(2) or (3), Article 13(2), Article 14, Article 16(2), Article 17(3) or (4) or Article 18 of Directive 2004/38/EC, subject to the limitations and conditions set out in those provisions."

 

17.          Article 7 (2) of the CRD says:

 

"2. The right of residence provided for in paragraph 1 shall extend to family members who are not nationals of a Member State, accompanying or joining the Union citizen in the host Member State, provided that such Union citizen satisfies the conditions referred to in paragraph l(a), (b) or (c)."

 

18.          Article 18, Title II of Part Two (residence documents) of the WA sets out conditions relating to the issuing of residence documents in order to confer the rights under Title II. Article 18 is given effect in the UK through the EUSS (also known as the residence scheme rules).

 

19.          Article 22, Title II of Part Two of the WA says:

 

"In accordance with Article 23 of Directive 2004/38/EC, irrespective of nationality, the family members of a Union citizen or United Kingdom national who have the right of residence or the right of permanent residence in the host State or the State of work shall be entitled to take up employment or self-employment there."

 

EUSS - Appendix EU

 

20.          The way applications by family members of EEA citizens are dealt with under Appendix EU depends in part on whether or not the family members were in the UK before the end of the transition period (11pm 31 December 2020). If not, they are treated as applications by "joining family members" even if they are in the UK at the date of their application pursuant to Appendix EU. That is the situation for the appellant, so his application fell to be considered under paragraph EU11A (indefinite leave to remain) and, if he could not meet those requirements, under paragraph EU14A (limited leave to remain).

 

21.          In order to fully meet the definition of a 'joining family member of a relevant sponsor' as contained within contained within Annex 1 of Appendix EU, the appellant would have to show that he is the 'child' of a relevant sponsor.

 

22.          The relevant parts of the definition of 'child' (in force at the date of the appellant's application) say:

 

"(a) the direct descendant under the age of 21 years of a relevant EEA citizen (or, as the case may be, of a qualifying British citizen or of a relevant sponsor) or of their spouse or civil partner; or

..........................

(b)(i) the direct descendant aged 21 years or over of a relevant EEA citizen (or, as the case may be, of a qualifying British citizen or of a relevant sponsor) or of their spouse or civil partner; and

(ii) (unless the applicant was previously granted limited leave to enter or remain under this Appendix as a child on the basis that sub-paragraph (a) above applied or under its equivalent in the Islands on that basis) dependent on (as the case may be):

 

(aa) the relevant EEA citizen (or on their spouse or civil partner) at the date of application or, where the date of application is after the specified date, at the specified date; or

...............................

(cc) on the relevant sponsor (or on their spouse or civil partner) at the date of application

 

'dependent' means here that:

 

(a) having regard to their financial and social conditions, or health, the applicant cannot, or (as the case may be) for the relevant period could not , meet their essential living needs (in whole or in part) without the financial or other material support of the relevant EEA citizen (or, as the case may be, of the qualifying British citizen or of the relevant sponsor) or of their spouse or civil partner; and

 

(b) such support is, or (as the case may be) was, being provided to the applicant by the relevant EEA citizen (or, as the case may be, by the qualifying British citizen or by the relevant sponsor) or by their spouse or civil partner; and

 

(c) there is no need to determine the reasons for that dependence or for the recourse to that support" (my emphasis)

 

R (Ali)

23.          R(Ali) was concerned with the case of a Bangladeshi national who, aged 20, applied to enter the United Kingdom as the direct family member (child) of her mother pursuant to the CRD through the operation of the Immigration (European Economic Area) Regulations 2016 ("the EEA Regs"). She was issued with a family permit in that capacity and she entered the UK on 13 December 2014. On 9 October 2019 she applied to the respondent under the EUSS as the relevant family member of an EEA national. It was common ground that at the date of that application she had lived in the UK for five years; she was no longer a child within the meaning of the CRD and she was not dependent on her family as she was married, estranged from them and working. The respondent considered the application to be for 'permanent residence' but refused it on the basis the appellant could not show dependency throughout the five year period of residence on which she relied. As dependency was broken, the respondent decided the appellant lost her right of residence. The High Court agreed with the respondent and held that the condition of dependency was a continuing one. The Court further held that the right to work could be exercised throughout that period so long as it did not undermine continued dependency.

 

24.          The Court of Appeal disagreed and overturned the decision of the court below. Green LJ gave the leading judgement and held that the High Court had erred [110] because:

 

"111. First, the Court applied the wrong point in time for the determination of dependency. As to this consistent case law is to the effect that dependency must be measured as of the date of the application by the dependant to join the migrant EU worker in the host state. It follows that a consequential right of residence which flows from a decision taken at that point in time, by the competent national authority that a family member is dependent, is not lost when the family member exercises other rights (of which an example is the right to work).

 

112. Secondly, specifically in relation to the right to work, the Court applied the right under the WA and the CRD as permitting  only of an exercise of the right which did not undermine dependency. The right to work in Article 23 CRD is to be construed in a manner which renders it effective. There is no support in case law (or in Commission guidance or literature) for an interpretation of Article 23 CRD whereby a person (who was dependent at the time of the relevant application) can seek and obtain employment  only insofar as it does not result in a cessation of dependency. With respect, this approach leads, as the IMA and the appellant point out, to the emasculation of the very right itself. It is difficult to understand how an entitlement to work can be effectively exercised if it is limited to work which does not lead to independence, i.e. a lack of dependency. What happens, for instance, to a dependent 21 year old engaged in an apprenticeship scheme which does not pay sufficient to fund an independent lifestyle but which, upon completion, results in a pay increase which enables the apprentice to leave home? On the analysis of the Court below by accepting a living wage the apprentice loses the right to residence and thereby the right to continue to be employed which (assuming the child is not removed from the UK) then renders the child dependent, once again, upon the family which, at least in principle, allows the child yet again to seek employment. No policy objective recognised in law was advanced by the SSHD which justifies such a scenario. Furthermore, the solution applied by the Judge is a serious fetter upon the right to work and reside. Had it reflected the legislative intent one would have expected it to have been explicitly set out in the legislation, but it is not.

 

113. Thirdly, the Court failed to consider how the result arrived at was consistent with the duty to construe the WA and CRD in a manner which meets the test of equality and facilitates and protects fundamental rights which include the right to work, have a private life and to marry."

 

25.          Underhill LJ and Singh LJ disagreed with Green LJ as to the interpretation of EU jurisprudence but as Green LJ confirmed at [114] they were all agreed:

 

"as to the reasoning at the heart of this appeal and as to this we agree that the SSHD erred in law in the decision under challenge and that the Court below was wrong to approve that decision".

 

26.          Underhill LJ explained at [137] to [152] the basis of the disagreement but qualified his position at [154] when considering the impact of Case C-423/12 Reyes v Migrationsverket EU:C:2014:16 ("Reyes"), particularly [31]-[32] thereof, when he said that although it was contrary to his view it was not possible to "escape the conclusion that in it the Court holds that the right to work accorded to the family members by article 23 of the Directive trumps the requirement of continuing dependency in Article 7 (2)". He concluded at [158] by agreeing with Green LJ that the judge below had been wrong to reject Ms Ali's claim under Article 23 of the CRD.

 

27.          The Court declined to rule on whether or not the respondent should have issued pre-settled status to the appellant as that was not the principle issue and depended in part at least on the reason why the appellant was no longer dependent on her mother.

 

The position of the Parties

 

28.          The appellant's position is that his case sits on all fours with the decision in R (Ali) so it should be allowed. In the alternative, the evidence is sufficient to show the appellant remains dependent on his father.

 

29.          The respondent's position is that R (Ali) is of limited assistance, as the respondent's position is that the appellant's employment does not undermine dependency, although the respondent noted the comments of Underhill LJ at [148] as to the difference in the right to work for third party nationals compared to EU citizens. The respondent's position is that the issue is the lack of evidence as to the appellant's own financial circumstances and essential living needs. The respondent continues to assert the appellant is unable to demonstrate dependency in order to satisfy the requirements of Appendix EU.

 

Discussion

 

Application of R (Ali)

 

30.          Contrary to the submissions made on behalf of the appellant, his case does not align entirely with the position in R(Ali).

 

31.          The appellant was 21 years old when the appellant was issued with a family permit and when he entered the UK. His position is that he was under 21 when he applied for a family permit to enter the UK and join his father, although that is not clear from the papers. As confirmed at [166 (3)] of R (Ali), it matters little because either way, by issuing him with a family permit the respondent accepted he was child under 21 or was in fact dependent on his father as a child of 21 years of age or over, either being sufficient to be a 'family member'.

 

32.          The primary difference between the situation of Ms Ali and the appellant in the present appeal is the basis on which they originally applied to join their EEA citizen family member in the UK. Ms Ali's original application to join her family relied on the CRD (via the operation of the EEA Regs), made as it was in 2014. She later, in 2019, applied to the EUSS for permanent residence (indefinite leave to remain or settled status).

 

33.          The appellant's original application to join his father was made further to the WA as implemented by the EUSS. The application would have been made under Appendix EU (Family Permit) as the appellant was then outside the UK. It was made after the specified date, in other words after the UK had left the European Union.

 

34.          However, as already stated, the EUSS was designed to implement the WA. In turn, the WA preserves parts of EU law to those who come within its scope as set out within Article 10. In so far as the appellant is concerned, in order to come within personal scope of the WA, he would have needed to show he fell within the Article 10(1)(e)(ii) and in turn point 2 of Article 2 of the CRD (see [14]-[15] above).

35.          As the respondent issued the appellant with a family permit, it follows the respondent accepted the appellant came within scope of the WA as implemented by Appendix EU (Family Permit). Therefore, once he arrived in the UK he was entitled to a right to reside pursuant to Article 13 (applying Article 7(2) of the CRD) as conferred by his permit issued on 5 December 2022 (pursuant to Article 18). As a family member with a right of residence, the appellant would have the right to work applying Article 22 of the WA incorporating the equivalent right contained within Article 23 of the CRD.

 

36.          To this extent, in my judgement, the appellant's position is no different to Ms Ali notwithstanding the different ways in which they arrived at their respective positions. Although Ms Ali was relying initially on CRD rights directly, those rights are preserved by the WA and at the time of both their applications which formed the subject of their onward appeals, they were applying under the EUSS reflecting, then, their rights under the WA.

 

37.          Unlike Ms Ali, the appellant did not expressly apply for indefinite leave to remain, but I do not find that to be material. The structure of Appendix EU requires the respondent to first consider if someone is eligible for indefinite leave to remain and only if not, consider if they are eligible for limited leave to remain. Whilst the latter does not require the appellant to show a continuous qualifying period of 5 years (as Ms Ali had to), Appendix EU still requires him to prove dependency to qualify for limited leave. One of the principle issues in R (Ali) was the date on which dependency is to be assessed. That flowed into whether it could be broken by exercising the right to work and/or whether it was necessary to show it throughout the entirety of the five year period relied on to seek indefinite leave. It is only the latter point of the continuing dependency throughout the continuous qualifying period which distinguishes Ms Ali's position from the appellant's. In my judgement, the other issues apply equally to an application for pre-settled status (limited leave to remain).

 

38.          It follows from all I have said, that I find the principles found in R (Ali) to apply to the appellant notwithstanding the differences in the factual matrixes as between him and Ms Ali and the fact that the appellant's original application to join his father was made under the WA not the CRD.

 

39.          I have set out above the relevant parts of Appendix EU in force at the date of the appellant's application [22]. I have italicised those sections which, in my judgement, apply to the appellant. It is plain that for someone in the appellant's circumstances Appendix EU requires them to prove dependency at the date of the application made under Appendix EU.

 

40.          That contrasts with what was held in R(Ali) when the Court found that dependency is to be measured at the date the family member applied to join the EU citizen in the United Kingdom.

 

41.          In my judgement, applying R (Ali), the date on which dependency is to be assessed is the date on which the appellant first applied to join his EEA citizen father in the United Kingdom. That assessment took place then and he was found to meet the necessary requirement to qualify as a child for the purposes of the Appendix (either as an under 21 year old or as a 21 year old dependent child).

 

42.          In my judgement, R (Ali) is authority for the proposition that when the appellant then applied for limited leave to remain in the UK as the child aged over 21 of a relevant sponsor, he was exercising residence rights pursuant to Article 13 of the WA (as conferred by the EUSS) and would not lose those residence rights by exercising other rights conferred by the WA such as the right to work (Article 22).

 

43.          I return to the preserved findings. There is no basis in my judgement to find any reason to doubt the appellant's ongoing dependency on his father save that he was working. That much is clear from the preserved findings as summarised at [6] above. The appellant remains housed and fed by his father. Even were it the case that his part-time earnings were sufficient to enable him to pay for his essential needs without reliance on his father, that situation would have arisen solely as a result of the appellant exercising his right to work. Applying R (Ali), this would not be sufficient to end his residence rights conferred as they were the issue of a Family Permit pursuant to Appendix EU (Family Permit).

 

44.          I am satisfied that the respondent's refusal of the appellant's application amounts a breach of his residence rights under the WA.

 

Application of Appendix EU

 

45.          I have set out the relevant requirements for the appellant to meet in order to succeed pursuant to Appendix EU. I have italicised those sections which in my judgement apply to the appellant.

 

46.          Even if I am wrong about the application of R(Ali) to this case, the undisturbed finding that the appellant is housed and fed by his father is sufficient, in my judgement, to show that the appellant depends on his father for housing and sustenance as a matter of fact. Even were the appellant able to afford to pay for rent and food from his earnings, the following clause within the definition of dependency in Appendix "(c) there is no need to determine the reasons for that dependence or for the recourse to that support" means, in my judgement, that the appellant is not disqualified from an ability to show dependency when he relies on his father for at least these aspects of his essential needs.

 

47.          In this alternative finding, the respondent's decision does not just mean that the appellant's rights under the WA are breached but also that the respondent's decision is not in accordance with the residence rights immigration rules.

 

48.          Whether it be pursuant to the WA or the residence scheme rules, I am satisfied the appellant has shown that the respondent's decision was unlawful and his appeal against that decision must be allowed.

Notice of Decision

 

The decision of the First-tier Tribunal having been set aside, the appeal is re-made by the Upper Tribunal and it is allowed.

 

 

SJ Rastogi

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

3 February 2025