Here are the head notes from some new signifncant UT reported cases covering a wide range of topics. I have hyperlinked to the full judgments on Bailii:
Kunwar (EFM - calculating periods of residence) [2019] UKUT 63 (IAC) (28 December 2018)
(1) An "extended family member" ("EFM") of an EEA national exercising Treaty rights in the UK (such as a person in a durable relationship) has no right to reside in the UK under the Immigration (EEA) Regulations until he or she is issued with the relevant residence documentation under reg 17(4) of the 2006 Regulations (now reg 18(4) of the 2016 Regulations).
(2) Following Macastena v SSHD [2018] EWCA Civ 1558 , it is clear that it is not possible to aggregate time spent in a durable relationship before the grant of a residence document with time spent after a residence document is issued, for the purpose of the calculating residence in accordance with the Regulations.
(3) Once such a document is issued however, then the EFM is "treated as a family member" of the EEA national and may then have a right to reside under the Regulations (reg 7(3)).
(4) Consequently, a person in a "durable relationship" with an EEA national can only be said to be residing in the UK "in accordance with" the Regulations once a residence document is issued. Only periods of residence following the issue of the documentation can, therefore, count towards establishing a 'permanent right of residence;' under reg 15 based upon 5 years' continuous residence "in accordance with" the Regulations.
(5) The scheme of the 2006 and 2016 Regulations in respect of EFMs is consistent with the Citizens' Directive (Directive 2004/38/EC). The Directive does not confer a right of residence on an individual falling within Art 3.2 including a person in a "durable relationship, duly attested" with an EU national but only imposes an obligation to "facilitate entry and residence" following the undertaking of an "extensive examination of the personal circumstances" of individuals falling within Art 3.2.
1. The approach to interpreting a provision of EU law requires a systematic approach , looking at the words in the context of the structure of EU law as a whole and asking:
(i) Is the meaning of the provision defined in EU Law?
(ii) If not, can the words be given their usual, ordinary meaning?
(iii) If not, what are the possible different interpretations?
(iv) What is the objective of the provision?
(v) Which interpretation best preserves its effectiveness?
(vi) Which interpretation best achieves the objective?
(vii) What are the consequences of the different interpretations?
2. (i) The phrase "family member.....who has been allowed to reside as a beneficiary of international protection" in Article 9 of Dublin III is to be interpreted as including a person who has, since the grant of international protection, acquired the nationality of the an EU member state; and,
(ii) The phrase "persons concerned" in Article 9 of Dublin III does not include the family member or members previously granted international protection in the requested state.
(1) Although all cases are fact-specific, the following general guidance represents the approach the Upper Tribunal is likely to adopt in deciding whether a child applicant in immigration judicial review proceedings requires a litigation friend to conduct proceedings on the child's behalf:
(a) As a general matter, applicants aged 16 or 17 years, without any attendant vulnerability or special educational need or other characteristic denoting difficulty, will be presumed to have capacity and so be able to conduct proceedings in their own right. They will generally not require a litigation friend. This is the position even if they are not legally represented.
(b) The appointment of litigation friends for applicants between the ages of 12 years and 15 years inclusive (i.e. 12 and over but younger than 16) needs to be considered on a case-by-case basis and the circumstances which should be considered, but which are not exhaustive, are:
(i) whether the applicant is legally represented;
(ii) whether there is an assisting parent;
(iii) whether there is a local authority involved; and
(iv) whether the applicant has any type of vulnerability.
(c) If an applicant in this age group is legally represented, the Tribunal will expect the representative specifically to address in writing the issue of whether, in the representative's view, a litigation friend is necessary, having regard to capacity and the position of any parent.
(d) Applicants under the age of 12 will normally require a litigation friend.
(2) The above approach is one that, as a general matter, should also be followed in appeal proceedings, whether in the First-tier Tribunal or the Upper Tribunal.
(3) In deciding who is to be a litigation friend in a particular case, the guiding principles, derived from the Civil Procedure Rules, are:
(a) can he or she fairly and competently conduct proceedings on behalf of the child?
(b) does he or she have an interest adverse to that of the child?
(4) For practical purposes, only one person should normally be nominated as a litigation friend. A parent of a child will often be the obvious choice but not the only option.
Human rights appeals
(1) In a human rights appeal under section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002, a finding that a person (P) satisfies the requirements of a particular immigration rule, so as to be entitled to leave to remain, means that (provided Article 8 of the ECHR is engaged), the Secretary of State will not be able to point to the importance of maintaining immigration controls as a factor weighing in favour of the Secretary of State in the proportionality balance, so far as that factor relates to the particular immigration rule that the judge has found to be satisfied.
(2) The fact that P completes ten years' continuous lawful residence during the course of P's human rights appeal will generally constitute a "new matter" within the meaning of section 85 of the 2002 Act. The completion of ten years' residence will normally have a material bearing on the sole ground of appeal that can be advanced in a human rights appeal; namely, whether the decision of the Secretary of State to refuse P's human rights claim is unlawful under section 6 of the Human Rights Act 1998. This is because paragraph 276B of the Immigration Rules provides that a person with such a period of residence is entitled to indefinite leave to remain in the United Kingdom, so long as the other requirements of that paragraph are met.
(3) Where the judge concludes that the ten years' requirement is satisfied and there is nothing to indicate an application for indefinite leave to remain by P would be likely to be rejected by the Secretary of State, the judge should allow P's human rights appeal, unless the judge is satisfied there is a discrete public interest factor which would still make P's removal proportionate. Absent such factors, it would be disproportionate to remove P or require P to leave the United Kingdom before P is reasonably able to make an application for indefinite leave to remain.
(4) Leaving aside whether P has any other Article 8 argument to deploy (besides paragraph 276B) and in the absence of any policy to give successful human rights appellants a particular period of limited leave, all the Secretary of State is required to do in such a case is grant P a period of leave sufficient to enable P to make the application for indefinite leave to remain. If P subsequently fails to make such an application, P will continue to be subject to such limited leave as the Secretary of State has granted in consequence of the allowing of the human rights appeal.
Statements of additional grounds
(5) A statement of additional grounds for the purposes of section 120 of the 2002 Act must be made in writing.
PAA (FtT: Oral decision - written reasons) [2019] UKUT 13 (IAC) (10 January 2019)
- In accordance with rule 29(1) the First-tier Tribunal may give a decision orally at a hearing.
- If it does so, that is the decision on the appeal, and the effect of Patel v SSHD [2015] EWCA Civ 1175 is that there is no power to revise or revoke the decision later. The requirement to give written reasons does not mean that reasons are required in order to perfect the decision.
- If the written decision, when issued, is inconsistent with the oral decision, both decisions, being decisions of the Tribunal, stand until set aside by a court of competent jurisdiction; but neither party is entitled to enforce either decision until the matter has been sorted out on appeal.
- In such a case, as in any other, time for appealing against the decision given at the hearing runs, under rule 33 (2) and (3), from the date of provision of the written reasons, however inappropriate the reasons may appear to be, subject to any successful application for extension of time.
AK and IK (S.85 NIAA 2002 - new matters : Turkey) [2019] UKUT 67 (IAC) (1 February 2019)
If an appellant relies upon criteria that relate to a different category of the Immigration Rules to make good his Article 8 claim from that relied upon in his application for LTR on human rights grounds or in his s.120 statement such that a new judgment falls to be made as to whether or not he satisfies the Immigration Rules, this constitutes a "new matter" within the meaning of s.85(6) of the Nationality, Immigration and Asylum Act 2002 which requires the Secretary of State's consent even if the facts specific to his own case (for example, as to accommodation, maintenance etc) remain the same.