Has Chavez-Vilchez altered the approach to derivative claims for residence in the UK?

Sarmiento and Sharpston view Zambrano (C-34/09, EU:C:2011:124), which caused a stir because of the substance of rights test, as a “high-water mark” in the CJEU’s jurisprudence. Thereafter, the court began to suffer from “citizenship exhaustion” and the “test was shelved under the section reserved for judgments of last resort to be used in exceptional circumstances only” because of the restrictive approach taken in Dereci (C-256/11, EU:C:2011:734) and O and B (C-456/12, EU:C:2014:135). In Zambrano, which like Rottman (C-135/08, EU:C:2010:104) concerned a purely internal situation, the CJEU held that article 20 TFEU precludes national measures which have the effect of depriving EU citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union. The appeals of Patel and Shah provide the Supreme Court with the opportunity to address the question whether the decision in Chavez-Vilchez (C-133/15, EU:C:2017:354, discussed here) has altered the approach to the question of derivative claims for residence in the UK by those without rights of residence, based upon their care of British citizens who are their “direct relatives”. Chavez-Vilchez concerned eight third-country national mothers of EU citizen children. By contrast, both of Mr Nilay Patel’s parents are British citizens. He is an Indian national who entered the UK as a student. But he provides primary care to his elderly father who suffers from final stage kidney disease.

His mother has a heart problem and suffers from poor mobility owing to very poor knee function. Mr Patel’s application for ILR outside the rules was refused and the appeal was dismissed. Mr Adil Shah is a Pakistani national. He entered the UK as a student and is the primary carer for his British citizen child. His wife is a British citizen and works full-time. Mr Shah’s student visa was revoked and he was unsuccessful in his human rights claim. Both applied for a derivative residence card under regulation 15A of the then Immigration (European Economic Area) Regulations 2006 whereby, in order to implement Zambrano, a non-EU citizen is entitled to a derivative right to reside in the UK if they are a primary carer of a British citizen residing in the UK and the British citizen would not be able to reside in the UK or another EEA state if the non-citizen were made to leave. The decision-maker refused to grant a residence card in both cases on the basis that the relatives they cared for would not be forced to leave the UK if the appellants left. Both the FTT and the UT allowed Mr Shah’s appeal. However, both tiers of the tribunal dismissed Mr Patel’s appeal. The Court of Appeal subsequently held that Chavez-Vilchez did not alter the Zambrano principle and Irwin LJ found that reported cases in England that implement Zambrano but pre-date Chavez-Vilchez do not hold diminished authority.

Court of Appeal holds that a ‘director’s loan’ does not have a specialist meaning in Tier 1 (Entrepreneur) applications

R (Sajjad) v Secretary of State for the Home Department [2019] EWCA Civ 720 (17 April 2019)

In a Pakistani businessman’s appeal against the dismissal of his application for judicial review against the refusal of his application for further leave to remain as a Tier 1 (Entrepreneur) of the points based system (PBS), the Court of Appeal has held that the phrase “director’s loan” in paragraph 46-SD(a)(iii) of Appendix A of the Immigration Rules does not have a specialist meaning. The expression simply means a loan made by a director to their company and it covers any transaction whereby a director paid money to or for the benefit of the company on the basis that it would one day be repaid. The outcome yet again shows that the PBS requires strict compliance with the rules. Mr Sajjad entered the UK in 2011 with limited leave to enter as a Tier 1 (Entrepreneur). On 1 April 2015, he sought to extend his leave by claiming points on the basis of his investment in a UK company – i.e. Blanco Coffee Limited, latterly trading as Sajjad’s Grill and Restaurant – of which he was the sole director at all material times. The accounts provided showed that he had invested £495,470 in the company but he made the mistake of entering the words “not applicable” in a section of the application form headed “legal agreement (for director’s loans only)”. A summary of the company’s creditors showed a balance of £560,787 outstanding on the Director’s Current Account as at 15 March 2015.

The application was refused due to non-compliance with paragraph 46-SD(a)(iii) because no director’s loan agreement had been provided evidencing Mr Sajjad’s investment and showing the terms and period of the loan, the interest payable, and confirming that the loan was unsecured and subordinated in favour of third-party creditors. Compliance with the rule was mandatory and the UT refused to grant permission to seek judicial review. Elisabeth Laing J held that the decision-maker was entitled to refuse the application because the requirement to submit a director’s loan agreement had not been complied with. But her judgment was appealed on two grounds. First, that Mr Sajjad’s investment in his company did not take the form of a “director’s loan” within the meaning of paragraph 46-SD(a)(iii) and he was therefore not required to file a legal agreement detailing the terms of the loan. Second, Mr Sajjad submitted that in the alternative that the phrase “a director’s loan” is unclear, and that it was unfair and unreasonable for the decision-maker to refuse his application in reliance on that ambiguity without first contacting him or giving him a chance to comply.

Paragraph 322(5) and Tier 1 (General): Home Office policy of refusing ILR in earnings discrepancy cases is ‘legally flawed’

Balajigari v Secretary of State for the Home Department [2019] EWCA Civ 673 (16 April 2019)

In a complex judgment, the Court of Appeal has held that the ongoing use of paragraph 322(5) of the Immigration Rules in the cases of highly skilled Tier 1 (General) migrants (T1GMs) is “legally flawed” because decision-makers are proceeding directly from finding that the earnings discrepancies in T1GM applications are the result of dishonesty, without giving applicants an opportunity to proffer an innocent explanation. Albert, Balajigari, Kawos and Majumder all appealed against the dismissal of the refusal of permission to apply for judicial review or of their substantive claim. The Court of Appeal noted that there are over 70 other appeals or applications for permission to appeal pending before the court and an unknown number of challenges pending in both tiers of the tribunal. Underhill, Hickinbottom and Singh LJJ held that where the decision-maker is minded to refuse indefinite leave to remain (ILR) under paragraph 322(5) on the basis of the applicant’s dishonesty, or other reprehensible conduct, it is necessary as a matter of procedural fairness to indicate clearly to the applicant that the decision-maker has that suspicion, so as to give the applicant an opportunity to respond. The Home Office is required to take that response into account before concluding that there has been such conduct. The court said that refusal was “functionally equivalent” to a removal decision and that the lack of a “minded to refuse” letter rendered the refusal decisions procedurally unfair.

In the present “earnings discrepancy” cases T1GM applicants were refused ILR because of discrepancies between earnings figures declared in applications for leave to remain and the figures declared in their tax returns for equivalent periods or, in Majumder’s case, a failure to file any return. Overall, the result of these proceedings was that each of these four appeals was allowed. Moreover, in all the appeals except in Majumder’s matter, where the decision to refuse ILR was quashed, the case was remitted to the UT. As a preliminary point, Underhill, Hickinbottom and Singh LJJ expressed their displeasure with all the representatives involved, those of the appellants and the Home Office, for breaching the case management directions and the deadlines for filing skeleton arguments and violating the rules on their length. Their Lordships lamented “these failures made the court’s task in pre-reading a good deal more difficult.” However, in light of the complexity and general importance of these proceedings, such failures were only minor hiccups. In its heyday the highly skilled route attracted up to 10,000 migrants a year to the UK. But was it closed in order to bring migration down to the “tens of thousands”.

Seven Year Rule: Immigration History of Parents is Irrelevant

The Secretary of State for the Home Department v AB (Jamaica) & Anor [2019] EWCA Civ 661 (12 April 2019)

As discussed earlier in the analysis of JG (section 117B(6): “reasonable to leave” UK) Turkey [2019] UKUT 72 (IAC), the Court of Appeal has held that for the purposes of section 117B(6) of the Nationality, Immigration and Asylum Act 2002, the public interest does not require a person’s removal where that person had a genuine and subsisting parental relationship with a child and it would not be reasonable to expect the child to leave the UK. Moreover, Underhill, King and Singh LJJ also took the view that whether there is such a parental relationship depends on the individual circumstances of the case, and it is not a requirement of section 117B(6) for there to be a realistic prospect of the child leaving the UK as a consequence of the person’s removal. Among other things, the judgment is further confirmation that the parent’s immigration history plays no part in the statutory mechanism set out in section 117B(6) because in the present cases Singh LJ concurred with the presidential panel in JG that the provision requires a court or tribunal to hypothesise that the child in question would leave the UK, even if this is not likely to be the case, and ask whether it would be reasonable to expect the child to do so. The present cases concerned the Home Office’s appeals against the UT’s decisions that the public interest did not require AB and AO’s removal pursuant section 117B(6).

AB, a Jamaican national who arrived to the UK in 1999 (or 2002) had a son who was born in the UK and whom he saw around three times a week. He was at first unsuccessful in challenging the decision to refuse him leave to remain in the UK before the FTT. But DUTJ Grimes held that AB’s removal would disproportionately interfere with his rights under article 8 of the ECHR and decided that section 117B(6) applied and so the public interest did not require his removal because, as required by section 117B(6)(a), he had a genuine and subsisting parental relationship with his British son “R” and, as required by section 117B(6)(b), it would not be reasonable to expect the child to leave the UK. AO, a Nigerian national who had come to the UK aged 12, had a British son “I”. However, due to a family court order, AO was only allowed to communicate with I in writing and AO’s leave was curtailed in 2014. The FTT decided that AO’s proposed removal would have interfered with his family life with I sufficiently to engage article 8. FTTJ Pacey held that contact, even in writing, would be less easy if AO was in Nigeria and I would discover that he had moved far away. Moreover, that interference was disproportionate. Subsequently, the UT upheld the decision on the basis that AO satisfied the conditions in section 117B(6).

Fraud and revocation of ILR: Court of Appeal unlocks the door to the finality of unappealed tribunal decisions

Ullah v The Secretary of State for the Home Department [2019] EWCA Civ 550 (03 April 2019)

The Court of Appeal recently dismissed a Pakistani immigrant’s appeal against the refusal of his judicial review claim challenging the decision to cancel his Indefinite Leave to Remain (ILR) in the UK. Controversially, the ruling imports into immigration law the legal test in Ladd v Marshall [1954] EWCA Civ 1 applicable to the admission of new evidence in private law cases and, on the basis of an anonymous tip-off, it strangely unlocks the door to the finality of unappealed tribunal decisions which are meant to be binding on the parties. Despite the present Pakistani appellant’s fraudulent behaviour, which probably justifies the harsh result in his case, the outcome will allow the Home Office to simply disregard tribunal decisions where it lost and did not bother to appeal. The approach is problematic because it enables decision-makers to unilaterally change settled judicial findings without affording any right of appeal. Ladd v Marshall articulates a three-part test. First whether the evidence now relied upon could with reasonable diligence have been discovered earlier prior to the trial. Second, whether that evidence was likely to have had an impact on the case, namely that it had an important if not necessarily decisive influence in the decision. Third, the evidence must be apparently credible although not incontrovertible. Mr Rehmat Ullah applied for ILR in November 2011 on the basis of having been in the country for 14 years. The application was refused in March 2012.

However, FTTJ Turkington allowed his appeal in June 2012 and ILR was granted to Mr Ullah as the Home Office accepted the decision and did not appeal. But later in 2013, an unknown person sent a “denunciation” of Mr Ullah to the Home Office which brought into question the past basis upon which he had applied for ILR in 2011 and on which the FTT had found in his favour. In March 2016, his leave was cancelled and these judicial review proceedings raised the rather tricky question of the principles arising when, after initially unsuccessfully resisting an appeal to the FTT from a decision to grant ILR, the Home Office thereafter finds fresh evidence suggesting that the original claim to ILR had been fraudulent. It was alleged that Mr Ullah had obtained a passport and visas under a date of birth different to that provided in the application for ILR. In defence of the judicial review claim, the Home Office provided photocopies of passports issued in November 2000 and in December 1995, with an original entry of a birth date of 4 January 1952, which had been changed to 20 February 1960. After receiving his ILR, Mr Ullah twice visited Pakistan in 2013 and encountered no problems with immigration officials on return to the UK.

No presumption favouring revocation of deportation order after 10 years says Court of Appeal

EYF (Turkey) v Secretary of State for the Home Department [2019] EWCA Civ 592 (11 April 2019)

In relation to the proper construction of paragraph 391(a) of the Immigration Rules, which concerns the continuation of deportation orders in relation to those individuals sentenced to less than four years’ imprisonment, the Court of Appeal has held that the question of revocation of a deportation order will depend on the circumstances of the individual case. In a judgment given by Sir Ernest Ryder (Senior President of Tribunals) and Davis and Haddon-Cave LJJ, the court found that there is no presumption in favour of or against revoking a deportation order after 10 years had elapsed after the order had been made. EYF, a Turkish citizen, entered the UK with his family in 2000 and claimed asylum which was refused and the appeal dismissed in 2001. He went to Manchester Airport with his wife and seven-year old daughter on 11 February 2003 and outside the airport’s entrance he set various immigration papers alight. When police officers arrived he dowsed himself, his wife and his daughter in petrol and threatened to set himself and his family on fire. He also threw petrol at the officers. In March 2003, he was convicted of affray and sentenced to two years’ imprisonment. Thus, the Home Office wished to deport him and in November 2004 his appeal was dismissed and permission to appeal was refused. Thereafter, he became appeal rights exhausted and in September 2005 he was deported to Turkey. Subsequently, in January 2008 he applied for entry clearance in Turkey.

The application was refused owing to the extant deportation order. The First-tier Tribunal allowed his appeal but the Upper Tribunal upheld the refusal and the Court of Appeal refused permission to appeal. In November 2009, EYF applied for the deportation order to be revoked. However, the decision-maker refused to revoke the deportation order in September 2010. Again, both tiers of the tribunal dismissed his appeal and the Court of Appeal refused permission to appeal. Later in May 2013, he made another application to revoke the deportation order. The decision-maker refused to revoke the deportation order on 5 June 2015, which was the decision relevant for the purposes of the present appeal. Following the tribunal’s direction, the decision-maker made a supplementary decision on 29 March 2016 and upheld the earlier decision to revoke the deportation order and the First-tier Tribunal took this into account while dismissing EYF’s appeal on 4 July 2016. Later on 29 June 2017 the Upper Tribunal (UTJ Eyre QC) dismissed the appeal on the two grounds of appeal canvassed before him.

Section 117B(6) after KO (Nigeria): Presidential panel allows dishonest Turkish mother’s appeal

JG (section 117B(6): “reasonable to leave” UK) Turkey [2019] UKUT 72 (IAC) (15 February 2019)

The Supreme Court’s decision in KO (Nigeria) [2018] UKSC 53 (discussed here) was a seminal judgment. Yet it was seen as “deeply unsatisfactory” in some respects because Lord Carnwath left open the question of “reasonableness” by holding that the best interests assessment must be conducted in “the real world in which the children find themselves.” In doing so his Lordship endorsed the approach in SA (Bangladesh) 2017 SLT 1245 and EV (Philippines) [2014] EWCA Civ 874 that the child’s right to remain does not automatically guarantee that the parents will be granted leave to remain as well. In the present case, Mr Justice Lane held that section 117B(6) of the Nationality, Immigration and Asylum Act 2002 requires a court or tribunal to hypothesise that the child in question would leave the UK, even if this is not likely to be the case, and ask whether it would be reasonable to expect the child to do so. He rejected the idea that paragraphs 18 and 19 of KO (Nigeria) support a construction of section 117B(6)(b), whereby the application of subsection (6) depends upon a tribunal finding, on the particular facts of the case, that the child will be expected to leave the UK if the person concerned is removed. Instead, he preferred the submission that such a construction is not possible, purely as a matter of statutory interpretation, and that nothing in KO (Nigeria) permits the tribunal to hold otherwise. The Court of Appeal has upheld his core reasoning in AB (Jamaica) [2019] EWCA Civ 661.

Lane J made the preliminary point that the provisions addressing article 8 of the ECHR and public interest considerations in Part 5A of the 2002 Act have received an intense amount of judicial analysis in comparison to normal laws. He rejected the claim that a full-blown proportionality assessment, taking full account of the immigration history of the parent subject to removal, is nonetheless required in cases where the child would not in practice leave the UK. In Lane J’s view, it was pointless to persist that there could still be a very real difference between the outcome of the proportionality assessment and an appraisal pursuant to section 117B(6) because if “Parliament has decreed a particular outcome by enacting section 117B(6), then that is the end of the matter.” The appellant “JG” was “both dishonest and unscrupulous, each to a high degree”. Consequently, it was clear that this interpretation permitted an undeserving individual or family to remain in the UK. Indeed, in reality Parliament had legislated “to be more generous than is strictly required by the Human Rights Act 1998” and in MA (Pakistan) [2016] EWCA Civ 705 it was recognised that Part 5A has the aim of imposing greater consistency in decision-making in this area by courts and tribunals.