In this case, MR, the respondent, a thirty three year old Brazilian mother, applied for a derivative residence card pursuant to the Immigration (European Economic Area) Regulations 2006. The application was refused but the First-tier Tribunal upheld the appeal. The Home Office frivolously appealed to the Upper Tribunal. McCloskey J took the opportunity to lay down some markers about the threshold of arguability when granting permission to appeal. He was unhappy with the Home Office but he also seemed sceptical about the July 2012 amendments to the regulations, which for him “purportedly” gave effect to the CJEU’s jurisprudence and enabled persons satisfying regulation 15A “to qualify for a so-called ‘derivative’ right of residence.”
Mentioning Case C-200/02 Chen and Case C-434/09 McCarthy in his concise determination, McCloskey J neatly explained, “this species of right [‘indirect in nature’] does not stem directly from Directive 2004/38/EC” and “it is derivative, in the sense that where it arises it derives from the status of a relevant EEA national and the direct rights attendant thereon.” The only question on appeal was whether MR’s child would be unable to remain in the UK in the event she was refused a derivative residence card? Unsympathetic to the mother’s case, the Home Office contended that the father would able to care for the child and so it was acceptable for the mother to leave the UK.
The First-tier judge did not agree with this conclusion because the evidence proved that MR had always been the primary carer of her child (who would not be able to live with her father if MR left the UK). The President applauded the First-tier judge’s precision and evaluation of alternatives such as the possibility of the child living with the father’s relatives or living in some statutory care framework. Nothing suggested that the judge had misdirected himself in law but permission was nevertheless granted on the ground that he should have decided in the Home Office’s favour rather than diminishing its evidence.
McCloskey J said at para 5 that the grounds of appeal were “a simple quarrel with the Judge’s assessment of the various pieces of evidence considered and ensuing findings, nothing more and nothing less” and in light of Nixon (permission to appeal: grounds)  UKUT 368 (IAC) he lamented at para 6 that the Home Office’s application for permission to appeal failed to adhere to the rules and principles, i.e. rule 33(5) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (or rule 24(5) of the earlier 2005 rules).
McCloskey J was also frustrated that permission to appeal was granted and the judge granting permission found the grounds to be “arguable”. For him, the grounds failed “to articulate any identifiable or recognisable error of law”. He was also unhappy with the terms on which permission was granted and he reiterated para 8 of Nixon and emphasised that “a reasoned decision is always required in respect of each and every ground, which reinforces the necessity of considering all grounds with scrupulous care.”
Not one to mince his words, the President said at para 8 that the First-tier judge’s decision “was unimpeachable” and the appeal against it was “launched on a wing and a prayer.” He therefore thought that the Home Office’s rather desperate application for permission to appeal “was manifestly devoid of any substance or merit and should have been exposed accordingly.”
In a nutshell, the President explained:
(1) A judge considering an application for permission to appeal to the Upper Tribunal must avoid granting permission on what, properly analysed, is no more than a simple quarrel with the First-tier Tribunal judge’s assessment of the evidence.
(2) When granting permission to appeal to the Upper Tribunal, it is unsatisfactory merely to state that the applicant’s grounds are arguable.
(3) The requirement, emphasised in Nixon (permission to appeal: grounds)  UKUT 368 (IAC), to engage with each and every ground of application, need not involve anything of an unduly elaborate, burdensome or analytical nature. The reasons for granting or refusing permission to appeal, in whole or part, in any given case will almost invariably be capable of being expressed in a concise and focused manner.
It is nice to see the Home Office get some stick. Generally, they seem to be immune from any liability arising out of negligence and incompetence. Judges fail to restrain the HOPOs and endorse their convoluted understanding of immigration law at every opportunity. For example, a tribunal judge will even “advise” a recognised refugee that his pre-flight child now living in indigence in DRC should enter the UK under Appendix FM. For the judge, the new rules will be the products of benign social policy and an expression of the fact that all immigration law is inherently discriminatory.
And of course, the Home Office will delight in making a refugee cry by cross-examining him on his asylum claim in his daughter’s family reunion appeal and ask “so Mr X, where is your wife now? What happened to her?” – he will break down in tears and reply “she used to visit me when I was in prison in Angola, so after I escaped she tried to visit and the soldiers raped her and killed her”. Even the interpreter will jump up in her seat and disapprove of the questioning. The hearing will need to be paused for a few minutes. Inevitably, the First-tier judge will put Appendix FM first and the family reunion rules an article 8 second. To suit principles of policy, she will gladly sacrifice the unity of the refugee family. Despite DNA evidence of paternity, and a translated birth certificate, the judge will want to see “more evidence”.
Clueless to their real meaning, the official from the Home Office will randomly name cases. She will undermine her own case and even produce a full copy of presidential guidance directed to the entry clearance staff in Nairobi so that they grasp that the best interests of a child are usually best served by being with both or at least one of their parents. Accustomed to such incompetence, the judge will ostensibly sympathise with the sponsor and his child but in reality she will be not be moved. She will not care that when asked about the conditions in which his child lives, the sponsor replied: “you would not let your dog live there.”
But it does not end there. On the way out, unprompted, the African and Asian tribunal guards will say, “there is no justice here.” In the early days of December 2014, drawing parallels with the killing of Eric Garner by the New York Police Department, the tribunal guards unreservedly complain “I can’t breathe” – “no justice for immigrants” they say. For a foreigner engaging in participant observation, such voices are quite telling about the British justice system. To be honest, going to the immigration tribunal is like going to Karachi. Each time you visit, things are a little bit worse than they were the last time. Unfortunately, it will take a lot more than one critical decision by the President to make things better.