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New judgements from the Upper Tribunal

27 February 2013 Darren Stevenson Immigration

A ton of new Upper Tribunal judgements announced yesterday. All very interesting.Perhaps the most esoteric is a complex discussion of income support and benefits rates, in the context of adequate maintenance,  in "Ahmed (benefits: proof of receipt; evidence) [2013] UKUT 00084(IAC)". Unfortunately a lot of the assistance rendered by this judgement is nullified by Appendix FM. FM places less reliance on the broader terms of the old immigration rules which required that "the parties will be able to maintain themselves and any dependants adequately without recourse to public funds". However it is still very useful for applications still able to rely on old style rules. It also shows the utility of a forensic examination of financial issues. Detailed and considered submissions in these types of case involving financial questions are always useful at the tribunal.

However this blog post is going to focus on an EEA cases; "Bee and another (permanent/derived rights of residence) [2013] UKUT 00083 (IAC)."  There is another complex EEA case in the new batch; Ahmed (Amos; Zambrano; reg 15A(3)(c) 2006 EEA Regs) [2013] UKUT 00089 (IAC), but that will have to wait for another day.

Bee concerned the ability of a parent of an EEA child to acquire a permanent right of residence after establishing a derived right of residence (they can't), however that's not the focus of our post.

In Bee the appellants received a letter in response to an application made. It was in relatively vague terms but basically told the appellants they were not getting what they asked for.

There was a dispute about the jurisdiction of the tribunal to hear an appeal against an EEA decision. The EEA regulations of 2006, given force by S109 of the Nationality, Immigration and Asylum Act 2002 act simply state an “EEA decision” means a decision "under these Regulations that concerns a persons... entitlement to be issued with or have renewed, or not to have revoked, a registration certificate, residence card, document certifying permanent residence or permanent residence card."

A person can appeal against an 'EEA decision' under regulation 26 of the 2006 regulations. The Tribunal in Bee were prepared to take a purposive approach to this definition, concluding that an appeal could be mounted against the letter despite its vague terms.

The significance here is that the UKBA are very keen on rejecting perfectly correct EEA applications with a letter which says 'this is not a decision', but which often gives very detailed reasons why a person cannot get what they asked for. We have in various cases actually just decided to appeal these letters. This approach has been accepted by some Immigration Judges on the basis that the definition of 'EEA decision' has a pretty wide remit. Certainly writing on a bit of paper 'this is not a decision' isn't enough to deny the true character of the correspondence.

Appealing can have a lot of benefits. Often applying to the EEA team with any application that involves any complexity is like banging your head against a brick wall, with repeated rejections. An appeal is a chance to have an authoritative assessment of the issues and an Immigration Judge's determination on whether the appellant has a right under the directive and corresponding regulations.

The rights to appeal other immigration decisions are strictly defined, and whilst there are restrictions on EEA appeals, it does appear that it is not competent for UKBA to adopt a procedure allowing them to 'invalidate' applications and avoid a substantive decision leading to appeal. Unlike for example the Immigration Rules at paragraph 34 and the corresponding Fees regulations which make it possible to invalidate applications.

The Tribunal's acceptance in Bee of a wide definition of a 'decision' is very helpful and lends weight to the argument that in general an adverse result from an EEA application can be appealed to the First Tier Tribunal. The UKBA don't therefore have a unilateral ability to block applications and avoid challenge (excepting expensive JR).

There have recently been further restrictions on the rights to appeal, including the very questionable amendment heralded by the The Immigration (European Economic Area) (Amendment) (No. 2) Regulations 2012 which allows a right of appeal only when those applicants in durable relationships provide 'sufficient evidence to satisfy the Secretary of State that he is in a relationship with that EEA national'.

Quite how appeal rights can be restricted on the basis of an assessment that in itself should be capable of review by the Tribunal is another matter.  What is 'sufficient evidence'? We could certainly see the prospect that an appeal would be lodged anyway and then the tribunal assesses as a preliminary matter whether sufficient evidence was provided and therefore whether jurisdiction exists.

Digression aside, this judgement is useful and reveals the importance of reading a case in full. Often there are other interesting components that can be used, quite apart from the case summary and headline.



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