Secretary of State for the Home Department v MD & Ors

In his skeleton argument and the rule 24 response Mr Marziano makes repeated reference to the ‘date of decision’ or the appellants ‘date of arrival in the UK’. To begin with, it is worth highlighting that the eligibility requirements set out in paragraph FP6. of Appendix EU (Family Permit) must be satisfied at the date of application.

Where entry clearance in the form of an EUSS Family permit has been granted, the question whether the Secretary of State or an Immigration Officer is satisfied that it is proportionate to cancel any leave granted, falls to be considered by reference to the position at the date of that subsequent decision.

In order to meet the eligibility requirements for entry clearance under Appendix EU (Family Permit), paragraph FP6.(1)(c) requires that the relevant EEA citizen is either resident in the UK, or will be travelling to the UK with the applicant within six months of the date of application. The focus of FP6.(1)(c) is upon the relevant EEA citizen. They must either already be in the UK (i.e. resident in the UK) or they will be travelling to the UK with the applicant.

Paragraph FP6.1(d) imposes an additional requirement and is directed to the applicant. That is, the applicant will be accompanying the relevant EEA citizen to the UK (or joining them in the UK) within six months of the date of application. The reference to “them” in “joining them in the UK” can only sensibly be read as a reference to the applicant joining the relevant EEA citizen.

I do not accept that the definition of ‘joining’ in this context is much wider than that contended for by the respondent. The difficulty with the construction of the word ‘joining’ contended for by Mr Marziano, is that paragraph FP6.1(d) is not concerned with ‘the junction at which two parts are joined’, so that all that is required is that at the date of application the EEA citizen is resident in the UK and the applicant will be coming to the UK. That is to entirely misread and misconstrue the provisions. It involves either importing words into the provision that are not there, or to disregard the wording of the provision. If, as Mr Marziano submits, all that is required is that the EEA citizen in question be resident in the UK, unless they are overseas at the date of application, paragraph FP6.(1)(d) would be otiose. Paragraph FP6.(1)(c) on its own deals with the requirement that the relevant EEA citizen is in the UK, or will be travelling to the UK with the applicant within six months of the date of the application. On Mr Marziano’s construction, FP6.1(d) would add nothing.

The published guidance that Mr Marziano relies upon is simply guidance. It cannot be construed in the same way as primary or secondary legislation. The guidance refers to FP6.(1)(c) and (d) and states:

“This means that the relevant EEA citizen (or the qualifying British citizen) must either:

• be travelling with the applicant, at the same time, from the same country

• be resident in the UK before the applicant arrives”

As far as it goes, that is undoubtedly correct but that guidance is not in any way exhaustive. It assumes that the applicant is either travelling to the UK with the relevant EEA citizen or joining a relevant EEA citizen who is resident in the UK before the applicant arrives. There is no concession within that guidance that, as Mr Marziano submits, all that is required is that at the date of application, the relevant EEA citizen is resident in the UK, unless they are overseas, in which case there must be evidence of them travelling to the UK with the applicant.

If there were any doubt about that, one only has to turn to what is said in the guidance immediately preceding the passage that is emphasised by Mr Marziano, that I have cited at paragraph [11] above. The published guidance is absolutely clear that paragraphs FP6.(1)(c) and(d) must both be satisfied at the date of application.

In my judgment, the focus of paragraph FP6.(1)(d) is upon keeping the applicant and EEA citizen together (the applicant will be accompanying the relevant EEA citizen), or uniting or reuniting with them (joining them in the UK). If the relevant EEA citizen is resident in the UK at the date of application for the purposes of paragraph FP6.1(c), the applicant will not be accompanying the relevant EEA citizen to the UK because the EEA citizen is already resident in the UK. The applicant must therefore establish that they are ‘joining’ the relevant EEA citizen in the UK.

I accept, as Mr Lawson submits that the word ‘joining’ in this context must, applying the ordinary meaning of the word in the English language, mean that the applicant is being united or reunited with the relevant EEA citizen.

Mr Lawson and Mr Marziano both agree that the purpose of Appendix EU (Family Permit) is to provide, inter alia,  a basis, consistent with the Withdrawal Agreement with the European Union reached on 17 October 2019, and with the citizens’ rights agreements reached with the other EEA countries and Switzerland, for EEA and Swiss citizens resident in the UK by the end of the transition period at 2300 GMT on 31 December 2020, and their family members, to apply for the required leave to remain or enter.

Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States was concerned with the right of the family members, and other dependents of the Union citizen, also to exercise those rights. In summary, the primary objective of the Directive was to promote the right of free movement of EEA nationals. Having to live apart from family members or members of the family in the wider sense may be a powerful deterrent to the exercise of that freedom. An EEA national would not be 'free' to exercise the right of free movement under the underlying Directive absent consideration of their family circumstances and domestic responsibilities.

The primary objective of the underlying Directive is to promote the right of free movement of EEA nationals subject to limitations and conditions of public policy, public health, and public security. (See Recital 1). Family reunification is a corollary to the exercise of that right. It is axiomatic that an EEA national would not be 'free' to exercise the right of free movement absent consideration of their family circumstances. In my judgment, the focus of paragraph FP6.(1)(d) of Appendix EU (Family Permit) is upon keeping the applicant and EEA citizen together, uniting or reuniting them, and that is entirely consistent with the Directive.

In summary, the FtT judge recorded the undisputed facts at paragraphs [10] to [13] of her decision. She noted the appellants are the children of Mr Duah and that he is married to Ms Opoku, an EEA national resident in the UK with leave under Appendix EU. She noted that Mr Duah had been granted settled status on 7 July 2022 and that both he and Ms Opoku were employed in the UK when the appellants arrived on 2 December 2021.

The judge went on to refer to the applications made by the appellants and the reasons provided by the respondent for cancelling the entry clearance to the appellants following their arrival in the UK. She noted the claim made by the respondent that as at 29 December 2021 (the date of the decision to cancel the entry clearance granted) there has been a change of circumstances that is, or would have been, relevant to the appellants’ eligibility for entry clearance.

The judge found that Mr Duah and Ms Opoku remain married, and that the appellants are ‘family members of a relevant EEA citizen’ as defined in Appendix EU (Family Permit). That is, they are the children of the spouse or a relevant EEA citizen, and that all the family relationships continued to exist at the date of application.

At paragraphs [23] and [24] the judge said:

“23.

I find on balance the above evidence satisfies that Lydia was resident in the UK when the children arrived on the 02 December 2021. I therefore find on balance the Appellants satisfy the requirement that they travelled to the UK to join the relevant EEA citizen and their father in the UK.

24.

As regards the change in circumstances, I find on balance, Mr Duah’s evidence satisfies that Lydia gave her documents to be submitted with the Appellants applications to join them in the UK. I find the Home Office Guidance dated 06/04/2022 on FP6 (1) (c ) and FP6 (1) (d) of Appendix EU (Family Permit), only requires the EEA citizen to be resident in the UK before the Appellants arrival and not her consent (page 53. I find on balance the unchallenged evidence satisfies, that Lydia has been resident in the UK, since the 01 January 2015. She was at work in the UK when the Appellants arrived on the 02 December 2021 to join her and their father.”

The appeal before the FtT was against the respondent’s decision dated 29 December 2021 to cancel/revoke the appellants’ EUSS Family Permits, and refuse leave to enter the UK under Appendix EU (Family Permit). The issue at the heart of the appeal was whether it is proportionate to cancel that leave because since the entry clearance was granted, there has been a change in circumstances that is, or would have been, relevant to the appellants’ eligibility for that entry clearance such that their leave to enter ought to be cancelled.

The issue is dealt with in paragraph [24] of the judge’s decision. The reasons given are brief. I accept the reasons do not need to be lengthy, but reading the decision as a whole I am satisfied that the judge erred when she concluded at [24], relying upon the published guidance she had been referred to, that paragraphs FP6.(1)(c) and (d) “only requires the EEA citizen to be resident in the UK before the Appellants arrival and not her consent”. That, for the reasons I have set out in my analysis of the proper construction of paragraph FP6.(1)(d), is wrong in law.

To remain eligible for entry clearance, it was for the appellants to establish that they are ‘joining’ the relevant EEA citizen in the UK. That is, they were being united or reunited with the relevant EEA citizen. I add that paragraph FP6.1(d) is not concerned with the applicant travelling to the UK to join the relevant EEA citizen or their spouse(my emphasis). The words used in the provision expressly require that the applicant is accompanying the relevant EEA citizen or joining them. (my emphasis). A ‘relevant EEA citizen’, is defined in Annex 1 and the focus is upon the EEA citizen. Neither party suggests the definition of a ‘relevant EEA citizen’ extends to include the spouse or civil partner of an EEA citizen. It was not therefore sufficient that the appellants had come to the UK to join their father.

Although the judge referred to the interview of Ms Opoku conducted by an Immigration Officer on 17 December 2021, the judge did not engage with the record of the claim made by her during that interview that that she had not sponsored the appellants’ applications for a EUSS Family Permit, that their father had done so without her knowledge or consent, and her claim that she was unwilling to sponsor the applications. The appeal was heard in July 2022 and in her decision the judge accepted the evidence of Mr Duah that Ms Opoku had provided the documents that were required to be submitted with the appellants applications to join them in the UK.

The judge failed to engage with the information provided by Ms Opoku when she was interviewed and it was obvious from the evidence of Mr Duah himself that he and his partner had been separated for several months by the time the appeal was heard. The judge made no findings as to whether the appellants had in fact ever met Ms Opoku. Although the judge said she found the appellants had arrived on 2 December 2021 “to join [Ms Opoku] and their father”, by the 29^th December 2021 and certainly by the time the appeal was heard, the relationship between Ms Okolu and Mr Duah had broken down and Ms Opoku did not support the appellants’ application and they were not joining her in the UK. In my judgement, the judge’s assessment of the evidence was infected by the judge’s misinterpretation of the requirements of paragraph FP6.(1)(d), and her understanding that the “consent” of Ms Opoku, as the judge put it, was not required.

Standing back and reading the decision of the FtT as a whole, I am satisfied that the decision of the judge is infected by material errors of law and must be set aside.

Having found that the decision of the FtT involved the making of an error on a point of law, together with the FtT’s findings of fact, I have before me the evidence which was before the FtT on which I can re-make the decision in relation to the appellants’ appeals pursuant to section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007. By virtue of section 12(4) of that Act, I may make any decision which the FtT could make if it were re-making the decision and may make such findings of fact as I consider appropriate.

I have already referred to the findings that were made by the Judge. The judge found Mr Duah to be a credible witness.

There is no evidence that the appellants have ever lived with Ms Opoku either before, or after their arrival in the UK. As the judge found previously, Ms Opoku was resident in the UK at the date of the applications for entry clearance. The judge accepted Ms Opoku had provided Mr Duah with the documents necessary to support the appellants applications to join them in the UK. I am prepared to accept that at the date of the applications the appellants were to be joining Ms Opoku (the relevant EEA citizen) in the UK within six months of the date of the application. That much is uncontroversial because the appellants were granted entry clearance and the relevant EUSS Family Permits were issued to them by the respondent.

The question is whether it is proportionate to cancel that leave because since the entry clearance was granted, there has been a change in circumstances that is, or would have been, relevant to the appellants’ eligibility for that entry clearance, such that their leave to enter ought to be cancelled.

The record of the discussions between an Immigration Officer and the appellants upon their arrival in the UK [RB/C2/page 36] records that the appellants claimed they had been in regular contact with their father but “did not really know or had met their step mother Lydia”. When Ms Opoku was interviewed on 17 December 2021 [RB/D2/pages 38 – 41], she said that she had not seen the appellants, she only knew the name of one of the appellants and she did not wish to sponsor the appellants.

The evidence of Mr Duah as set out in his witness statement dated 30 June 2022 was that after the appellants’ applications had been submitted Ms Opoku’s behaviour towards him changed, and when she was told the applications were granted “…her behaviour was awful and I could sense danger for my children because when Lydia is angry, she could do bad and worsen things..”. His evidence was that when he bought the tickets and confirmed the date the appellants would be coming to the UK, her answer was awkward, unwelcome and she told him that she could not go with him to welcome them at the airport. He explains the difficulties that were encountered establishing contact with Ms Opoku when the appellants arrived in the UK and the events leading to their respective interviews. He states that on 21 December 2021, Ms Opoku met the appellants for the last time. There is no reference in the statement to her having ever met the children previously. He claims that on 22 December 2021, Ms Opoku left London for Amsterdam to celebrate Christmas with her own children. It was hoped she would return after Christmas but it appears she did not do so. Mr Duah confirms that he is no longer in a relationship with Opoku, albeit they remain married. He states he cannot trust her to give a truthful account of her actions.

The account set out in the statement of Mr Duah regarding the reservations Ms Opoku demonstrated about the appellants coming to the UK, is consistent with the claim made by Ms Opoku when she was interviewed, that she does not support the applications. Even if she supported the applications for entry clearance when they were first made, it is clear she did not support the applications by the time of the appellants arrival in the UK. I find that by the date of the appellants arrival in the UK, 2December 2021, the appellants application was no longer supported by Ms Opoku and on the evidence before me, I find that the appellants were not joining her in the UK. By 29 December 2021, on the evidence before me, I find that the appellants could not and cannot satisfy the eligibility requirement in paragraph FP6.(1)(d) that they were joining Ms Opoku in the UK.

I find that since the entry clearance was granted to the appellants, there has clearly been a change in the appellants’ circumstances that is, or would have been relevant to the appellants’ eligibility for that entry clearance such that by 29 December 2021, it was open to the Immigration Officer to conclude that it is proportionate to cancel that leave. As to proportionality, the appellants had for a number of years lived in Ghana and were cared for by their mother. There is no evidence that they were not adequately cared for. When the appellants spoke to the Immigration Officer on 2 December 2021, the appellants confirmed they lived with their biological mother in Ghana and that the whole family had dropped them off at the airport. Their mother was pleased to see them go, because she thought they would have a better life in the UK. They said they have no other family here in the UK. In his witness statement, Mr Duah states they hope to remain in the UK to have a family life which they have been missing for many years and to have a good quality education. I have no doubt that the appellants would wish to live in the UK with their father, but that does not equate to a right to do so. The benefit they gain of living with their father is to the detriment of the stability they enjoyed in Ghana, and the relationships and attachments they have to their mother and wider family in Ghana. The appellant’s may wish to benefit from an education in the UK, but again, that does not equate to a right to be educated in the UK, in circumstances where they are unable to meet the rules, and in particular the eligibility requirements as set out in Appendix EU (Family Permit).

It follows that I remake the decision and dismiss the appeal.

The decision of First-tier Tribunal Judge Phull is set aside

I remake the decision and dismiss the appeal.