THE IMMIGRATION ACTS. Heard at Field House Decision & Reasons Promulgated On 17 February 2015 On 18 February Before

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1 IAC-FH-CK-V1 Upper Tribunal (Immigration and Asylum Chamber) Appeal Number: IA/41588/2013 THE IMMIGRATION ACTS Heard at Field House Decision & Reasons Promulgated On 17 February 2015 On 18 February 2015 Before DEPUTY UPPER TRIBUNAL JUDGE I A LEWIS Between SECRETARY OF STATE FOR THE HOME DEPARTMENT and Appellant AICHA BOULGOUIZ (ANONYMITY ORDER NOT MADE) Respondent Representation: For the Appellant: Mr N Bramble, Home Office Presenting Officer For the Respondent: Mr D Bazini of Counsel instructed by David Tang & Co DECISION AND REASONS 1. This is an appeal against the decision of First-tier Tribunal Judge Bart- Stewart promulgated on 14 October 2014 allowing the appeal of Ms Aicha Boulgouiz against a decision of the Secretary of State for the Home Department dated 25 September 2013 to refuse to issue a derivative residence card under the Immigration (European Economic Area) Regulations 2006.

2 2. Although before me the Secretary of State is the appellant and Ms Boulgouiz is the respondent, for the sake of consistency with the proceedings before the First-tier Tribunal I shall hereafter refer to Ms Boulgouiz as the Appellant and the Secretary of State as the Respondent. Decision and Background 3. The Appellant is a national of Morocco, born on 22 November Her immigration history, the basis of the current application and the basis of the Respondent s refusal are summarised at paragraph 3 of the First-tier Tribunal Judge s decision in the following terms: The appellant entered the United Kingdom on 16 August 2000 with entry clearance until 8 February On 12 January 2012 she applied for a derivative residence card on the basis that she is a third country national upon whom a British citizen is dependent in the United Kingdom following the judgment of the Court of Justice of the European Union in the case of Ruiz Zambrano (C-34/09). The application was rejected on 12 February 2012 and on 18 June 2013 the appellant made a fresh application. That claim is on the basis that she is the primary carer of her two children who are British citizens. However the application was refused as the children s father is a British citizen and therefore an exempt person. Further, the evidence submitted appears to show that they live at the same address and he has normal and regular parental contact with both children. The appellant had failed to show why the children s father would not be in a position to care for them if she was forced to leave the United Kingdom and there was insufficient evidence to show that they would be unable to remain in the United Kingdom/EEA if she was forced to leave. On the application form in answer to the question whether there is another person in the UK who would or does assume care and responsibility for the children she answered in the affirmative giving the name of the children s father. Whilst he is in employment this does not negate his responsibilities for the children. She has submitted a school letter and GP s letter none of which stated the appellant to be the primary carer. It was decided to refuse to issue a derivative residence card with reference to Regulation 15A(4A)(a) and (c), 15A(7) and 18A of the Immigration Act (European Economic Area) Regulations 2006 (as amended). 4. Paragraph 4 of the First-tier Tribunal decision refers to the human rights dimension: The respondent made reference to Article 8 of the European Convention on Human Rights and Appendix FM and paragraph 276ADE of the Immigration Rules and advised the appellant that if she wished she could make an application on the appropriate specified application form under the parent or partner route. There is also reference to Section 55 of the Borders, Citizenship and Immigration Act 2009 and the Secretary of State s duty to safeguard and promote the welfare of children in the UK. It is not entirely clear the Secretary of State s conclusion with regards to Section The Appellant appealed to the IAC. The First-tier Tribunal Judge dismissed the Appellant s appeal under the EEA Regulations for reasons set out in his

3 determination. The Judge, however, allowed the appeal on human rights grounds with reference to Article The Respondent sought permission to appeal which was granted by Designated First-tier Tribunal Judge Garratt on 22 December The essential reasons for granting permission to appeal are set out at paragraph 3 of Judge Garratt s decision in these terms: The grounds are arguable. Although the determination gives brief consideration to Article 8 issues from paragraphs 18 and 19 it was incumbent upon the judge to have regard to the public interest as defined in Section 117 of the 2002 Act but failed to do so. On this basis the determination is arguably flawed. 7. For completeness I note that the Appellant also sought permission to appeal against the decision under the EEA Regulations, but permission was refused by Judge Garratt on the same date that he dealt with the Respondent s successful application for permission to appeal. Consideration 8. The Appellant s appeal under the Regulations failed both because (i) The Judge found that the Appellant was not a primary carer: see paragraphs 12 and 13 of the determination and regulation 15A(7) as it informs regulation 15A(4)(a); and (ii) The Judge found that refusing the application for a derivative residence card would not mean the British citizen children would be unable to remain in the United Kingdom : see paragraph 17 of the Firsttier Tribunal s decision with reference to Regulation 15A(4)(b). 9. As noted above the First-tier Tribunal Judge made reference to the Respondent s observations on Article 8 at paragraph 4 of the determination. These observations were echoed at paragraph 16, although curiously at that point during the consideration of the case under the Regulations. The Judge said this: The respondent refers to the children staying in the UK whilst the appellant returns to Morocco and makes an application. However, the appellant does have the option of making an application on the basis of her family or private life under Article 8 and/or Appendix FM and paragraph 276ADE of the Immigration Rules, an application that she can make incountry. 10. It is not apparent why that passage appears in the context of the Judge s consideration of the EEA Regulations. 11. Be that as it may, and in any event, notwithstanding the Respondent s position in the refusal letter as identified at paragraph 4 of the First-tier Tribunal s decision (quoted above), the Respondent has taken no point before the Upper Tribunal on the jurisdiction to consider Article 8 in the

4 absence of a formal application prior to the decision which is the subject of the appeal, and in the absence of a removal decision. 12. The First-tier Tribunal Judge engages with Article 8 at paragraphs 18 and 19 of his decision. Paragraph 18 does little more than identify that the key question is proportionality. Paragraph 19 is the determinative paragraph in the appeal and is in these terms: The husband and children are all British nationals and none can be required to leave the United Kingdom. If the appellant were required to leave then the two young children would be separated from their mother or their father. In light of their father s medical condition I consider it would be difficult for the family to readjust and live in Morocco. I find that requiring the appellant to leave the United Kingdom would be an unreasonable response and cause the United Kingdom to be in breach of its obligations under Article 8 of the ECHR. 13. In all of the circumstances, in my judgment, that passage is inconsistent and inadequate as a disposal of the appeal under Article 8. It is inconsistent in that the Judge otherwise is dismissive of the evidence relating to the children s father s medical condition. Certainly there is no finding in respect of the medical condition made by the First-tier Tribunal Judge relevant to, or supportive of a conclusion that, it would be difficult for the family to readjust to live in Morocco. 14. Further, it seems to me that that passage is inadequate in that it does not take the Immigration Rules as a starting point; there is no exploration or contextualisation of the Appellant s immigration history as a relevant balancing factor; and there is no proper identification of the relevant public interest whether by reference to section 117B or otherwise. 15. In all of the circumstances I find that the decision of the First-tier Tribunal Judge was flawed by reason of material error of law, and I set it aside insofar as it relates to Article The decision in the appeal accordingly needs to be remade in respect of Article 8. Re-making the decision 17. Both parties are content for the decision to be remade by the Upper Tribunal today. Indeed Mr Bramble helpfully and realistically in light of further evidence now filed that post-dates the First-tier Tribunal hearing and decision accepts that the Appellant s case is compelling, and he does not seek to resist the appeal. 18. In those circumstances I do not propose to rehearse the relevant jurisprudence which informs the framework of the appeal and my considerations (and which includes the public interest requirements set out at section 117B of the 2002 Act to which I have had regard as indeed presumably has Mr Bramble on behalf of the Respondent in indicating the

5 position today). Nor is it necessary to descend into too much detail concerning all of the new evidence. It is set out from pages 113 of the Appellant s bundle filed and served in the Upper Tribunal under cover of a letter dated 13 February Of that evidence what is particularly compelling is the report by way of a letter dated 2 February 2015 (dictated on 30 January 2015) by Dr Alex Everitt, a consultant neurologist. He says the following in respect of the Appellant s partner, Mr Mohamed Alqattan, who is the father of the Appellant s children: This man has idiopathic generalised epilepsy and attends my Epilepsy Clinic at St Mary s Hospital. This causes him to have sudden generalised tonic-clonic ( grand mal ) seizures without warning and with serious risk of injury. His seizures have been resistant to treatment with a high dose of a single anti-epileptic drug (levetiracetam) so, 2 months ago, I decided to add a second drug called sodium valproate (Epilim Chrono) in the hope that this will improve his seizure control. At his last review appointment one month ago, Mr Alqattan was experiencing 3 tonic-clonic seizures every week despite taking his medication regularly. He also experiences smaller seizures known as myoclonic jerks which cause his arms or legs to suddenly jerk, without associated loss of consciousness. His poorly controlled epilepsy has led to him losing his job and becoming very depressed. I have referred him to our Liaison Psychiatry Team for their input. Mr Alqattan should not be left alone because of the risk from seizures per se, as well as the risk of injury resulting from seizures. He has young children and he would be incapable of looking after them in the aftermath of a seizure. I believe it is important that Mr Alqattan remains in the UK since it is highly unlikely that he would receive an appropriate level of care regarding epilepsy management in his country of origin. 20. It is to be recalled in this context that both Mr Alqattan and the couple s children are British citizens. The two children have dates of birth of 23 October 2008 and 13 July There is no real challenge to the notion that in general terms the Secretary of State would not expect British citizen children to leave the United Kingdom in the context of an EEA application - and this is a case that has its roots in such an application. 21. It is equally clear that the First-tier Tribunal Judge s determinative consideration was informed to a significant extent by the approach taken to the then available medical evidence including a conclusion that notwithstanding there being an element of risk it appeared to be manageable so far as the father s ability to look after the children in the absence of the mother. The new medical evidence put a very different complexion on that situation.

6 22. In all of the circumstances I accept the concession made by Mr Bramble as properly made. It would indeed be disproportionate for the Appellant to be removed from the United Kingdom with the impact that that would have on the lives of her partner and her children. 23. The issue of the derivative residence card is not before me in light of the failure of the application for permission to appeal, and accordingly the First-tier Tribunal Judge s ruling in that regard stands. Insofar as the Appellant may wish to challenge findings of fact and/or rely on updated material in this regard, it is always open to her to reapply to the Secretary of State for such a card if it is considered to be in some way more advantageous than the leave that will follow in light of the favourable conclusion that I make today in respect of Article 8. That, however, is a matter for the Appellant and her advisers and I make no comments as to merit. Notice of Decision 24. The decision of the First-tier Tribunal Judge contained a material error of law and is set aside in respect of human rights grounds. 25. I remake the decision in the appeal. The appeal of Ms Boulgouiz is allowed on human rights grounds pursuant to Article 8 of the ECHR. 26. No anonymity direction is sought or made. The above represents a corrected transcript of an ex-tempore decision given at the hearing on 17 February Signed Date: 17 February 2015 Deputy Upper Tribunal Judge I A Lewis