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OUTER HOUSE, COURT OF SESSION
[2021] CSOH 80
P1094/20
OPINION OF LORD MALCOLM
In the petition of
OA
Petitioner
against
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Petitioner: Caskie; Drummond Miller LLP
10 August 2021
Introduction
[1]
The petitioner, a Dutch national currently residing in the UK, seeks the judicial
review of a decision of the First-tier Tribunal (Immigration Chamber) (FtT) dated
8 December 2020. In particular, he craves reduction of the determination that there is no
right of appeal against a decision of the Secretary of State for the Home Department dated
3 August 2020. The petition is brought on behalf of his wife's adopted son, who is a minor.
At an early stage permission to proceed with the petition was granted by the court.
Somewhat unusually, no appearance has been entered on behalf of the Secretary of State in
the proceedings.
2
Factual background and refusal of family permit
[2]
In April 2019 the petitioner's wife, who is Ugandan, adopted a child who is also a
citizen of that country. At that time, and also when these proceedings were raised, she and
her adopted son lived in Uganda. The child was born in September 2018. His natural
mother died when he was two days old. The petitioner and his wife also have two
biological children.
[3]
In November 2019 the petitioner's wife, along with the three children, made
applications under the EU Settlement Scheme (EUSS) for family permits to allow them to
travel to the UK to join the petitioner. This was on the basis that they are family members of
a relevant EEA citizen who is exercising treaty rights in the UK. While there was no specific
mention of a human rights claim or human rights issues arising within the applications,
under the heading "Extra Information" the adopted child's application stated:
"I have been adopted by my sponsor and mother, my biological father is unknown
and my biological mother is deceased, my sponsor and mother have adopted me,
and I cannot be separated from my family."
[4]
Permits relative to the wife and her two biological children were granted. She has
now been granted leave to remain in the UK for a period of 5 years, and her two other
children have been granted indefinite leave to remain here. The application by the adopted
child was refused. His adoptive mother and siblings having now moved to the UK to be
with the petitioner; he is being cared for in Uganda by a family friend.
[5]
The basis of the refusal was that the evidence provided did not demonstrate that the
child was adopted in accordance with the requirements of Annex 1 of Appendix EU (Family
Permit). The child must be adopted in accordance with a decision taken:
(a)
by the competent administrative authority or court in the UK or the Islands;
or
3
(b)
by the competent administrative authority or court in a country whose
adoption orders are recognised by the UK or the Islands; or
(c)
in a particular case in which that decision in another country has been
recognised in the UK or the Islands.
Because the adoption of the child was not issued by a competent administrative authority or
court in the UK or the Islands, and since Uganda is not a country listed within the Adoption
(Recognition of Overseas Adoptions) Order 2013, the Entry Clearance Officer (ECO), acting
on behalf of the Secretary of State, reached the view that the requirements were not met.
The competent administrative authority or court in Uganda is not an administrative
authority or court whose adoption orders are recognised within the UK or Islands, and the
order provided has not been recognised under domestic immigration rules in the UK or
Islands.
Appeal to the FtT
[6]
The adopted child appealed to the FtT. It was submitted that the decision to refuse
the permit constituted a refusal of a human rights claim and that it was disproportionate. It
was accepted that the Ugandan adoption was not recognised in terms of the 2013 order.
However, the child's adoptive mother and siblings (with whom he had resided for almost all
his life) had been granted family permits. The decision in MY (refusal of human rights claim)
decision related to a human rights claim and accordingly, whether there was a right of
appeal in terms of section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002.
[7]
In MY the Upper Tribunal identified three categories of cases: first, those which are
clearly human rights claims and in respect of which a right of appeal automatically arises;
4
second, applications to enter or remain in the United Kingdom which are not human rights
claims, for example, an application for an extension as a student; and third, cases in which
an application might be made in terms of the Immigration Rules, EU law or Appendix EU,
but which inevitably on their facts give rise to an article 8 claim. Reference was made to an
example of such a case in paragraph 74 of MY.
[8]
It was submitted to the FtT that, in line with the decision in MY, the conclusion
reached by the ECO was not determinative of whether there was a human rights claim. The
ECO required to consider whether the granting of the permits relative to the child's three
family members and the refusal of his application would give rise to a breach of the article 8
rights of any or all of the four applicants. Similarly the FtT required to engage with the
consequences of refusing the application of one member of a family unit in terms of article 8.
The decision of the FtT
[9]
The FtT addressed one question, namely was there a right to appeal again st the
decision of 3 August 2020? It answered in the negative. In a succinct judgement the FtT
stated that under the EUSS anyone who makes a valid application for a family permit
after 11pm on 31 January 2020 has a right of appeal against a refusal. Here the application
was made prior to 31 January 2020 and therefore the appellant had no right of appeal. The
ECO's decision did not constitute a refusal of a human rights claim. The reasoning was as
follows. First, the application was not made on human rights grounds. Secondly, there was
nothing in the decision to suggest that human rights were considered.
"Thirdly, it is interesting to note that the appellant does not engage with the
respondent's decision and appears to be oblivious to the fact that there is no right of
appeal."
5
Submissions to this court for the petitioner
[10]
The petitioner accepts the FtT's view that there was no express statutory right to
appeal given that the application under the EUSS was submitted prior to 31 December 2020.
It was said that this situation arose as a result of the UK's departure from the E U. However
the jurisdiction of the FtT includes a right to hear an appeal against a decision that would
give rise to a breach of section 6 of the Human Rights Act 1998, see sections 82(1)(b)
and 84(2) of the 2002 Act, and therefore there is a right of appeal against a decision that
would give rise to a breach of article 8 of ECHR.
[11]
Two separate approaches to such cases have been held to be correct in respect of how
the FtT derives such a jurisdiction. One approach is to consider whether the outcome of the
application made (regardless of the terms in which it was submitted) would give rise to a
breach of article 8 (Balajigari and Others v Secretary of State for the Home Department
[2019] EWCA Civ 673). It is submitted that the child's rights under article 8 ECHR were engaged
by the decision of 3 August 2020, and that this is in line with paragraph 88 of Balajigari in
which it was stated:
"It cannot be the case that a migrant's article 8 rights are not engaged until the
moment of the knock on the door: what matters is the point of the legal decision".
It follows that the child had a right of appeal to the FtT, and it erred in concluding
otherwise.
[12]
Another approach is to consider whether the application and other materials
submitted by the applicant constitute a human rights claim. If this approach is adopted the
various categories of claim identified in the analysis carried out in MY require to be
addressed. The petitioner's position is that this matter falls into the third category.
6
[13]
Separately, it is contended that the FtT did not engage with the relevant facts and the
submissions made to it. In any event, it failed to provide adequate reasons. It follows that
the decision is unlawful.
Decision
[14]
Notwithstanding the decision not to resist this petition, it would have been of
assistance if the Secretary of State had entered appearance and lodged answers. The case
has unusual features, and while of obvious significance for the child and wider family
members concerned, it has the potential to be of more general importance. Although it was
not challenged by the petitioner, the court is troubled by the FtT's view that rights of appeal
in cases of this kind were created for the first time in respect of applications made after
31 January 2020. It would have been helpful to have the Secretary of State's submissions on
this, and also on the impact of MY and other decisions in circumstances such as this.
[15]
The application was for entry clearance via a European Family Permit under the
EUSS on the basis that the child is a family member of a relevant EEA citizen. At the time it
was governed by Annex 1 to Appendix EU (Family Permit) of the Immigration Rules. The
decision of the ECO was that the eligibility requirements were not met. Since 2013 Ugandan
adoption orders have not been recognised in the UK, thus the child is not a family member
in terms of FP.6(2)(b) of the Appendix. The Appendix is silent with regard to rights of
appeal.
[16]
The child appealed to the FtT by lodging a Form IAFT-6 (appeal from out of
country). It expressly allowed for appeals against the following types of determinations;
human rights decisions; EEA decisions; decisions under the EUSS, and those regarding
EEA family permit and EUSS travel permit applications. Those acting for the child ticked
7
only the box marked "human rights". The range of options said to be available to the child
are difficult to reconcile with the view that rights of appeal in cases of this kind sprang into
existence for the first time for refusals of applications which were lodged after EU exit day,
namely 31 January 2020, all in terms of regulation 3 of the Immigration (Citizens' Rights
Appeals) (EU Exit) 2020 (SI 2020/61). While this provides for such appeals in respect of
applications made after that date, counsel for the petitioner was informed that it was not
obvious to the court that this meant that no similar appeal rights existed for applications
made before that date. No rationale for such a state of affairs was offered, or at least none
that was grasped by the court. Given that this was not the focus of the challenge to the FtT's
decision, no more will be said about it, other than to draw attention to regulation 82 and
schedule 3 paragraph 5 of the Immigration and Social Security Co-ordination (EU
Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory provisions) (EU
Exit) Regulations (SI 2020/1309); see also MacDonald's Immigration Law and Practice 10
th
ed.
At 18.19 and 19.6.
[17]
As for the proposition that the FtT's decision is unlawful because it failed to engage
with the grounds for the appeal as presented to it, or, if it did, it did not provide adequate
reasoning for their rejection, I have no difficulty in upholding this complaint. It follows that
the decision will be quashed and the matter remitted to a differently constituted tribunal.
[18]
Quashing the decision is the most that the court can do in respect of this petition. In
these circumstances I intend to say little in respect of the merits of the submissions based on
the case law mentioned above, partly because there has been no contradictor, or at least no
input from the Secretary of State. And for the reason just mentioned, the court does not
have the benefit of a reasoned decision from the specialist tribunal. There does however
8
seem to be sufficient arguable merit in them to justify their careful consideration, not least
given the serious consequences for this child and his wider family members.
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