PK (EEA regs: Jia) Sri Lanka  UKAIT 00043
ASYLUM AND IMMIGRATION TRIBUNAL
Date of hearing: 15 January 2008
Date Determination notified: 21 February 2008
Senior Immigration Judge Drabu
|Secretary of State for the Home Department||RESPONDENT|
DETERMINATION AND REASONS
There is nothing in Jia v Migrationswerket to cast doubt on the legality of reg 8(2) of the Immigration (EEA) Regulations 2006.
"Part C – the grounds which the court will consider are those that you submitted to the AIT in your application for reconsideration (Form AIT/103 A).
If you wish to respond to the reasons given by the Tribunal for it's [sic] decision that it does not propose to make an order for reconsideration you should set out in this part the grounds upon which you dispute any of the reasons given by the Tribunal and give reasons in support of those grounds."
The appellant's representative's response to that invitation is in our view rather remarkable. The new submission is approximately twice the length of the original grounds. It refers in almost every paragraph to Jia, which did not feature in the original grounds. It refers to an argument that the decision of the European Court of Justice in Jia overrode reg 8(2) of the EEA Regulations, another matter not mentioned in the original grounds. It refers to what is alleged to be a definition of "lawful residence" to be found in the Immigration Rules, also not mentioned in the original grounds. Horvath is not cited, nor is Huang, nor is LS, but it is said that the Immigration Judge erred in failing to find that RG was inconsistent with Jia. There is a reference to a case called Chiver, which is cited as an authority on the assessment of credibility. It does not appear that these extensive complaints were accompanied by any application to amend the grounds as originally submitted. We have the gravest of doubts whether the High Court had jurisdiction to consider them in the context of CPR 54.31(5), which allows an applicant merely to argue that the Tribunal's response to the grounds as originally submitted was wrong.
"The Immigration Judge's decision of 15 of June 2007, contains the following error of law. First, it has now been decided in the case of Yunging Jia v Migrationsverket (Grand Chamber, European Court), a copy of the decision is enclosed with the relevant paragraph (33) highlighted, which clearly states that for the purpose of reg 8.2(a) and (c), it no longer is a requirement that the appellant and the sponsor must have resided in any state other than the United Kingdom. Based on this ground, residents in the sponsor's household and current support is only relevant. A copy of the tenancy agreement exemplifying their joint residence is adduced.
Since Jia established that the applicant needs not to have lived in another EEA state where the sponsor resided, therefore overriding reg 8(2)(a) of the 2006 regulations, but that only lawful residence of the UK has to be satisfied, the IJ has failed in his reasoning of his determination and findings why he thinks the applicant is not a lawful resident and does not consequently fall within the ambit of Jia".
" It follows that the condition of previous lawful residence in another Member State, as formulated in the judgement in Akrich, cannot be transposed to the present case and thus cannot apply to such a situation.
 The answer to Question 1(a) to (d) must therefore be that, having regard to the judgement in Akrich, Community law does not require member States to make the grant of a residence permit to nationals of a non-Member State, who are members of a family of a Community national who has exercised his or her right of free movement, subject to the condition that those family members have previously been residing lawfully in another member state."
"The criteria for lawful residence is laid down at paragraph 276(A)(b) of the Immigration Rules and read as follows:-"
An extract from that paragraph of the Statement of Changes in Immigration Rules, HC395 is then set out and there are submissions based on it. What those submissions fail to indicate is that para 276A begins with the words "for the purposes of paragraphs 276B to 276D". Those paragraphs relate to applications made by persons who have lived in the United Kingdom lawfully for more than ten years or have been in the United Kingdom lawfully or unlawfully for more than fourteen years. The appellant has made no application for consideration under those paragraphs and indeed, given his own account of his arrival in 1998 it is difficult to see how he could have expected success had he done so. There is no suggestion that this definition in paragraph 276A of the Immigration Rules has any general applicability and it was quite wrong of the appellant's representatives, by selective citation, to suggest that it did, or that the definition had any general relevance to the present case. Made, as it was, in the context of an assertion that the Senior Immigration Judge erred in his decision, the suggestion that the Senior Immigration Judge should have misread the rule as the appellant's representatives had done is improper.
"The Senior Immigration Judge, McGeachy, instead of having recourse to the proper construction of paragraph 276 of the Immigration Rules and in line with the case of Jia, has only rubber stamped the decision of the previous Immigration Judge. Had he scrutinized the documentary evidence that were on file, he would have observed that credibility issues, if any, can only be made in light of the backdrop of the situation in the applicants home country at the present time. Reliance is placed here on Chiver (10758), where it was mentioned
"Credibility should be made with regard to the centre piece of Appellant's account". "
"It is perfectly possible for an adjudicator to believe that a witness is not telling the truth about matters, has exaggerated his story to make his case better, or is simply uncertain about matters, and still to be persuaded that the centre piece of the story stands".
The Tribunal did not decide that an adjudicator was obliged to believe a story if uncertainties, exaggerations, lack of memory or lies went only to details. What it did decide was that the existence of such difficulties is not in law a bar to an adjudicator (or, now, an Immigration Judge) believing other parts of what is said if, having taken everything into account, he decides it right to do so.
"It would be helpful to have a definitive decision of the Tribunal (if possible presided over by its President) clarifying the position of failed asylum seekers and the J.A Case. Similar cases should also be listed with this case."
"Extended family member"
8.—(1) In these Regulations 'extended family member' means a person who is not a family member of an EEA national under regulation 7(1)(a), (b) or (c) [which the appellant is not] and who satisfies the conditions in paragraph (2), (3), (4) or (5). [there is no suggestion that the appellant could qualify under paragraph (3), (4), or (5)].
(2) A person satisfies the condition in this paragraph if the person is a relative of an EEA national, his spouse or his civil partner and ---
(a) the person is residing in an EEA State in which the EEA national also resides and is dependent upon the EEA national or is a member of his household;
(b) the person satisfied the condition in paragraph (a) and is accompanying the EEA national to the United Kingdom or wishes to join him there; or
(c) the person satisfied the condition in paragraph (a), has joined the EEA national in the United Kingdom and continues to be dependent upon him or to be a member of his household.
'EEA State' is defined in reg 2 as meaning in essence a Member State of the European Economic Area other than the United Kingdom. Thus residence in the United Kingdom does not qualify under reg 8(2)(a). In RG this Tribunal attempted to provide interpretive guidance on a number of issues relating to reg 8(2). We have no reason to suppose the guidance there provided was wrong. The first point is that sub-paras (a), (b) and (c) are genuine alternatives. The second point is that the tenses are important. A person may therefore qualify by currently meeting the requirements of sub-para (a), or by having met them in the past and by currently meeting the requirements of either sub-para (b) or sub-para (c). As the definition of 'extended family member' is relevant both to those who intend to come to the United Kingdom and to those already here, a definition which includes current residence outside the United Kingdom is not inappropriate.
C M G OCKELTON