ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SALES
|The Secretary of State for the Home Department
|- and -
|(1) VM (Jamaica)
|The Secretary of State for the Home Department
Rory Dunlop (instructed by Government Legal Department) for the Apellant/Cross-Respondent
Hearing date: 16 March 2017
Crown Copyright ©
Lord Justice Sales:
"If the decision taken by the Immigration Judges below were improper, the proper course of action was to raise a jurisdictional matter by way of a judicial review action by the Secretary of State, and in the timeliest manner, rather than being raised before this Upper Tribunal, which is not exercising a judicial review function for present purposes. Accordingly, this Tribunal must hear the appeal on the part of [VM]."
"16. First, a series of cases after Sanade [Sanade v Secretary of State for the Home Department  UKUT 48 (IAC)] has confirmed that a carer cannot be removed back to his country where there are British citizen children who are going to suffer to such an extent that the British citizen child or children would also have to leave. This would not be logically possible. It is not logically possible here because the judge accepted that 'it would be unduly harsh, having regard to the independent psychiatric report and social worker evidence and in particular the children's mental health and behavioural issues which would worsen if separated from the Appellant' (paragraph 21). The children could not stay in the UK if the Appellant was deported. Their condition would worsen. This was accepted by the judge. They would have to accompany the Appellant back to Jamaica. That would infringe the rights of British citizen children and violate the fundamental precepts of EU law.
17. Second, in this particular case, a concession was made by the Respondent Secretary of State that it would not be reasonable to expect any of the children here to leave the United Kingdom. It was also conceded that there is in existence genuine and subsisting relationships with each child that the Appellant himself enjoyed. Judge Pooler had [in the 2014 FTT decision] concluded that it would not be in the best interests of the children were they not to be in the care of both parents in the United Kingdom (see paragraph 30)."
"If the person seeking permission to appeal provides the application to the Upper Tribunal later than the time required [by the relevant rules] or by an extension of time under rule 5(3)(a) (power to extend time) –
(a) The application must include a request for an extension of time and the reason why the application notice was not provided in time; and
(b) Unless the Upper Tribunal extends time for the application under rule 5(3)(a) (power to extend time) the Upper Tribunal must refuse the application."
VM's procedural objection to the Secretary of State's appeal
"In particular, and without restricting the general powers in paragraphs (1) and (2), the Upper Tribunal may –
(a) extend or shorten the time for complying with any rule, practice direction or direction …"
"(1) An irregularity resulting from a failure to comply with any requirement in these Rules, a practice direction or a direction, does not of itself render void the proceedings or any step taken in the proceedings.
(2) If a party has failed to comply with a requirement in these Rules, a practice direction or a direction, the Upper Tribunal may take such action as it considers just, which may include –
(a) waiving the requirement …"
The jurisdiction of the FTT for the 2015 FTT decision and the UT for the UT appeal decision
"A person ('P') may appeal to the Tribunal where –
(a) the Secretary of State has decided to refuse a human rights claim made by P …"
"When a human rights or protection claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content: (i) had not already been considered; and (ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection. This paragraph does not apply to claims made overseas."
The Secretary of State's substantive appeal against the UT appeal decision
"(a) The person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK and
(i) The child is a British Citizen; or
(ii) The child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case
(a) It would be unduly harsh for the child to live in the country to which the person is to be deported; and
(b) It would be unduly harsh for the child to remain in the UK without the person who is to be deported. …"
"63 As nationals of a Member State, family members of the applicants in the main proceedings enjoy the status of Union citizens under art.20(1) TFEU and may therefore rely on the rights pertaining to that status, including against their Member State of origin (see McCarthy  3 CMLR 10 at ).
64 On this basis, the Court has held that art.20 TFEU precludes national measures which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of that status (see Ruiz Zambrano  2 CMLR 46 at ).
65 Indeed, in the case leading to that judgment, the question arose as to whether a refusal to grant a right of residence to a third country national with dependent minor children in the Member State where those children are nationals and reside and a refusal to grant such a person a work permit have such an effect. The Court considered in particular that such a refusal would lead to a situation where those children, who are citizens of the Union, would have to leave the territory of the Union in order to accompany their parents. In those circumstances, those citizens of the Union would, in fact, be unable to exercise the substance of the rights conferred on them by virtue of their status as citizens of the Union (see Ruiz Zambrano  2 CMLR 46 at  and ).
66 It follows that the criterion relating to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of EU citizen status refers to situations in which the Union citizen has, in fact, to leave not only the territory of the Member State of which he is a national but also the territory of the Union as a whole.
67 That criterion is specific in character inasmuch as it relates to situations in which, although subordinate legislation on the right of residence of third country nationals is not applicable, a right of residence may not, exceptionally, be refused to a third country national, who is a family member of a Member State national, as the effectiveness of Union citizenship enjoyed by that national would otherwise be undermined.
68 Consequently, the mere fact that it might appear desirable to a national of a Member State, for economic reasons or in order to keep his family together in the territory of the Union, for the members of his family who do not have the nationality of a Member State to be able to reside with him in the territory of the Union, is not sufficient in itself to support the view that the Union citizen will be forced to leave Union territory if such a right is not granted."
VM's judicial review appeal
Lady Justice Arden: