(Immigration and Asylum Chamber) Appeal Number: HU/01818/2018
THE IMMIGRATION ACTS
Heard at Field House
Decision & Reasons Promulgated
On 20 May 2019
On 22 May 2019
UPPER TRIBUNAL JUDGE FINCH
(ANONYMITY DIRECTION MADE)
SECRETARY OF STATE FOR THE HOME DEPARTMENT
For the Appellant: Appeared in person but was assisted at court by Mr. P. Nathan of counsel on a pro bono basis
For the Respondent: Mr. N. Bramble, Home Office Presenting Officer
DECISION AND REASONS
BACKGROUND TO THE APPEAL
1. The Appellant is a national of Cameroon. She entered the United Kingdom, as a visitor, on 28 March 2012 and remained here after her visa expired on 3 May 2012. Her son was born here on 20 August 2013.
2. On 18 August 2016 the Appellant applied for leave to remain on human rights grounds. Her application was refused on 11 December 2017. She appealed against this decision, but First-tier Tribunal Judge Robertson dismissed her appeal in a decision promulgated on 9 July 2018. The Appellant appealed and on 20 August 2018 First-tier Tribunal Judge Simpson granted her permission to appeal.
ERROR OF LAW HEARING
3. At the start of the hearing, Mr. P. Nathan of counsel, who was present in court in another case, informed me that he was willing to assist her on a pro bono basis. I put the Appellant's case back in the list to enable him to take instructions. Both the Home Office Presenting Officer and counsel for the Appellant made oral submissions in relation to the substance of the appeal.
ERROR OF LAW DECISION
4. First-tier Tribunal Judge Robertson did not grant the Appellant permission to appeal in relation to the assertion that it would be a breach of Article 3 of the European Convention on Human Rights. Instead she stated:
"there did appear that there was an arguable basis that the Decision disclosed a falling into error in the treatment of the appellant's EU claims when assessing Article 8 human rights, with reference to her claims of derivative rights of residence concerning her son, who she claimed to be a Polish national as the son of a Polish national, having been conceived in the UK as the result of rape by that Polish national father".
5. Regulation 16 of the Immigration (European Economic Area) Regulations 2016 states:
"(1) A person has a derivative right to reside during any period in which the person-
(a) is not an exempt person, and
(b) satisfies each of the criteria in one or more of paragraphs (2) to (6)
(3) The criteria in this paragraph are that-
(a) any of the person's parents ("PP") is an EEA national who resides or has resided in the United Kingdom;
(b) both the person and PP reside or have resided in the United Kingdom at the same time, and during such a period of residence, PP has been a worker in the United Kingdom; and
(c) the person is in education in the United Kingdom.
(4) The criteria in this paragraph are that-
(a) the person is the primary carer of a person satisfying the criteria in paragraph (3) ("PPP"); and
(b) PPP would be unable to continue to be educated in the United Kingdom is the person left the United Kingdom for an indefinite period.
(7) In this regulation-
(a) "education" excludes nursery education...
(b) "worker" does not include a jobseeker or a person treated as a worker under regulation 6(2)
(8) A person is the "primary carer" of another person ("AP") if _
(a) the person is a direct relative of legal guardian of AP; and
(i) the person has primary responsibility for AP's care
6. In paragraph 33 of her decision, First-tier Tribunal Judge Robertson stated:
"As to the evidence that L is a national of Poland, I note that the only evidence I have is a copy of a passport stated to be that of the father of the Appellant's child. There is nothing before me to confirm that the Respondent has ever had sight of the original of the passport and, of course, copies are unreliable as it is not possible to see if changes have been made before or during the copying process. I have a copy of the birth certificate of the Appellant's child and, within it, it is not stated that the father of the child is a Polish national".
7. However, the record of proceedings indicates that, at the start of the First-tier Tribunal hearing, the Home Office Presenting Officer accepted that the Appellant's son was a polish national. There was no also suggestion that the Respondent had submitted that the copy of the child's father's passport had been tampered in any way or that his father was not a Polish national.
8. In addition, the Appellant's son's birth certificate confirms that his father is N D F and I also note that Mr. F's passport was issued on 13 July 2012 which was prior to the Appellant's son's birth. This is significant as section 14 of the Polish Citizenship Act 2009 states "The child shall acquire Polish citizenship at birth when: 1) at least one of the parents has Polish citizenship". Therefore, if his father is a Polish national, the Appellant's son would have acquired Polish citizenship merely on account of his birth.
9. In paragraph 35 of her decision First-tier Tribunal Judge Robertson noted that the Polish Embassy had required her to obtain a court order authorising her to apply for her son's passport without his father's consent. I have taken into account the fact that the provision of a passport provides evidence of citizenship. It does not confer citizenship on an individual. As a consequence, First-tier Tribunal Judge Robertson approach in paragraph 36 was not correct. In that paragraph, she found: "the evidence before me does not establish that it is a given that Polish nationality will be granted to the Appellant's child, and no expert evidence was adduced to establish what processes must be followed and when, in the absence of the father, in order to establish that that L is a citizen of Poland".
10. Furthermore, in paragraph 36 of her decision, First-tier Tribunal Judge Robertson stated that the Appellant "also provided what appears to be a further order which has the substantive provisions redacted but which purports to confirm that "Permission is granted to the mother to issue a Polish passport for the child without the consent of the Father"". However, she erred in taking this document into account and finding that it was a document which had "difficulties", which tended to suggest that the Appellant's credibility had been damaged by its submission. This was not a copy of an order issued in the proceedings being brought by the mother in the Family Court in Coventry. It was merely a sample order provided by the Polish Embassy to the Coventry Refugee and Migrant Centre in order to assist the Appellant to seek permission from a Family Court for an order where a father was not giving his consent to a passport being issued.
11. In addition, in paragraph 25 of her decision First-tier Tribunal Judge Robertson noted:
"The Appellant states that according to the Polish Citizenship Act, her son is Polish and he is exercising Treaty rights as he is in education. She quotes case law in her witness statement as to his rights of residence on the basis that he is in education, and her rights as his primary carer".
12. However, she failed to go on to reach any findings about whether the Appellant had a derivative right of residence and, if so, how this impacted on her consideration of proportionality in the context of Article 8 of the European Convention on Human Rights.
13. For all of these reasons, I find that First-tier Tribunal Judge Robertson did make errors of law in her decision.
(1) The Appellant's appeal is allowed.
(2) The decision of First-tier Tribunal Judge Robertson is set aside.
(3) The appeal is remitted to the First-tier Tribunal for a de novo hearing before a First-tier Tribunal Judge other than First-tier Tribunal Judges Robertson or Simpson.
Signed Date 20 May 2019
Upper Tribunal Judge Finch