United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Numbers: UI-2021-001558

EA/10392/2021

 

 

THE IMMIGRATION ACTS

 

 

Heard at Field House	Decision & Reasons Promulgated
On 6 July 2022	On 7 September 2022

 

Before

 

UPPER TRIBUNAL JUDGE McWILLIAM

 

 

Between

 

Sardar Hassan Parveez

(ANONYMITY DIRECTION NOT MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

 

Representation :

For the Appellant: Mr A Alam, Counsel, instructed by Pearl Valley Solicitors

For the Respondent: Mrs S Nolan, Home Office Presenting Officer

 

 

DECISION AND REASONS

1.              The Appellant is a citizen of Pakistan. His date of birth is 18 September 1962.

2.              The Appellant was granted permission to appeal against the decision of the First-tier Tribunal (Judge Cruthers) to dismiss his appeal against the decision of the Secretary of State on 24 February 2021 to refuse his application (on 4 November 2020) to grant him a Family Permit under the EU Settlement Scheme (EUSS) to join his brother in the United Kingdom (a Belgian national with pre-settled status until 21 October 2025).

3.              The ECO refused the application because the Appellant did not provide sufficient evidence that he is a "family member" of a relevant EEA citizen and the relationship did not come within the definition of "family member of a relevant EEA citizen" under the EUSS for a family permit.

4.              It is agreed by the parties that the relationship between the Appellant and the Sponsor falls within the scope of the Immigration (European Economic Area) Regulations 2016 ("the EEA Regulations") (reg.8) but not the EUSS (Appendix EU Annex 1 definitions).

The decision of the First-tier Tribunal

5.              The thrust of the Appellant's argument before the First-tier Tribunal was that the SSHD should have made the decision under the EEA Regulations and/or the First-tier Tribunal should have decided the appeal under the EEA Regulations.

6.              The judge heard oral evidence from the Sponsor and submissions from both representatives. The judge stated at [20] that the Appellant's case was dependent on him having made an application in accordance with the EEA Regulations 2016. However, in the Appellant's skeleton argument it was conceded that the Appellant had applied under the EUSS which was operational at the time of the application. The judge did not accept that the Appellant made an application which fell to be determined under the EEA Regulations or that the appeal could be determined under the same because the Applicant made an application for a family permit under the EUSS. The judge rejected arguments concerning SZ (applicable Immigration Rules) Bangladesh [2007] UKAIT 0037.

Submissions

7.              On 11 April 2022 Mr Alam submitted written amended grounds of appeal. Mr Alam relied on his skeleton argument of 4 July 2022 and oral submissions. The thrust of the grounds is that the judge did not give adequate reasons for refusing to consider the appeal under the EEA Regulations. Mr Alam submitted before me that the Appellant's application was made under the EEA Regulations before 31 December 2020. He submitted that the application was valid (with reference to reg 21 of the EEA Regulations). He relied on Geci (EEA Regs: transitional provisions; appeal rights) [2021] 202 UKUT 285.

8.              It was argued that the First-tier Tribunal erred in its reliance on SZ. The Appellant relied on [8] and [16] of SZ. There is an obvious link between the provisions of the EUSS and the EEA Regulations. The application made by the Appellant made reference to dependency and therefore the basis of the application would have been apparent to a reasonable person. The Appellant selected the wrong option when making an on-line application; however, it was clear from the outset that the application was made on the basis that the applicant is a extended family member, a term referred to in reg 8 of the EEA Regulations. The SSHD has not acted in good faith by not considering the application under the EEA Regulations. In the case of SZ the grounds advanced before the UT had not been relied on before the First-tier Tribunal, however, the Appellant's case was advanced before the First-tier Tribunal on the basis that it is now being advanced.

9.              In the alternative, the Appellant relies on Articles 4,5,18 (o) and (r) of the Withdrawal Agreement (WA). This was not a matter raised before the First-tier Tribunal. However, Mr Alam was given permission to amend the grounds to include a challenge on this basis.

10.          Mrs Nolan on behalf of the SSHD did not rely on a skeleton argument. There was no response from the SSHD under Rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008. Ms Nolan's submissions can be summarised. The EUSS and EU law are not interlinked. The two routes are legally and conceptually distinct. This appeal falls at the first hurdle as there was no valid application under the EEA Regulations. The Appellant's relationship with his brother is not included under the EUSS. The Appellant cannot rely on appeal rights identified in Geci because there was no application under the EEA Regulations. In so far as SZ is concerned, the issue in this Appellant's case is not between which part of the Immigration Rules (IR) apply. There are two distinct regimes. The application was made under EUSS and the decision was made by the Respondent in good faith under the scheme. In so far as the WD is concerned, the Appellant does not come within the remit of the WA (Article 10).

The legal framework

11.          I will set out the applicable parts of the law relied on. It is not comprehensive. It is not necessary for me to set out aspects of the EUSS. The parties agree that the Appellant's appeal cannot succeed under the IR.

The Withdrawal Agreement

PART 2

TITLE 1

Article 10

Personal scope

1. Without prejudice to Title III, this Part shall apply to the following persons:

(a) Union citizens who exercised their right to reside in the United Kingdom in accordance with Union law before the end of the transition period and continue to reside there thereafter;

(b) United Kingdom nationals who exercised their right to reside in a Member State in accordance with Union law before the end of the transition period and continue to reside there thereafter;

(c) Union citizens who exercised their right as frontier workers in the United Kingdom in accordance with Union law before the end of the transition period and continue to do so thereafter;

(d) United Kingdom nationals who exercised their right as frontier workers in one or more Member States in accordance with Union law before the end of the transition period and continue to do so thereafter;

(e) family member of the persons referred to in points (a) and (d), provided they fulfil one of the following conditions:

(i) they resided in the host State in accordance with Union law before the end of the transition period and continue to reside there thereafter;

(ii) they were directly related to a person referred to in points (a) to (d) and resided outside the host State before the end of the transition period, provided that they fulfil the conditions set out in point (2) of Article 2 of Directive 2004/38/EC at the time they week residence under this Part in order to join the person referred to in points (a) to (d) of this paragraph;

(iii) they were born in, or legally adopted by, persons referred to in points (a) to (d) after the end of the transition period, whether inside or outside the host State, and fulfil the conditions set out in point (2)(c) of Article 2 of Directive 2004/38/EC at the time they seek residence under this Part in order to join the persons referred to in points (a) to (d) of this paragraph and fulfil one of the following conditions:

-           both parents are persons referred to in points (a) to (d);

 

-           one parent is a person referred to in points (a) to (d) and the other is a national of the host State; or

 

-           one parent is a person referred to in points (a) to (d) and has sole or joint rights of custody of the child, in accordance with the appliable rules of family law of a Member State or of the United Kingdom, including appliable rules of private international law under which rights of custody established under the law of a third State are recognised in the Member State or in the United Kingdom, in particular as regards the best interests of the child, and without prejudice to the normal operation of such applicable rules of private international law.

(f) family members who resided in the host State in accordance with Articles 12 and 13. Article 16(2) and Articles 17 and 18 of Directive 2004/38/EC before the end of the transition period and continue to reside there thereafter.

2. Persons falling under points (a) and (b) of Article 3(2) of Directive 2004/38/EC whose residence was facilitated by the host State in accordance with its national legislation before the end of the transition period in accordance with Article 2(2) of that Directive shall retain their right of residence in the host State in accordance with this Part, provided that they continue to reside in the host State thereafter.

3. Paragraph 2 shall also apply to persons falling under points (a) and (b) of Article 3(2) of Directive 2004/38/EC who have applied for facilitation of entry and residence before the end of the transition period, and whose residence is being facilitated by the host State in accordance with its national legislation thereafter.

4. Without prejudice to any right to residence which the persons concerned may have in their own right, the host State shall, in accordance with its national legislation and in accordance with point (b) of Article 3(2) of Directive 2004/38/EC, facilitate entry and residence for the partner with whom the person referred to in points (a) to (d) of paragraph 1 of this Article has a durable relationship, duly attested, where that partner resided outside the host State before the end of the transition period, provided that the relationship was durable before the end of the transition period and continues at the time the partner seeks residence under this Part.

5. In the cases referred to in paragraphs 3 and 4, the host State shall undertake an extensive examination of the personal circumstances of the persons concerned and shall justify any denial of entry or residence to such persons.

 

ARTICLE 18

 

Issuance of residence documents

 

(o) the competent authorities of the host State shall help the applicants to prove their eligibility and to avoid any errors or omissions in their applications; they shall give the applicants the opportunity to furnish supplementary evidence and to correct any deficiencies, errors or omissions;

 

...

 

(r) the applicant shall have access to judicial and, where appropriate, administrative redress procedures in the host State against any decision refusing to grant the residence status. The redress procedures shall allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed decision is based. Such redress procedures shall ensure that the decision is not disproportionate.

 

...

 

 

European Union Withdrawal Act 2018 ("the 2018 Act") 

2. Saving for EU-derived domestic legislation

(1) EU-derived domestic legislation, as it has effect in domestic law immediately before exit day, continues to have effect in domestic law on and after exit day.

(2) In this section "EU-derived domestic legislation" means any enactment so far as-”

(a) made under section 2(2) of, or paragraph 1A of Schedule 2 to, the European Communities Act 1972,

(b) passed or made, or operating, for a purpose mentioned in section 2(2)(a) or (b) of that Act,

(c) relating to anything-”

(i) which falls within paragraph (a) or (b), or

(ii) to which section 3(1) or 4(1) applies, or

(d) relating otherwise to the EU or the EEA,

but does not include any enactment contained in the European Communities Act 1972.

(3) This section is subject to section 5 and Schedule 1 (exceptions to savings and incorporation)."

"4. Saving for rights etc. under section 2(1) of the ECA

(1) Any rights, powers, liabilities, obligations, restrictions, remedies and procedures which, immediately before exit day-”

(a) are recognised and available in domestic law by virtue of section 2(1) of the European Communities Act 1972, and

(b) are enforced, allowed and followed accordingly,

continue on and after exit day to be recognised and available in domestic law (and to be enforced, allowed and followed accordingly).

(2) Subsection (1) does not apply to any rights, powers, liabilities, obligations, restrictions, remedies or procedures so far as they-”

(a) form part of domestic law by virtue of section 3, or

(b) arise under an EU directive (including as applied by the EEA agreement) and are not of a kind recognised by the European Court or any court or tribunal in the United Kingdom in a case decided before exit day (whether or not as an essential part of the decision in the case).

(3) This section is subject to section 5 and Schedule 1 (exceptions to savings and incorporation)."

The EEA Regulations 2016

'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) and who satisfies a condition in paragraph (2), (3), (4) or (5).

(2) The condition in this paragraph is that the person is-”

(a) a relative of an EEA national; and

(b) residing in a country other than the United Kingdom and is dependent upon the EEA national or is a member of the EEA national's household; and either-”

(i) is accompanying the EEA national to the United Kingdom or wants to join the EEA national in the United Kingdom; or

(ii) has joined the EEA national in the United Kingdom and continues to be dependent upon the EEA national, or to be a member of the EEA national's household.

(3) The condition in this paragraph is that the person is a relative of an EEA nationaland on serious health grounds, strictly requires the personal care of the EEA national.

(4) The condition in this paragraph is that the person is a relative of an EEA national and would meet the requirements in the immigration rules (other than those relating to entry clearance) for indefinite leave to enter or remain in the United Kingdom as a dependent relative of the EEA national.

(5) The condition in this paragraph is that the person is the partner (other than a civil partner) of, and in a durable relationship with, an EEA national, and is able to prove this to the decision maker.

 

(6) In these Regulations, "relevant EEA national" means, in relation to an extended family member-”

(a) referred to in paragraph (2), (3) or (4), the EEA national to whom the extended family member is related;

(b) referred to in paragraph (5), the EEA national who is the durable partner of the extended family member.

(7) In paragraphs (2) and (3), "relative of an EEA national" includes a relative of the spouse or civil partner of an EEA national where on the basis of being an extended family member a person-”

(a) has prior to the 1st February 2017 been issued with-”

(i) an EEA family permit;

(ii) a registration certificate; or

(iii) a residence card; and

(b) has since the most recent issue of a document satisfying sub-paragraph (a) been continuously resident in the United Kingdom."

Issue of EEA family permit

12.-” (1) An entry clearance officer must issue an EEA family permit to a person who applies for one if the person is a family member of an EEA national and-”

(a) the EEA national-”

(i) is residing in the United Kingdom in accordance with these Regulations; or

(ii) will be travelling to the United Kingdom within six months of the date of the application and will be an EEA national residing in the United Kingdom in accordance with these Regulations on arrival in the United Kingdom; and

(b) the family member will be accompanying the EEA national to the United Kingdom or joining the EEA national there.

(2) An entry clearance officer must issue an EEA family permit to a person who applies and provides evidence demonstrating that, at the time at which the person first intends to use the EEA family permit, the person-”

(a) would be entitled to be admitted to the United Kingdom because that person would meet the criteria in regulation 11(5); and

(b) will (save in the case of a person who would be entitled to be admitted to the United Kingdom because that person would meet the criteria for admission in regulation 11(5)(a)) be accompanying to, or joining in, the United Kingdom any person from whom the right to be admitted to the United Kingdom under the criteria in regulation 11(5) is derived.

(3) An entry clearance officer must issue an EEA family permit to-”

(a) a family member who has retained the right of residence; or

(b) a person who is not an EEA national but who has acquired the right of permanent residence under regulation 15.

(4) An entry clearance officer may issue an EEA family permit to an extended family member of an EEA national (the relevant EEA national) who applies for one if-”

(a) the relevant EEA national satisfies the condition in paragraph (1)(a);

(b) the extended family member wants to accompany the relevant EEA national to the United Kingdom or to join that EEA national there; and

(c) in all the circumstances, it appears to the entry clearance officer appropriate to issue the EEA family permit.

(5) Where an entry clearance officer receives an application under paragraph (4) an extensive examination of the personal circumstances of the applicant must be undertaken by the Secretary of State and if the application is refused, the entry clearance officer must give reasons justifying the refusal unless this is contrary to the interests of national security.

(6) An EEA family permit issued under this regulation must be issued free of charge and as soon as possible.

(7) But an EEA family permit must not be issued under this regulation if the applicant or the EEA national concerned is not entitled to be admitted to the United Kingdom as a result of regulation 23(1), (2) or (3) or falls to be excluded in accordance with regulation 23(5).

 

(8) An EEA family permit must not be issued under this regulation to a person ("A") who is the spouse, civil partner or durable partner of a person ("B") where a spouse, civil partner or durable partner of A or B holds a valid EEA family permit."

Procedure for applications for documentation under this Part and regulation 12

21.-” (1) An application for documentation under this Part, or for an EEA family permit under regulation 12, must be made-”

(a) online, submitted electronically using the relevant pages of www.gov.uk; or

(b) by post or in person, using the relevant application form specified by the Secretary of State on www.gov.uk.

(2) All applications must-”

(a) be accompanied or joined by the evidence or proof required by this Part or regulation 12, as the case may be, as well as that required by paragraph (4), within the time specified by the Secretary of State on www.gov.uk; and

(b) be complete.

(3) An application for a residence card or a derivative residence card must be submitted while the applicant is in the United Kingdom.

(4) When an application is submitted otherwise than in accordance with the requirements in this regulation, it is invalid.

(5) Where an application for documentation under this Part is made by a person who is not an EEA national on the basis that the person is or was the family member of an EEA national or an extended family member of an EEA national, the application must be accompanied or joined by a valid national identity card or passport in the name of that EEA national.

(6) Where-”

(a) there are circumstances beyond the control of an applicant for documentation under this Part; and

 

(b) as a result, the applicant is unable to comply with the requirements to submit an application online or using the application form specified by the Secretary of State,

the Secretary of State may accept an application submitted by post or in person which does not use the relevant application form specified by the Secretary of State."

The Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020 ( '2020 Regulations')

Grounds of appeal

8.-” (1) An appeal under these Regulations must be brought on one or both of the following two grounds.

(2) The first ground of appeal is that the decision breaches any right which the appellant has by virtue of-”

(a) Chapter 1, or Article 24(2) or 25(2) of Chapter 2, of Title II of Part 2 of the withdrawal agreement,

(b) Chapter 1, or Article 23(2) or 24(2) of Chapter 2, of Title II of Part 2 of the EEA EFTA separation agreement, or

(c) Part 2 of the Swiss citizens' rights agreement(1).

(3) The second ground of appeal is that-”

(a) where the decision is mentioned in regulation 3(1)(a) or (b) or 5, it is not in accordance with the provision of the immigration rules by virtue of which it was made;

(b) where the decision is mentioned in regulation 3(1)(c) or (d), it is not in accordance with residence scheme immigration rules;

(c) where the decision is mentioned in regulation 4, it is not in accordance with section 76(1) or (2) of the 2002 Act (as the case may be);

(d) where the decision is mentioned in regulation 6, it is not in accordance with section 3(5) or (6) of the 1971 Act (as the case may be).

(4) But this is subject to regulation 9.

Matters to be considered by the relevant authority

9.-” (1) If an appellant makes a section 120 statement, the relevant authority must consider any matter raised in that statement which constitutes a specified ground of appeal against the decision appealed against.

For the purposes of this paragraph, a "specified ground of appeal" is a ground of appeal of a kind listed in regulation 8 or section 84 of the 2002 Act(1).

(2) In this regulation, "section 120 statement" means a statement made under section 120 of the 2002 Act(2) and includes any statement made under that section, as applied by Schedule 1 or 2 to these Regulations.

(3) For the purposes of this regulation, it does not matter whether a section 120 statement is made before or after the appeal under these Regulations is commenced.

(4) The relevant authority may also consider any matter which it thinks relevant to the substance of the decision appealed against, including a matter arising after the date of the decision.

(5) But the relevant authority must not consider a new matter without the consent of the Secretary of State.

(6) A matter is a "new matter" if-”

(a) it constitutes a ground of appeal of a kind listed in regulation 8 or section 84 of the 2002 Act, and

(b) the Secretary of State has not previously considered the matter in the context of-”

(i) the decision appealed against under these Regulations, or

(ii) a section 120 statement made by the appellant."

Discussion

12.          EU free movement rights lost both direct effect and enforceability in the United Kingdom from 11 pm on 31 December 2020. The Immigration and Social Security Coordination ( EU Withdrawal) Act 2020 ( "ISSCA 2000") revokes the EEA Regulations from that point from continuing to have effect as retained EU law pursuant to sections 2 and 4 of the European Union Withdrawal Act 2018 ("the 2018 Act").

13.          Transitional protection has been provided by statutory instruments. Paragraph 3 (3) of Schedule 3 of The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 ( Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 ("the Consequential SI"), given effect by reg 2, makes specific provision for pending applications for documentation under the EEA Regulations. Paragraph 3 (1) provides for reg. 12 of the EEA Regulations to continue to apply for the purposes of considering and, where appropriate, granting an application for a family permit which was validly made in accordance with the EEA Regulations, before commencement day. Under reg 12 an entry clearance officer has discretion to issue an EEA family permit to an extended family member of an EEA national (the relevant EEA national) who applies for one. Regulation 21 of the 2016 is also retained. This required an application to be submitted on line, using the relevant pages of www.gov.uk , or by post or in person using the relevant application form specified by the SSHD and accompanied by the applicable fee. Therefore had the Appellant made a valid application under the EEA Regulations for a family permit before 31 December 2020, the ECO would have to have considered the application under EU law. This decision would have generated a right of appeal and the Appellant could have relied on EU treaties as a ground of appeal post 31 December (see Geci).

14.          In contrast available grounds of appeal against a decision under the EUSS are restricted by reg. 8 (subject to reg. 9) of The Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020 ("the 2020 Regulations"). I was not addressed on these in any detail. However, there is no right of appeal against an EUSS decision on EU grounds. This is not surprising because the EEA Regulations have been revoked and there are no EU free movement rights. From 31 December 2020, domestic law applies, save in circumstances where there is transitional protection.

15.          Neither party sought to take me through the application process, but I am in no doubt that the application made by the Appellant was an application for a family permit under EUSS. This much has been accepted by the Appellant in Mr Alam's skeleton argument and his submissions before the First-tier Tribunal. It is unarguable that the SSHD acted in bad faith deciding an application made under the EUSS under the relevant scheme. The original skeleton argument prepared by the Appellant's solicitors submits that, "it was obvious that the Appellant was applying as an extended family member of his EEA national sponsor who is his real brother". However, it not clear why this being the case, the Appellant did not make a valid application in accordance with reg. 21. I note that there is nothing to stop an applicant making an application under both routes, under the 2016 Regulations and under the EUSS (for a EUSS permit under Appendix EU); however, the deadline for the former was 31 December 2020 unless the applicant already had a right to reside in the UK at that date, in which case the deadline was the end of the grace period on 30 June 2021. While it was advanced before the UT that the application was made under the EEA Regulations, this is not consistent with the evidence or the content of the Appellant's first skeleton argument before the First-tier Tribunal. Permission was granted on the basis that it was arguable that the Appellant has an appeal right under the 2016 Regulations, whilst acknowledging that the application was made under the EUSS.

16.          The relationship between the Appellant and the Sponsor is not in dispute. It is a relationship covered under reg. 8 of the EEA Regulations. That does not mean that the application would have been granted had it been made under the EEA Regulations because the Applicant would still have to establish dependency (and or household membership) and ultimately the SSHD would have discretion to grant a family permit (reg 12(4)).

17.          Had the Appellant made an application under the 2016 Regulations, the sole ground of appeal available would be whether the decision under appeal breaches the appellant's rights under the EU Treaties as they applied in the United Kingdom prior to 31 December 2020 Regulations. However, this was an application and decision under the EUSS. The available grounds of appeal are restricted by reg. 8 of the 2020 Regulations (subject to reg. 9). While the judge considered whether the appeal nonetheless should be considered under the EU Treaties, had he done so this would have amounted to an error of law. The Appellant does not have a right of appeal against a decision made under the EUSS (IR) on the ground that the decision breaches rights under the EU Treaties.

18.          Mr Alam said that the judge's assessment of SZ was flawed because the judge did not take into account what was said by the UT at [16] of that decision. However, the SZ argument is a non-starter because the Appellant was trying to rely on a ground of appeal that was not available to him. The judge did not have jurisdiction to determine the appeal under the EU treaties.

19.          In the alternative, the Appellant seeks to rely on the WA, specifically Art 18 (o) and ( r). An appellant can appeal against a EUSS decision on the grounds that it is in breach of the WA (Reg 8 (b)). Mrs Nolan did not address me in any detail about this ground. However, Mr Alam did not explain to me how this Appellant comes within the personal scope of the Article 10. Neither party gave me much assistance on this issue; however, as a matter of fact this Appellant who could potentially fall under Article 3 (2) of Directive 2004/38/EC, and therefore within the scope. However, he does not come within scope because he did not apply for facilitation and or entry and residence before the end of the transition period. The Appellant can enjoy the substantive rights in Title II of Part Two of the WA only if he fell within scope under Title 1 of Part 2. In any event, it cannot be sensibly submitted that the SSHD should have considered the application under the EEA Regulations when it was made under a legally distinct and optional alternative route. It was open to Appellant to make an application under the EEA Regulations. Art 18 (r) requires redress procedures to ensure that the decision refusing to grant the residence status "is not disproportionate". It cannot, however, be disproportionate for the Secretary of State to have determined the application by reference to what the Applicant specifically asked for. The application was not deficient in the sense that it can be argued that the SSHD was under any obligation to assist the Appellant to rectify any errors (Art 18 (o)). The application was a valid application made under the EUSS.

20.          While this is not a ground of appeal on which Mr Alam relies, the judge did not decide the appeal under Article 8 ECHR, relying on Amirteymour [2015] UKUT 466. However, this was misconceived because Amirteymour focussed on the terms of the EEA Regulations and in an appeal of this nature the Tribunal is concerned with the 2020 Regulations. There is a right of appeal against a EUSS decision on Article 8 ECHR grounds, in two circumstances. In the absence of a s.120 statement, in order to rely on Article 8, the Appellant must seek consent from the SSHD to raise a new matter (reg.9 (4).) in accordance with Mahmud (s85 NIAA 2002 ' new matters') [2017] UKUT 488. The judge erred. However, nothing turns on this because the Appellant did not rely on Article 8 and did not, in any event, have consent.

21.          There is no material error of law in the decision of the First-tier Tribunal.

 

No anonymity direction is made.

 

 

 

Signed Joanna McWilliam Date 25 July 2022

 

Upper Tribunal Judge McWilliam