I do not have a huge appellate practice, as you folks know, which is, as I like to repeat, because my applications are usually successful, or I am able to casework into such success with further out-of-court bickering. However I appeared in a couple of notable appeals in the last couple of months, one in Taylor House and one in Belfast, of all places (a culture shock of its own!). Both of them were allowed, and SSHD had not pursued PTA in either (not surprised as they were both unopposed by SSHD – a PTA would have been really rich!). Nonetheless I thought I’d share their main points in case someone finds them useful.
In a first appeal at Taylor House, an EU citizen mother was arguing for a 18-month St Prix leave (as opposed to a “standard” 12 months HO sticks to). I read St Prix and SWP v SFF a lot and concluded that the length of appropriate St Prix leave was definitely subject to a factual determination. In the case at hand, the child was born more than 2 month prematurely, with mother going straight to the hospital after being unwell at work, and was hospitalised for 6 weeks after birth because he was so small that he was unable to breath and eat unaided. He turned out fine more or less, but had development difficulties and was later diagnosed with autism. He is doing much better now, the boy, now 6, came to the Appeal with the parents and his younger sister, and generously offered me crisps! Obviously he is doing better due to all the extra time the mother had spent caring for him at the most crucial time. Something HO apparently hadn’t thought he needed in the first place. the judge thankfully accepted our argument that thinking in St Prix and SFF called for determination on the case by case, and birth of a premature and disabled child was exactly such as case.
There were two peripheral issued to this, one was the WRS effective date — the HO balked that it must have been the date certificate was issued, quite some months after the job start date. We did not contend that she applied within a month of starting the job – we argued that no one knew when she applied or how long issuance took, since no such date was advanced by SSHD nor known to us. But the WRS does infamously list “Job start date” which is always the actual start date, whenever the application was made for the WRS registration or the certificate issued. We wanted this date. My deeper argument (such deep stuff!) was that I printed out the Regulations that actually authorised the scheme and issuance of the certificates (you can find it under “resources”) and nowhere in it does it prescribe any alternate cause of action, or document validity, when an application is NOT made in time. No way you can derive from that document, that the certificate issued upon a delayed WRS registration application was to be somehow deficient as to covering the entirely of the employment it was issued for. The judge agreed – he used the words “self-cured”. He said he had a chance to previously consider the same issue and came to the conclusion that the HO had “self-cured” the late application problem in those cases when it went on to issue the WRS certificate!
The last but not least issue, which I considered settled law as it was directly addressed by SFF – but apparently HO is unaware of that – was whether it was sufficient for the mother to return to the job market, for the purposes of St Prix test, by registering with Jobcentre as opposed to actually working (in my case, she registered with Jobcentre 18 months after leaving work pre-childbirth, received JSA for 6 months, then her husband found new/better work and she just decided to stay at home, having found out by then that she was pregnant with the couple’s second child – so that was all we had to work with). The judge predictably agreed that it was sufficient under SFF, so that was it, appeal allowed.
Why has an EU citizen bothered to go through all that, you will ask, since they promised to disregard Treaty Right post Brexit? The Appellant lived here for more than 10 years, her breadwinner husband is non-EU and kids are UK-born and their British passports were in question, they all want certainty, which includes citizenship, not vague promises, and I can understand that.
The other appeal, in which I appeared in Belfast, was a very different kind of case. Unlike the first one, it was not MY case — I only took it over barely a month before the listed hearing, after being persuaded in very strong terms by a former successful client and a supporter of my practice, who lived also in NI and knew the Appellant personally. The case was an EEA Derivative Residence card case, and oh what a mess it was! – so much so, that my initial comments to the poor woman were along the lines of not pursuing the Appeal as it was 50/50, and spend money instead on an Application under the Appendix FM as a parent on 10-year route (NI-born children were Irish citizens and, under our nationality law, settled on arrival!). So much so that I chronicled that advice by scribbling it all on top of the decision letter, and had to later frantically blacken it out before putting it into the Appeal bundle.
The mother was non-EU and had previously held an RC as a durable partner of an EU national dufus, who however split days after their second child was born (and the oldest was still 2 years old). Understandably (to us, but alas, not her) the mother retained no Free Movement rights or any kind, and unfortunately also blissfully unaware of Dias, started to bother with that whole thing only after her RC was nominally running out (eg a few years later). The mother works full time as a carer in retirement homes, and had done since the father split, and supports the children and raises them by herself. A typical strong Russian/Ukrainian woman! ))
However she had a VERY bad solicitor. I honestly have no time, but people who do this type of “work” should be stricken — why rob single mothers of money if you have NO IDEA of EU Free Movement law and no experience with it? the solicitor whom I will not name – but am really itching to – initially blundered by failing himself to make a distinction between a spouse and unmarried partner in EU law (understandably — in British immigration law, there is no distinction! so lack of experience or motivation to educate oneself) – so he filed a PR application and of course it was refused, to make it worse in that application he made some extensive claims of the ex-partner (the now missing father)’s Treaty Rights, something which only prejudiced his next inevitable application — for a derivative residence card.
Did he figure it out himself? Oh no, it was actually — true fact – explained to him by a HO caseworker in the refusal letter. Bewildered HO had actually advised him to look into whether his client had a derivative right! Generous, considering HO itself considers derivative rights only in context when the other parent is not in the UK, dead or in prison, and this first completely hopeless on the law PR application was stuffed with thankfully unsubstantiated claims as to how close to the children and well working in the UK the father was.
Next he filed a Derivative RC application. But what did he file? An application under Chen — unfortunately this was the only derivative right he seems to have discovered in his research. Chen wasn’t working, mainly because there was no health insurance of course, and no self sufficiency up to HO standard (HO recognises parents employment based self sufficiency when it is enabled by the child’s status only when it came about initially due to parent having other status, such as a Tier 2 visa, something that was questionable in this case as there would be a possible gap between the mother being a genuine durable partner and the Chen situation, to the exclusion of other carer, arising). His claims to self-sufficiency were padded again by assurances, thankfully unsubstantiated, that the father was paying generous child support, and again that he was in the UK and working. And of course, those last two are big NO-NOs of derivative rights, which are for one parent in ABSENCE of an alternative carer. So any claims as to the children’s other parent presence in the UK, Treaty rights or immigration status, are very UNhelpful to those claims.
Plus of course I think there were tax credits heavily involved and no one told that so-called solicitor that you can’t be self-sufficient and on benefits at the same time! I used to live in Belfast myself and had an application to become a solicitor there in progress – passed an exam and all — needed to find a trainee position and gave up on it. Instead i moved to England and started this practice with OISC. Now THIS GUY is apparently a solicitor? What sort of shop are they running there? Anyway, moving on.
I suppose the clown deserves some credit, as in about 2 months after filing he realised that the applied for the wrong derivative Right and the case should have been Ibrahim/Texteira instead (EU child in education). All elements of Texteira claim were present, if only one could shake the unhelpful claims of all sorts, which he nonetheless continued to make. He wrote to the HO in August 2017 with some proof of older child’s schooling and asked that the case be considered under Ibrahim Texteira. But the Capitol had real PROBLEMS with ever opening post in August. So no one opened it. Until November. The case was meanwhile refused in October under Chen.
Realising that he f**ed this one up, the solicitor managed to solicit reconsideration – and an actual promise that it will be reconsidered – under Ibrahim Texteira, because HO failed to read his post from August. But he NEVER informed the client or explained any of this to her (I only found out this later from HO letters to me, explaining what happened, and HO disclosure to me of the correspondence involved — the so-called solicitor never gave me, of the client, ANY files). To her, he said the application was refused by evil forces and to file an appeal, for which he charged her and they did. HO apparently thought that they agreed to reconsider in lieu of an Appeal, but bottom line was, they both were pending when she has finally instructed me in late April, having received a notice listing a hearing for June. What she also received was an “alternative carer” questionnaire from the HO person in charge of the promised reconsideration. By that time I guessed that application was made under Chen, Ibrahim Texteira claim was possibly made later, and reconsideration was underway but it was all educated guesses and I could not yet understand what triggered it.
Moreover, before he learned that he was dismissed, the so-called solicitor fired off an unhelpful series of claims, thankfully again unsubstantiated, in response to the “Alternative care questionnaire”, the purpose of which, although it was in the name, he clearly failed to grasp. Having no benefit at the time of actually knowing what if anything he provided, we scrambled to provide an alternative response. I later learned from the re-refusal letter (written with a mild hint of sarcasm as they clearly understood the struggle behind the scene) that, having tailored my submission to the requirements of the Ibrahim Texteira very narrowly, I had obviously responded in a vein very different from the previous chaotic claims. I wrote that the father’s contact with the children is ad hoc and not regularly scheduled, and his Treaty rights status is unknown.
The latter was technically true — at my urging trying to make enquiry into whether he may have acquired PR (with a view to possible registration of one child as British) the client had contacted the father and he agreed to make a call to HMRC for a Job history record and provide a printout to her. We received it and enclosed later in the bundle – it was not possible to discern five years from it, and any employment listed ended more than a year ago in 2016-17 financial year. The year just ended was blank. the Home Office own “alternative carer” instructions to staff indicate that the alternative carer by definition is a person with a right to reside or some sort of immigration status superior to that of the applying parent.
In the Uk generally an EU citizen child will have either arrived with one parent when another never lived in the UK or left the UK, otherwise of course by definition an EU child will have inherited their EU nationality from an EU parent who they presume to be an alternative carer if they are here. However, In NI, where children are Irish at birth, they may well be EU citizens even when born to both illegal parents (as was the case in Chen). So alternative carer provision has a bigger scope. Ultimately, an EU citizen without PR who is not exercising a Treaty right, has no better right to be here than my client, and HO has not showed that HE had a right to reside any more than my client did — our best evidence, a recent HMRC printout, didn’t shed light on his Treaty Rights either. That of course was not what the solicitor had been furiously submitting – but again, he had no evidence. So this was oddly incongruent, but I thought we had a shot.
I looked up the facts in Ibrahim case itself — the EU citizen father in that case was in fact in the UK at the time of the controversy, although it was conceded that he hadn’t been working. But there seemed to be no relationship of any kind that the court suggested that that fact had to the outcome, nor did the court take any interest in his physical presence or status. The standard it seems was that the EU citizen child would be unable to continue to be educated in the UK if the “primary carer” was required to leave. The HO appeared to have drawn their very dramatic “alternative carer” concept from that standard (just as they invented “COL test” for Surinder Singh from O and B, which contained none such thing). There was no question – HO conceded that – that my client was the primary carer. But HO standard of “unable to continue education in the UK” is essentially tantamount to the caseworker asking themselves – “what will happen if this parent was hit by a bus tomorrow?” – and if, after playing that in your mind, you conclude that the other parent or relative will take them in, then boom – you have yourself an alternative carer. No derivative right! That is why we generally know that derivative rights work with HO when the other parent has never been to, or left, the UK, and his residence abroad can be proven, or when the other parent is dead, in prison, or stripped by a family court of parental rights, prohibiting all contact. That’s about it.
That’s why i didn’t want to initially take this appeal. But the hearing date was so close, that to lose it seemed like a waste. So I started to look into Ibrahim and Texteira and realised that this is all completely arbitrary. In reality we need to do nothing more than to ask ourselves what WILL ACTUALLY happen if this person were to leave the UK? Sure a 16-year old in the last year of GCSEs will maybe stay with a distant relative, or at a friend’s house or whatever. What about a 5-year old primary school student who has never lived with anyone expect their mother, who has no meaningful contact with the other parent with whom he doesn’t remember ever living, and who had started a new family? Ok maybe if my client was from an extremely dangerous war-ravaged country. But my client was from Ukraine, a country with EU-comparable living standards, where her parents own a large house with a fruit garden. Is it conceivable that for some strange reason she’d be leaving a 5-year old with virtual strangers in a not particularly well off part of Northern Ireland?
No, it is not conceivable, and it never happens. As we know well from the recent coverage of what happens in the US, literally no one wants to leave their toddler with strangers in an ostensibly better country — people heading back to El Salvador, Dominica, rural Mexico, all take their kids, or at least they want to. The reality of the circumstances this kid would find in Ukraine is much better, let alone that his mother also wouldn’t be working in a care home there, but probably in a bank or something (but this is a different conversation). So there is no actual, factual question as to what will happen if my client were to leave — so long as she is alive, this child will be with her, and he or she will be fine. But they will not be continuing a UK education. And that is the only test. The Tribunal agreed.