PETITION OF OA AGAINST SECRETARY OF STATE FOR THE HOME DEPARTMENT

Factual and Procedural Background

The Petitioner, a Dutch national residing in the UK, sought judicial review of a decision by the First-tier Tribunal (Immigration Chamber) (FtT) dated 8 December 2020. The review concerned the determination that there was no right of appeal against a decision by the Secretary of State for the Home Department dated 3 August 2020. The petition was brought on behalf of the Petitioner’s wife’s adopted son, a minor. Permission to proceed was granted early in the proceedings, and notably, the Secretary of State did not enter an appearance.

In April 2019, the Petitioner’s wife, a Ugandan national, adopted a Ugandan child born in September 2018 whose natural mother died shortly after birth. The wife and her adopted son lived in Uganda at the time and throughout the proceedings. The Petitioner and his wife also have two biological children.

In November 2019, the wife and her three children applied under the EU Settlement Scheme (EUSS) for family permits to travel to the UK to join the Petitioner, who was exercising treaty rights in the UK. While no explicit human rights claims were made, the adopted child’s application included a statement emphasizing his adoption and the impossibility of separation from his family.

Permits were granted to the wife and her two biological children, who have since moved to the UK. The adopted child’s application was refused on the basis that the adoption was not recognised under UK immigration rules, specifically Annex 1 of Appendix EU (Family Permit). Uganda is not a country whose adoption orders are recognised under the Adoption (Recognition of Overseas Adoptions) Order 2013, and the adoption order was not recognised in the UK or Islands.

The adopted child appealed to the FtT, arguing that the refusal constituted a refusal of a human rights claim and was disproportionate. Reference was made to the Upper Tribunal decision in MY (refusal of human rights claim) Pakistan [2020] UKUT 00089 (IAC), which categorised appeals into three types regarding human rights claims and rights of appeal under the Nationality, Immigration and Asylum Act 2002.

The FtT decided there was no right of appeal because the application was made before 31 January 2020, the date after which the EUSS expressly provides a right of appeal. The FtT held that the refusal was not a refusal of a human rights claim and that no human rights considerations were apparent in the decision.

Legal Issues Presented

1. Whether the adopted child had a right of appeal against the refusal of the family permit under the EUSS despite the application being made before 31 January 2020.
2. Whether the refusal of the family permit constituted a refusal of a human rights claim engaging article 8 of the European Convention on Human Rights (ECHR).
3. Whether the FtT erred in law by failing to properly consider or provide adequate reasons regarding the human rights aspects of the appeal.

Arguments of the Parties

Petitioner’s Arguments

• The Petitioner accepted that there was no express statutory right of appeal under the EUSS for applications made before 31 January 2020 but contended that the FtT retains jurisdiction to hear appeals where a decision would give rise to a breach of section 6 of the Human Rights Act 1998, specifically under sections 82(1)(b) and 84(2) of the Nationality, Immigration and Asylum Act 2002.
• Two approaches to this jurisdiction were identified: (a) whether the outcome would breach article 8 ECHR regardless of the application’s terms, supported by the Court of Appeal decision in Balajigari and Others v Secretary of State for the Home Department [2019] EWCA Civ 673, which holds that article 8 rights are engaged from the point of the legal decision; and (b) whether the application and supporting materials constitute a human rights claim, referencing the categories in MY.
• The Petitioner argued that the child’s case falls into the third category identified in MY, where an application under immigration or EU law inevitably gives rise to an article 8 claim.
• It was further contended that the FtT failed to engage with the relevant facts and submissions and did not provide adequate reasons for its decision, rendering the decision unlawful.

Table of Precedents Cited

Court's Reasoning and Analysis

The court acknowledged the unusual nature of the case and the absence of a response from the Secretary of State, which limited the adversarial process. The court noted the FtT’s conclusion that no right of appeal existed because the application was made before 31 January 2020, the date after which statutory appeal rights under the EUSS arise.

The court observed that the FtT did not adequately consider whether the refusal engaged article 8 ECHR rights, despite submissions invoking human rights grounds. The court found the FtT’s reasoning deficient, particularly its failure to engage with the grounds of appeal and to provide adequate reasons for rejecting the human rights claim.

The court also highlighted the complexity and potential wider significance of the case, including the question of whether appeal rights under the EUSS existed before the statutory cutoff date, but refrained from deciding on the merits due to the lack of opposing submissions and the inadequacy of the FtT’s reasoning.

Ultimately, the court quashed the FtT’s decision and remitted the matter to a differently constituted tribunal for reconsideration with proper engagement on the human rights issues raised.

Holding and Implications

The court’s final ruling was to QUASH the decision of the First-tier Tribunal and remit the case to a differently constituted tribunal for further consideration.

This decision directly affects the parties by requiring a fresh hearing that properly addresses the human rights arguments and appeal rights. The court did not establish new precedent but emphasized the necessity for tribunals to engage fully with human rights claims and to provide adequate reasoning when refusing appeals on procedural or substantive grounds.