This appeal was heard in the Upper Tribunal (Immigration and Asylum Chamber) (“UT”) on 16/01/2019 and concerned the refusal by the Secretary of State for the Home Department (“SSHD”) of an application for leave to remain (“LTR”) on human rights grounds, by dependants of a Turkish businessperson previously granted indefinite leave to remain who sought leave to remain in line with him.
The Appellants, Turkish nationals, were the wife and son of their Turkish Sponsor who, through the provisions of the European Community Association Agreements, entered the UK in August 2010 and obtained Indefinite Leave to Remain on 29/04/16.
The Appellants entered the UK on 12/08/14 to join the Sponsor but their application to remain in line with him was refused on 11/11/15.
On 08/12/15, the Appellants applied for LTR on the basis of their right under Article 8 of ECHR. They provided a “Letter of Application” which set out family and private life in the UK as the basis for the application.
That application was refused by the SSHD and the Appellant’s challenged the decision to the First-tier Tribunal (Immigration and Asylum Chamber) (“FTT”).
Although the FTT found that the Appellants enjoyed family life with their Sponsor, it dismissed the Appeals and found that the Appellants had not met the requirements of Appendix FM of the Immigration Rules; were in the UK without leave and that there were “no insurmountable obstacles” to family life continuing in Turkey. Additionally, as the dependent child had only lived in the UK for 4 years, he could not be considered a ‘qualifying child’ under the Immigration Rules.
The FTT was also not satisfied that it would be disproportionate to require the Appellant’s to return to Turkey when the Human Rights application was considered outside of the immigration rules under Article 8.
The Appellants challenged this decision to the UT.
Grounds of challenge to the UT
Between the date of the decision and the date of the hearing (on 06/07/18), Appendix ECAA of the Immigration Rules came into force. This Appendix set out requirements to be met for the grant of ILTR to Turkish nationals who have been granted LTR under the ‘ECAA worker’ or ‘ECCA business’ category and their partners and children.
The Appellants firstly sought to challenge the decision of the FTT on the grounds that it had erred in law in failing to consider whether the Appellants met the requirements of Appendix ECAA. Further, that this fact was material to any assessment of proportionality outside of the Immigration Rules that the court should have undertaken before the decision to dismiss.
On the second ground, the Appellant’s argued that the FTT judge erred in law by failing to consider the principle in Chikwamba v SSHD  UKHL 40 which set out that only “rarely in family cases involving children should an Article 8 appeal be dismissed on the basis that it would be proportionate and more appropriate for the appellant to apply for leave from abroad”.
Question of Law
The Tribunal was required to consider whether the reliance, by the Appellants, on the assertion that they satisfied Appendix ECAA constituted a ‘new matter’ within the meaning of section 85(6) of the Nationality, Immigration and Asylum Act 2002 (as amended) (“the 2002 Act”). If it did, then this would preclude the court from considering it without Respondent Secretary of State consented.
Assessment of the UT
The court indicated that although the initial application by the Appellants was an application for leave to remain on the basis of the appellant’s rights under Article 8, the Letter of Application had also stated that the Appellant spouse could not submit an application under the 5-year partner route because she had not passed her English language test. The letter then proceeded to make submissions as to the reasons why this family unit should not be expected to relocate to Turkey and why it would be in the best interests of the child Appellant to be permitted to remain in the UK with his parents.
The case the Appellants sought to put to the UT on the issue of proportionality in relation to their Article 8 claims required new legal judgment to be made. Given that the importance of the proposition that compliance with the Immigration Rules was relevant in deciding proportionality, a legal judgment as to whether or not the appellants complied with the Immigration Rules constituted a new factual matter because a new judgment fell to be made based on the same facts. This interpretation was held consistent with s.86(6) of the 2002 Act (as amended) because the Appellants relied on their satisfaction of the criteria in part 7.1 of Appendix ECAA , which had not been a matter before the FTT.
The UT decided that the judge had no jurisdiction to consider whether the Appellants satisfied Appendix ECAA. Therefore the Judge did not err in law and the FTT decision to dismiss the Appellants’ appeals stood.