This appeal concerned an Albanian national who applied for an EEA residence card in 2019 as the extended family member of his EEA national partner who was in the UK. However, the application was refused under the Immigration (EEA) Regulations 2016, regulations 18(4)(c) and 18(5). This was because the First-tier Tribunal (FTT) had carried out a due extensive examination of the appellant’s personal circumstances under regulation 18(5) and found that the appellant had committed a serious offence in 2013 and received a sentence of 20 months of imprisonment, and then entered the UK in breach of a deportation order twice. The FTT also found that the appellant started his family in the UK knowing that he did not have the right to reside here.
The appellant was given permission to appeal to the Upper Tribunal (UT) on the basis that the FTT had not sufficiently considered the principle set out in Khan v SSHD & Anor [2017] EWCA Civ 1755 of “clear advantage”. Succinctly put, this principle sets out that a Family Member of an EEA national has a clear advantage over others when the SSHD is exercising their discretion to allow them residence, as EU law upholds the integrity of the family unit. It was argued in the UT that the FTT had not given this legal provision weight, and, indeed, had not considered it at all.
The UT however, dismissed this. Whilst Judge Sheridan did concede that the FTT had not mentioned Khan v SSHD & Anor directly, he stated that the decision to deny the appellant’s appeal on the basis of his criminality and his flouting of UK immigration conditions was correct and had considered the spirit of the principle. Judge Sheridan set out that the appellant’s criminality was significant, and the fact that he breached his deportation order not once, but twice, showed a profound disregard for UK immigration law. He found that the FTT was entitled to reach the decision that it had.
The significant point in this case is that, whilst the “clear advantage” principle does indeed confer an advantage on those family members of an EEA national when considering their applications, this advantage does not have to materialise in a successful application or decision if there are other factors which would warrant the individual being refused. It is an advantage only, and not a right. Significant criminality and disregard for immigration law will often still result in a refusal.
By: Cameron Dyer