[2023] UKUT 149 (AAC)

Although there are other grounds of appeal. to which I return below, Mr M’s central submission is that the FtT erred by failing to consider art.13(2), even though he had referred to it in his submissions to them, and that that article goes further than reg.10(5) does. In his submission, even if the FtT was correct in its construction of reg.10(5), the right under art.13(2) is not limited to being conferred on a party to the now dissolved marriage, as reg.10(5) and the FtT’s reading of that provision suggest. Rather, it is available to “a Union citizen's family members who are not nationals of a Member State” as, in his submission, Ms T was, where the relevant conditions are met (which they were). Further, his submission is that while Ms T could have satisfied the wording in the sub-paragraph of art.13(2) beginning “Before” by continuing to be the dependant of Mr M, that was not the only route by which he could do so. Ms T could also satisfy it through the self-sufficiency route: there are various suggestions in the FtTs’ decision that it found her to have independent means – albeit it failed to make proper findings on that issue – and following the decision of the CJEU in (C-247/20) VI v HMRC affiliation to the NHS will meet the requirements for comprehensive sickness insurance cover.

In his initial written submission, Mr Edwards suggested that at the time of the divorce, it is material that Ms T was a family member of Ms K (an EEA citizen) and a dependent of Mr M. The right to reside of Ms T which article 13(2) preserved, is that of being a family member of Ms K (namely, her mother-in-law) and a dependent on BM. Following the divorce, Ms T’s right to reside also continued as being a dependent of Mr M, a permanent resident under article 16 of the Directive. However, on either view, the essential characteristic of Ms T’s right to reside in the UK is being a dependent of Mr M. This was the legal position both before and after Ms K and Mr M’s divorce. He submitted at that stage that “the same result substantially follows from the application of regulations 10(5) and 10(6) of the Regulations”.

Mr Cullimore submitted that the FtT carried out a fact-finding exercise. He referred to E and R v SSHD [2004] EWCA Civ 49. He cited para 35, but that concerns a particular provision in the rules of the former Immigration Appeal Tribunal, which does not assist me in the present case. More relevant was his reliance on para 63 where the Court of Appeal stated:

“In our view, the CICB case points the way to a separate ground of review, based on the principle of fairness. It is true that Lord Slynn distinguished between "ignorance of fact" and "unfairness" as grounds of review. However, we doubt if there is a real distinction. The decision turned, not on issues of fault or lack of fault on either side; it was sufficient that "objectively" there was unfairness. On analysis, the "unfairness" arose from the combination of five factors:

i)

An erroneous impression created by a mistake as to, or ignorance of, a relevant fact (the availability of reliable evidence to support her case);

ii)

The fact was "established", in the sense that, if attention had been drawn to the point, the correct position could have been shown by objective and uncontentious evidence;

iii)

The claimant could not fairly be held responsible for the error;

iv)

Although there was no duty on the Board itself, or the police, to do the claimant's work of proving her case, all the participants had a shared interest in co-operating to achieve the correct result;

v)

The mistaken impression played a material part in the reasoning.”

This case, he submitted, set a high bar before a mistake of fact constituting an error of law would be found and the present case did not clear it.

I perceived certain difficulties with Mr Edwards’ original submission:

In post-hearing submissions, Mr Edwards indicated that:

“The Secretary of State concedes that the drafting of regulation 10(5) of the EEA Regulations does not fully transpose the retained right to reside in the UK conferred by article 13(2)(a) of the Directive on a family member of a third country national following the dissolution of a marriage between the third country national and an EEA citizen who was exercising treaty rights in the UK. The terms of the EEA Regulations, as drafted, cover only the third country national who was a party to the marriage, whereas the terms of article 13(2)(a) protect the third country national family members of the Union citizen.”

Interesting though the point may be, it ultimately fails to get off the ground, unless Mr M can show that there was an error of law in the FtT’s conclusion that Ms T was not dependent on him. There was no submission, nor evidential foundation, before the FtT which could have supported a conclusion that Ms T had (or had had) sufficient resources to meet the test of self-sufficiency under art.7(1)(b) of Directive 2004/38. It is too late to raise that alternative position in these proceedings. The only basis on which Ms T could establish rights as a family member and subsequently retain such rights under art.13(2) was if she was and remained a dependent of Mr M.