[2024] UKUT 00101 (IAC)

The appellants are Indian nationals who were born on 13 and 19 September 1955 respectively. The first appellant is the second appellant’s husband.

The appellants’ son, Kapil Nagdev, is their sponsor. He was born in India on 21 April 1980. In 2005, he acquired Austrian citizenship after his marriage to an Austrian citizen. He renounced his Indian citizenship in order to acquire Austrian citizenship. The sponsor and his Austrian wife subsequently divorced, however, and he moved to the United Kingdom in June 2006. He married again in 2009. His wife subsequently naturalised as a British citizen and their twin daughters are also British.

The sponsor sought and was granted a residence card in 2009. On 9 June 2014, he was granted a permanent residence card. In October 2015, he went to the Austrian Embassy in London to renew his passport and was told that it had been cancelled. He was informed that his Austrian citizenship had been revoked on 2 January 2012.

The sponsor sought but was refused leave to remain as a stateless person. On 20 July 2020, the Secretary of State revoked his permanent residence card on the basis that he had ceased to have, or had never had, a right of permanent residence: regulation 24(4) of the 2016 Regulations refers. The sponsor appealed against that decision.

The sponsor’s appeal was allowed by the First-tier Tribunal on 4 October 2021. We need not set out much of the reasoning; it suffices to note the following. The judge concluded that there was no evidence to suggest that the sponsor’s Austrian citizenship had been obtained by fraud or that the Austrian authorities had decided that his citizenship had never been valid. The judge accepted, therefore, that the sponsor had been an Austrian citizen until 2 January 2012. As he had been working in the UK since his arrival in 2006, he had acquired a right to reside permanently before he was deprived of his Austrian citizenship in 2012. The loss of his EEA citizenship was not ‘fatal to permanent residence’ and there was no basis to infer such an approach. There was accordingly no basis on which to revoke his permanent residence card and his appeal was allowed. There was no appeal to the Upper Tribunal.

In the meantime, the appellants had entered the United Kingdom as visitors on 12 September 2011. They began living with the sponsor. They sought residence cards as his dependent family members. Their first applications were refused and appeals were dismissed in January 2012. They made further applications which were refused in September 2012. The appellants appealed to the First-tier Tribunal again. The only matter in issue was whether they were dependent on the sponsor. The judge of the First-tier Tribunal found that they were dependent upon him and allowed their appeals on 12 November 2012. There was no appeal to the Upper Tribunal and they were duly granted residence cards which were valid from 1 March 2013 to 1 March 2018.

On 5 November 2020, the appellants applied for permanent residence cards. The application and the covering letter were prepared by Mr Jafferji, who has been assisting the family throughout. His letter set out something of the background we have rehearsed above before submitting that the appellants continued to be dependent upon the sponsor and that the sponsor was ‘continuing to exercise Treaty rights by working in the United Kingdom’. It was submitted that the appellants had consequently acquired the right to reside permanently in the United Kingdom by 12 September 2016.

The Secretary of State refused the applications on 4 January 2021. There was a single ground of refusal, which was that the appellants had not provided adequate evidence of the sponsor’s identity or EEA nationality. The Austrian passport which had previously been submitted had expired on 20 October 2015 and the respondent noted that the appellants had not sought to submit that they had adequate alternative evidence of the sponsor’s nationality.