[2024] UKUT 00101 (IAC)

The respondent stated in her decision that the appellants had no right of appeal against the decision. They lodged an appeal in any event and the Duty Judge in the First-tier Tribunal issued a short decision on 11 August 2021 in which he stated that there was a right of appeal.

The appeals then came before the judge, sitting in Birmingham, on 7 February 2022. Mr Jafferji represented the appellants. The respondent was represented by a Presenting Officer (not Mr Deller). The appellants spoke only to adopt their witness statements and the judge proceeded to hear submissions.

The judge summarised the submissions at [20]-[54]. It was accepted by Mr Jafferji that the appellants were no longer beneficiaries under Directive 2004/38/EC but it was clear that they had previously been beneficiaries. Their case was on all fours with Chenchooliah v Minister for Justice and Equality [2019] EUECJ C-94/18; [2020] Imm AR 80 and it was accordingly for the respondent to establish that any restriction imposed on them was proportionate. It was submitted for the respondent that Chenchooliah was distinguishable because the sponsor had not been a Union Citizen since 2012. No question of proportionality arose, therefore.

The judge began his findings by setting out an eleven-page excerpt from Chenchooliah. In the final two pages of his decision, he set out his reasons for allowing the appeals under the EEA Regulations. He found at [59] that

“because the appellants are connected to a former EU citizen and relied on that in the past to enjoy rights, the test of proportionality in EU law (not human rights law) has direct applicability in this appeal.”

The judge then took account of a number of matters which he considered to be relevant to the proportionality of the respondent’s decision. Those matters included the fact that the sponsor had previously demonstrated his Austrian nationality; the length of legal residence the appellants had enjoyed with the sponsor and his family in the United Kingdom; and their diminished ties to India and the deterioration in their quality of life on return to that country. In all the circumstances, the judge found that the respondent’s decisions were disproportionate, and he allowed the appeals accordingly.