The Upper Tribunal has overturned a decision by the First-tier Tribunal to allow the appeal of a couple who were trying to rely on their residence rights under EU law in circumstances where their sponsor had lost his EU citizenship. The case is Secretary of State for the Home Department v Nagdev & Anor (Procedural safeguards; expulsion; Chenchooliah) [2024] UKUT 101 (IAC).

Background

The appellants are a married couple, both Indian nationals and both born in 1955. Their son was born in India on 21 April 1980. In 2005 he acquired Austrian citizenship via marriage. After divorcing his wife he moved to the UK a year later. In 2009 he married again, his wife later naturalised as a British citizen and they have two British citizen children.

The son was granted a residence card in the UK in 2009 and a permanent residence card in 2014. In October 2015 he went to renew his Austrian passport and was told that it had been cancelled and his citizenship revoked in 2012. He had renounced his Indian citizenship in order to take Austrian citizenship so he made an application for leave to remain as a stateless person.

This was refused and on 20 July 2020 the Home Secretary revoked his permanent residence card on the basis that he had ceased to have or never had the right of permanent residence (under regulation 24(4) of the 2016 Regulations). He appealed that decision and his appeal was allowed on 4 October 2021, the judge concluding that he had been an Austrian citizen until 2 January 2012 and had acquired his permanent residence before losing his Austrian citizenship. The tribunal held that the loss of his Austrian citizenship was not ‘fatal to permanent residence’.

Mr and Mrs Nagdev had entered the UK as visitors on 12 September 2011 and sought residence cards as dependent family members of their son. This was refused and their appeals dismissed. A second application was rejected but this time the judge allowed the appeal, finding that they were dependent on their son, the sponsor. They were granted residence cards valid from March 2013 to March 2018.

They then applied for permanent residence cards under regulation 21(5) of the Immigration (European Economic Area) Regulations 2016 on 5 November 2020. The applications were refused on 4 January 2021 on the basis that they had not provided adequate evidence of the sponsor’s identity. In the refusal letter, it was stated that there was no right of appeal against the decision. In a good demonstration of why you should not necessarily take the refusal letter at face value on that, they appealed and the First-tier Tribunal accepted jurisdiction.

On 9 February 2022 the First-tier Tribunal allowed the appeal. By this point, the appellants were not claiming that they had acquired permanent residence but that they should be granted a right of residence. The judge accepted the argument made on behalf of the appellant that the case of Chenchooliah v Minister for Justice and Equality [2019] EUECJ C-94/18; [2020] Imm AR 80 was applicable. This was a case concerning the expulsion of an EEA citizen from a third country and meant that the Home Secretary would be required to show that the decision taken was proportionate under EU law.

The First-tier judge considered that this case applied to the appellants because they were connected to a former EU citizen. After considering proportionality, the judge allowed the appeal.

Appeal to the Upper Tribunal

The Home Secretary appealed on the grounds that “the appellants had not on any proper view accrued five years residence as the family members of a qualified EEA national”. The Upper Tribunal held that the appellants had lost their rights under EU law once their son had ceased to be an EU citizen, in 2012. The fact that he had permanent residence was deemed to be “immaterial” [at 31].

The tribunal also held that as there had been no removal decision, Chenchooliah was of no relevance and the First-tier judge had erred in considering that it was and applying the proportionality test.

The Home Secretary’s appeal was therefore allowed and the decision of the First-tier Tribunal set aside.

Headnote

The decision of the CJEU in Chenchooliah v Minister for Justice and Equality [2019] EUECJ C-94/18 (10 September 2019); [2020] Imm AR 80 extended the procedural safeguards in the Citizens’ Rights Directive to protect third country nationals against decisions to expel them, where expulsion was on the ground that they no longer have a right of residence under the Directive. Where there has been no expulsion decision, the procedural safeguards are of no application and no question of proportionality arises.