Natalia Heritage, R (on the application of) v The Secretary of State for the Home Department

EU rights of residence exist independently of an application for residence documentation. In an Article 8 assessment, a decision-maker must take account of an applicant’s relevant historic exercise of Treaty rights, since it may materially affect the assessment of immigration history and proportionality.

Family life may exist between a parent and adult children where dependency exceeds normal emotional ties. The proportionality of requiring family life to continue by indirect means depends on the strength of the ties and the family’s connections with the United Kingdom. A decision which overlooks material evidence on those matters may be irrational.

The applicant, a Russian citizen, had previously lived in the United Kingdom as the spouse of a British citizen and as the mother of two British sons in education. After her application for further leave was treated as invalid for non-payment of the fee, the Secretary of State refused a later application without a right of appeal.

The First-tier Tribunal refused an extension of time to appeal. During the judicial review, the Secretary of State issued a supplementary letter addressing Article 8 outside the Immigration Rules. The applicant challenged both the First-tier Tribunal decision and the Secretary of State’s decisions of 1 May 2013 and 11 March 2014.

The central issues were whether the supplementary decision could be considered, whether EU residence rights were relevant to proportionality, and whether the Article 8 assessment lawfully addressed the applicant’s relationship with her adult sons.

1. The judicial review challenge to the First-tier Tribunal was dismissed. Once the applicant’s original application was validly treated as invalid, she was an overstayer. The refusal of further leave was not an immigration decision carrying a statutory right of appeal. The First-tier Tribunal therefore had no jurisdiction to entertain the late appeal.

2. The judicial review against the Secretary of State succeeded. The decisions dated 1 May 2013 and 11 March 2014 were quashed as Wednesbury unreasonable.

3. The Tribunal could consider the supplementary letter as part of a moving decision-making target. The proper approach was flexible and pragmatic, provided the applicant had a fair opportunity to answer it. The practice should not, however, encourage deficient initial decisions.

4. The Secretary of State had wrongly treated the applicant’s history solely through domestic immigration control. EU rights of residence exist even when they have not been asserted or documented. The applicant had, for at least part of her residence, been the family member of an EEA national exercising Treaty rights. That historic position was a relevant legal consideration capable of materially affecting proportionality under Article 8.

5. The Secretary of State also failed adequately to assess family life. There was substantial evidence that the adult sons remained emotionally dependent on their mother while in education. Reliance on contact by telephone, internet, letters and visits was not sufficient without a lawful assessment of the strength of those ties, the limited capacity of the paternal grandparents, and the evidence of psychological difficulty. Educational achievement did not itself show that those difficulties were insignificant.

6. The applicant did not establish a derivative right under Zambrano v Office national de l’emploi, Case C-34/09, because her sons would not be compelled to leave the European Union if she left. The Tribunal nevertheless held that the unaddressed EU dimension and the inadequate family-life assessment independently rendered the Secretary of State’s decisions irrational.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial review was refused against the First-tier Tribunal’s refusal of an extension of time for a statutory appeal. Judicial review was granted against the Secretary of State’s decisions of 1 May 2013 and 11 March 2014, which were quashed.
• First-tier Tribunal: On 19 July 2013, Judge Kaler refused to extend time for the applicant to lodge a late statutory appeal.