MM v The Secretary of State for the Home Department

1. This appeal concerns whether EU law requires the definition of “qualifying child” in section 117 D(1) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) to be applied as though it extends to children who are EU citizens, even if the child has not lived in the United Kingdom for a continuous period of seven years or more.

2. The appellant is a citizen of Iran, born in March 1998. He appeals against a decision of First-tier Tribunal Judge Fox promulgated on 30 October 2019 dismissing his appeal against a decision of the respondent dated 18 July 2019 to refuse his asylum and human rights claim. Judge Fox dismissed the protection element of the appeal, finding that the claim had been fabricated. T here is no challenge to that finding . The focus of this appeal is the Article 8 limb of the judge’s decision.

3. The appellant has a three year old Polish daughter with whom he is in a genuine and subsisting relationship. He submits that the judge’s assessment of her best interests was flawed. He also contends that if his EU citizen daughter were British, she would engage section 117 B(6) of the 2002 Act . The public interest would not require the appellant’s removal if it would not be reasonable to expect the child to leave the United Kingdom. However, as the child is Polish and does not otherwise satisfy the “qualifying child” criteria, section 117 B(6) is of no application to the appellant. The central issue is whether that is nationality discrimination contrary to EU law. Factual background

4. The judge accepted that the appellant enjoyed family life for the purposes of Article 8 of the European Convention on Human Rights (“ECHR”) with his Polish partner and their daughter. The appellant and his partner ’s relationship began in 2015. They are not married but live together. Their daughter was born in October 2016 .

5. The judge addressed the best interests of the daughter in these terms, at [116]: “I now consider Article 8 in conjunction with section 55 [of the Borders, Citizenship and Immigration Act 1999]; Zoumbas [ [2013] UKSC 74 ] applied. There is no dispute that family life exist [ sic ] between the appellant, partner and child. However, for the reasons stated above it is reasonable to conclude that the partner has conspired with the appellant to pursue an unmeritorious and opportunistic asylum claim.”

6. The judge found that the appellant and his partner had always known that the appellant’s immigration status was precarious, and that separation was a possibility [117]. Pursuant to section 117 B of the 2002 Act , their family life attracted little weight , the judge said . There was no suggestion that the child would be required to leave the United Kingdom if the appellant were removed : see [118] .

7. The judge found that the appellant “cannot satisfy the respondent’s definition of Article 8 ECHR”. There would be no “insurmountable obstacles” [ sic ] to the appellant’s removal to Iran [121]. There were no exceptional circumstances such that the appellant’s removal would be unjustifiably harsh.

8. T he judge considered that he did not enjoy the jurisdiction to consider whether the appellant could succeed on any other basis under the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”) . That would have been a “new matter” for which the respondent had not provided her consent ( [125] ) . The judge made findings on the point in any event. There was no “reliable” evidence to demonstrate whether the appellant’s partner’s claimed part-time employment at Pizza Hut was genuine and effective or marginal and ancillary: see [126].

9. Permission to appeal was granted by Upper Tribunal Judge Mandalia on the basis that the judge erred in assessing Article 8 in the context of the best interests of the partner’s child . Submissions

10. First, the grounds contend that the judge erred by holding against the child the misconduct of the appellant and his partner, the child’s mother .

11. Secondly, the grounds contend that the judge was wrong not to treat the child as a “qualifying child” for the purposes of section 117 D(1) of the 2002 Act . This is because Parliament’s exclusion of the appellant’s daughter from the definition of “qualifying child” was nationality-based discrimination in breach of Article 18 of the Treaty on the Functioning of the European Union (“TFEU”) . Further, it would not be reasonable to expect the child to leave the United Kingdom.

12. Mr Bajha focused primarily on his second ground of appeal, relying upon Nouazli v Secretary of State for the Home Department [2016] UKSC 16 at [51]. He submits that nationality-based discrimination is only permitted where it can be justified objectively, on public policy grounds, relying on Nicolas Bressol and Others and Céline Chaverot and Others v Gouvernement de la Communauté française Case C-73/08 . T here is no legitimate public interest to justify the difference in treatment between British citizen children under section 117 D(1) and EU citizen children, he submits. Accordingly , the judge failed properly to deal with the application and import of section 117 B(6) , as he was required by EU law to do . Mr Bajha accepts that this was not a point raised before the judge below, but submits that it was “ Robinson obvious”, and should have been considered by the judge of his own motion .

13. Mr Bramble submitted that the appellant had not applied to have his position as the father of an EEA national child determined under the 2016 Regulations . In any event, he submitted, the child had not started education, was under three at the time; there was no suggestion that her best interests were such as to override the cumulative force of the reasons in favour of removing the appellant. The law

14. Article 18 of TFEU provides, where relevant: “Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.”

15. Article 24(1) of Directive 2004/38/EC of the European Parliament and of the Council dated 29 April 2004, on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States provides: “ Subject to such specific provisions as are expressly provided for in the Treaty and secondary law, all Union citizens residing on the basis of this Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty. The benefit of this right shall be extended to family members who are not nationals of a Member State and who have the right of residence or permanent residence. ”

16. Section 117B(6) of the 2002 Act provides: “(6) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where— (a) the person has a genuine and subsisting parental relationship with a qualifying child, and (b) it would not be reasonable to expect the child to leave the United Kingdom.”

17. The term “qualifying child” is defined in section 117 D(1) in these terms: “‘qualifying child’ means a person who is under the age of 18 and who – (a) is a British citizen, or (b) has lived in the United Kingdom for a continuous period of seven years or more…”