Tribunal decisions

The decision

IAC-FH-LW-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/00597/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6 February 2017
On 22 February 2017

Before

UPPER TRIBUNAL JUDGE ALLEN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

EZINWANYI ULUNMA IKEJI
(anonymity direction not made)
Respondent

Representation:
For the Appellant: Mr S Whitwell, Senior Home Office Presenting Officer
For the Respondent: Mr M Al-Rashid of Carlton Law Chambers

DECISION AND REASONS
1. The Secretary of State (to whom I shall refer hereafter as the respondent, as she was before the First-tier Tribunal Judge) appeals with permission to the Upper Tribunal against the decision of the First-tier Tribunal allowing the appeal of Miss Ikeji (hereafter the appellant as she was before the First-tier Judge) against the respondent's refusal of her application for a derivative residence card as the extended family member (and married partner) of the sponsor Mr Ikeako.
2. It was common ground that the appellant and the sponsor are in a durable relationship. The application was refused however on the basis that although the relevant decision of the CJEU in Carpenter (C-060/00) determined that the spouse of an EEA national would derive a right of residence from a member state of an EEA origin and habitual residence card, it was concluded that as Carpenter did not refer to unmarried partners it did not apply to the circumstances of the appellant's application. The same point was made with regard to the authority of S and G (C-457/12).
3. The judge considered both the decision in Carpenter and then unreported decision of the Upper Tribunal in Cain (IA/40868/2013) which he found to be persuasive, and decided that the appellant was entitled to the benefit of the Carpenter decision. The appeal was allowed to the extent that the respondent's decision was not in accordance with the law and that she was to consider in the exercise of her discretion whether to issue a residence card to the appellant in accordance with Regulation 17(4) of the Regulations.
4. The Secretary of State sought and was granted permission to appeal on the basis that the judge had misinterpreted Carpenter and S and G in that they were concerned with family members of EEA nationals and not extended family members which was the position of the appellant. It was also argued that excessive weight had been attached to the decision in Cain. The point was also made by the judge granting permission that in light of the decision of the Upper Tribunal in Sala [2016] UKUT 411, an extended family member had no right of appeal against the decision to refuse a residence card.
5. Following a hearing before Judge Gill on 21 December 2016 both sides served skeleton arguments, and Mr Al-Rashid served a supplementary skeleton argument to respond to the issues described as "residual points" in Mr Whitwell's skeleton.
6. The first issue which must logically be considered at the outset is that of jurisdiction. In Sala the Upper Tribunal concluded that there was no statutory right of appeal against the decision of the Secretary of State not to grant a residence card to a person claiming to be an extended family member. I take that from the headnote, although as will be seen the arguments seek to delve a little deeper into what was actually concluded in Sala. In his first skeleton argument Mr Al-Rashid made five points but essentially the argument came down to three of them. That is because the first point that of the judge's entitlement to raise Sala and the third point, that Sala was not binding were effectively the subject of agreement. It was common ground therefore that the jurisdiction point could be taken, and also that a reported decision such as Sala is not binding.
7. The first point upon which Mr Al-Rashid relied was the argument that Sala was not applicable. This was on the basis that that was an application and decision under the 2006 Regulations which was not true of the instant case, which was simply not provided for in the Regulations. He pointed for example to paragraph 13 of Sala where it was said that the Tribunal was concerned exclusively with the right of appeal of an extended family member as defined in Regulation 8 of the EEA Regulations 2006. It was the EEA Regulations which differentiated between family members and extended family members. The concept of a derived right of residence was not a phrase introduced by the Regulation but was part of the EU rubric. He did not imply that the application was made under the Regulations. It was clear from the covering letter that the application was not made with reference to the Regulations or the directive, and he argued that Sala was not applicable.
8. Mr Whitwell argued on this point that the term "derivative" seemed to be being given a wider meaning than was intended, and it was clear that this was a Regulation 8 case in the sense that it was claimed that the appellant was a durable partner of the sponsor and that had been addressed in the refusal letter. It was necessary not to concentrate on the phraseology but on the reality of the situation. It was not necessary for the letter to be addressed in the Regulations. It was not a Carpenter case as the couple were not married.
9. I agree with Mr Whitwell on this point. In essence what is in issue in this case is the question of whether or not there is a right of appeal to an extended family member to the Tribunal under EU law. The fact that Sala was a case where the application was made under the Regulations does not alter the fact that there is a fundamental similarity between that case and this in that the application was for a residence card as an extended family member of an EEA national. In my view Sala was not concerned only with applications specifically made under the 2006 Regulations.
10. Mr Al-Rashid's next point was that Sala was distinguishable on the basis that in that case the actual relationship was in dispute and that the respondent had not accepted that the parties were in a durable relationship, whereas that was not true of the instant case. He made the point also that the respondent had asserted that the couple had satisfied Appendix FM GEN.1.2(iv) and that they were in a relationship akin to marriage and the relationship was genuine and subsisting and had lasted for at least two years, and the parties intended to live together permanently in the United Kingdom. That does not however equate to a finding under the Regulations. The durability of the relationship is not in question and that in my view is not a point of materiality in distinguishing this case from Sala. The essential point of Sala as set out at paragraph 84 of that decision is that the decision taken by the Secretary of State in the exercise of a discretion not to issue an extended family member with a residence card under Regulation 17(4) is not a decision under the EEA Regulations, as those are concerned with "a person's entitlement to be issued with ... a residence card". The point of distinction is that between a family member and an extended family member, and I think it is common ground that the appellant cannot claim to be a family member of the sponsor but only an extended family member. But that is essentially the point with which Sala was concerned. The durability of the relationship is not in doubt.
11. A further point relied on by Mr Al-Rashid is his argument that Sala is wrongly decided. He argued with reference to Regulation 17(4) and (5) that a person claiming to be an extended family member and who satisfies the national conditions is entitled to a residence card notwithstanding the fact that the process involves the exercise of discretion. He argued that the decision to use the discretion against an applicant was still an EEA decision attracting right of appeal. He also argued that this is consistent with the Citizen's Directive, noting that Union citizens and their family members are included in the definition in Article 3.2 of the directive. It must follow therefore, he argued, that there is a right of appeal under Article 31. He also argued that a remedy by way of judicial review is inadequate and that to grant a right of appeal to family members but not to extended family members breaches the EU principle of equivalence and effectiveness. To grant a right of appeal to one group and not to a similarly placed other group amounts to a breach of Article 47 of the charter and/or Articles 14 and 8 of the ECHR in that the discrimination was based on the status of the group and there was no objective justification for a difference of treatment between these groups.
12. Mr Whitwell argued that a right of appeal only arises where the decision concerns a situation in which once the qualifying criteria are satisfied the individual has an entitlement to a residence card, noting that the right of appeal arises under the Regulations only in relation to: "the decision under the Regulations that concerns ... a person's entitlement to be issued with a ... a residence card". As a consequence there is no entitlement to a residence card because the appellant does not have a right of residence in the United Kingdom. In addition he argued, in reliance on Rahman [2013] Imm AR 73, that a merits-based appeal was not required by the directive and judicial review to ensure the decision makers remained within the limits of the discretion set by the directive was sufficient. He also argued that the directive differentiates between the position of family members on the one hand and those falling outside that group and that therefore there was no unlawful discrimination or incompatibility with the charter.
13. I agree with the submissions of Mr Whitwell in this regard. I find the reasoning in Sala to be compelling. A proper distinction was drawn between family members and extended family members bearing in mind that there is a difference between a person's entitlement to be issued with a residence card and person who does not fall within that provision. I agree with the conclusion in Sala therefore and consider that its reasoning is entirely applicable to the situation before me. It follows that there is no right of appeal. A right to challenge the decision by way of judicial review is, as is clear from Rahman, a perfectly viable alternative remedy. As a consequence the First-tier Tribunal was without jurisdiction to hear the appeal in this case.
14. In the circumstances I do not think it appropriate to go on and consider what the position would be were there to be jurisdiction in light of my above decision.
15. The disposition of this appeal is that there is no appeal before the Tribunal.

Signed Date

Upper Tribunal Judge Allen