Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: ea/00743/2016
ea/00744/2016

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 5 April 2017
On 21 April 2017

Before

DEPUTY UPPER TRIBUNA L JUDGE D N HARRIS

Between

mr f T s (a minor) (1)
mr g A s (a minor) (2)
(ANONYMITY DIRECTION made)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr F T S (Senior) – Non-Legal Representative
For the Respondent: Mr G Harrison, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellants are minor citizens of Ghana born respectively on 17th December 2006 and 15th December 1999. The Appellants had made application for an EEA family permit to join A L in the United Kingdom respectively on the basis that in the case of the first Appellant A L was married to her uncle and on behalf of the second Appellant that A L was his claimed sister-in-law. Those applications are dated 4th January 2016. They were refused by the Secretary of State who noted that both claims sought to rely on their being extended family members of A L in the first instance and that in the instance of the second Appellant he had been legally adopted by M O and that the Entry Clearance Officer noted that the second Appellant had failed to provide satisfactory evidence to indicate that M O was related to F T S Senior as claimed.
2. It is important to note that renewed Notice of Refusals were issued on 11th February 2016. Application was again made thereunder for a family permit and was considered under Regulation 7 and 8 respectively of the Immigration (European Economic Area) Regulations 2006. Within that it was noted that M O was an EEA family member dependent upon A L and the Secretary of State noted that M O’s EEA retained rights were not transferable to A L and as such she is unable to act as an EEA Sponsor.
3. An appeal was lodged against the Notice of Refusals. The appeals came before Judge of the First-tier Tribunal Heynes sitting at Manchester on 10th August 2016. Judge Heynes in a decision promulgated on 19th August 2016 concluded that the clearly expressed intention of the Entry Clearance Officer was that the first decisions i.e. those of 4th January 2016 had been withdrawn and replaced by decisions dated 11th February 2016. As there was no appeal against the decision dated 11th February 2016 the judge concluded he had no jurisdiction to determine the appeals and that there was no appeal extant before him in respect of the decisions of 11th February 2016.
4. On 23rd August 2016 Grounds of Appeal were lodged to the Upper Tribunal. Permission to the Upper Tribunal was refused by Judge of the First-tier Tribunal Bennett. Judge Bennett noted:
“It is not necessary for me to consider the voluminous Grounds of Appeal which run to fifteen pages, because of the Upper Tribunal’s subsequent decision in Sala [2016] UKUT 411 which establishes that there is no statutory right of appeal against a decision of the Secretary of State not to grant a residence card to a person claiming to be an extended family member. Although Sala was concerned with residence cards and not with family permits it is not arguable that Sala is distinguishable because Sala turned on the question of whether an extended family member had an entitlement to a residence card which, on the wording on the Regulation, applied equally to family permits.”
Very extensive Grounds of Appeal were lodged by Mr F T S Senior on 20th October 2016 to the Upper Tribunal. On 14th November 2016 Upper Tribunal Judge Kopieczek granted permission to appeal. Judge Kopieczek’s grant of permission is of importance. He stated that whilst it appeared that there had been no appeals lodged against 11th February 2016 decisions it was not clear that there was no appeal outstanding for the Tribunal in relation to 4th January 2016 decisions and that the First-tier Tribunal Judge did not appear to have given due consideration to Rule 17(2) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. He noted that whilst the withdrawal of a Respondent’s decision must (save for good reason) result in the Tribunal treating the appeal as withdrawn, it was not apparent that the formalities required by Rule 17(2) were complied with by the Respondent.
5. He further noted that although there was on the face of it good reason to consider that the decision in Sala applied in the circumstances of these appeals and that the Appellants therefore did not have a right of appeal to the First-tier Tribunal it was a matter that required further consideration in the context of these appeals.
6. On 30th November 2016 the Secretary of State responded to the Grounds of Appeal under Rule 24. I quote directly from that Rule 24 response because ultimately that appears to me to encompass the whole nub of the issue before me: “’It will be submitted that any error that is alleged to have appeared in the making of the First-tier Tribunal Judge’s determination is irrelevant and immaterial due to the recent promulgation of Sala [2016] UKUT 411.”
7. It is on that basis that the appeal comes before me to determine whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. The Appellants appear by their McKenzie friend Mr F T S Senior. Mr F T S Senior has produced an extensive skeleton argument specifically for this appeal. In addition he refers to the skeleton arguments that he raised before the First-tier Tribunal Judge and to the Grounds of Appeal. I have given due consideration to all these documents. The Respondent appears by her Home Office Presenting Officer Mr Harrison.
8. As a preliminary issue I am referred to a written request by Mr F T S Senior that due to the ages of the Appellants this matter be anonymised. Mr Harrison on behalf of the Secretary of State does not raise objection. In such circumstances I make an anonymity direction.
The Issue
9. I explained fully to Mr F T S Senior the issue in this matter was whether or nor there was a material error of law in the decision of the First-tier Tribunal Judge. I explained to him thoroughly that I was not rehearing this matter and I allowed him to make his submissions based very largely on his skeleton argument and his subsequent developed oral testimony thereafter.
The Law
10. Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
11. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge’s factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge’s assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration Judge concludes that the story is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
Findings on Error of Law
12. This appeal originated on the basis that the judge had erred in the manner in which he had addressed the position that came before him in the First-tier Tribunal and that he erred in finding that the Secretary of State had withdrawn the appeal. The relevant paragraph is Rule 17(2) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 which states:
“The Tribunal must (save for good reason) treat an appeal as withdrawn if the Respondent notifies the Tribunal and each other party at the decision (or, where the appeal relates to more than one decision, all of the decisions) to which the appeal relates has been withdrawn and specifies the reasons for the withdrawal of the decision.”
Judge Heynes took the view, as set out at paragraph 12, that the accompanying email sent to the McKenzie friend that “you can either make a further application addressing the concerns raised or you may exercise your right of appeal as set out in the notice” reflected a clear expressed intention of the Entry Clearance Officer that the first decisions had been withdrawn and were superseded by the second.
13. What appears to have happened is that there were further decisions of the Entry Clearance Officer made on 11th February 2016 and that they are made in slightly different terms to those from 4th January. It is further clear that it is only the decisions of 4th January 2016 that were appealed. What is important is whether or not the failure in that process constituted a material error of law. I am satisfied that even if there were to have been an error of law (and it has not been shown to my satisfaction in any event that there was) that it is not material to the outcome of this appeal. The reason for that is that this case, despite the submissions made by Mr F T S, is covered by the decision of the Vice President of the Upper Tribunal in the decision in Sala. That case is good authority for stating that there is no jurisdiction for the hearing of an appeal under the EEA Regulations when the basis of that appeal seeks to provide for protection under the EEA Regulations by an extended family member. I fully acknowledge that that authority related to the provision of residence cards and not family permits but that is not the issue. The case relates to appeals by extended family members and that is exactly what this appeal is about.
14. I further note Mr F T S’s comment that that decision is a decision of the Upper Tribunal and therefore not binding upon another Upper Tribunal Judge. I am not persuaded that such an argument, particularly bearing in mind the issues involved, are ones that find favour with me for setting aside or even distinguishing the decision of the Vice President. His decision remains good law until, or unless, it is overturned by the Court of Appeal.
15. The nub of Mr F T S’s submission is that Sala is bad law and should not be followed. He sets that out at paragraph 7 of his skeleton and for reasons given I dismiss that. He further specifically seeks to rely on the decision in Oyekan v Secretary of State for the Home Department [2016] EWCA Civ 1352. That case, as he states, was an out of country right of appeal judicial review. I do not consider that that case adds anything to the position of the Appellants. As stated previously and is the key here is that the decision in Sala relates to the rights of appeal of extended family members, it is not addressing any distinction between resident’s cards and family permits nor is it addressing the position for judicial review.
16. Consequently even if there were a material error of law and the procedural analysis carried out by the withdrawal pursuant to Rule 17(2) of the 2014 Regulations and that the First-tier Tribunal Judge misapplied that Regulation then even if he has done so it is not material because as a result of Sala there is no jurisdiction for the Appellants’ appeal to be heard in any event.
17. In such circumstances I find there is no material error of law in the decision of the First-tier Tribunal Judge and the Appellants’ appeal is dismissed and the decision of the First-tier Tribunal Judge is maintained.

Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 18th April 2017

Deputy Upper Tribunal Judge D N Harris
TO THE RESPONDENT
FEE AWARD

No application is made for a fee award and none is made.

Signed Date 18th April 2017

Deputy Upper Tribunal Judge D N Harris