EA/00800/2022

• Status of case: Unreported
• Hearing date: 5 Dec 2022
• Promulgation date: 18 Apr 2023
• Publication date: 3 May 2023
• Last updated on: 3 May 2023

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Ce-File Number: UI-2022-003559
First-tier Tribunal No: EA/00800/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 18 April 2023

Before

UPPER TRIBUNAL JUDGE PERKINS

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

RAFIK LAHDIRI
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Ms J Isherwood, Senior Home Office Presenting Officer
For the Respondent: Mr M Bhebhe, Legal Representative instructed by Njomane Immigration Law Practice

Heard at Field House on 5 December 2022
DECISION AND REASONS
(extempore)
1. This is an appeal by the Secretary of State against a decision of the First-tier Tribunal allowing the appeal of the respondent, herein after “the claimant”, against a decision of the Secretary of State refusing an EEA residence permit. Mr Bhebhe who appeared below and before me had produced a Rule 24 notice which, for some reason, had not found its way to Ms Isherwood but she was able to consider it in the hearing room before addressing me.
2. The Secretary of State maintains that following the decision in Celik (EU exit; marriage; human rights) [2022] UKUT 00220 (IAC) it is now clear that the appeal brought by the claimant simply could not succeed.
3. It could not succeed because the claimant was not being “facilitated” within the meaning of the Rules and consequently did not have the necessary residence card. This is at the very core of the decision in Celik and I find completely answers the facts of this case.
4. Mr Bhebhe did not address me at length but I do record that he did not accept that Celik was decided correctly. He has a point that relates to procedures that had not come to Ms Isherwood’s attention but they do not address the core issue of the need to be facilitated and I am satisfied that, as far as I understand Celik, which I certainly intend to follow, facilitation is fundamental and if there is no facilitation proportionality simply has nothing to bite upon and the appeal had to be dismissed.
5. Unless the applicant is “facilitated” the timing of the application is not important.
6. No doubt the First-tier Tribunal no doubt would not have made the decision that it did if it had the benefit of the learning that came after the decision was promulgated.
7. I set aside the decision of the First-tier Tribunal for error of law, and having noted Mr Bhebhe’s argument that Celik is wrongly decided as a matter of public record, I substitute a decision dismissing the appeal against the Secretary of State’s refusal.
Notice of Decision
8. The First-tier Tribunal erred in law. I set aside its decision and I substitute a decision dismissing the claimant’s appeal against the First-tier Tribunal’s decision.


Jonathan Perkins
Signed

Jonathan Perkins

Judge of the Upper Tribunal
Dated 13 January 2023