Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/01715/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 25 January 2017
On 19 April 2017

Before

UPPER TRIBUNAL JUDGE CANAVAN

Between

ANGELA ONYINYECHI NNADO
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the appellant: No appearance
For the respondent: Ms Z. Ahmed

DECISION AND REASONS

1. The appellant appealed against the respondent’s decision to refuse to issue a residence card recognising a right of permanent residence under European law.

2. First-tier Tribunal Judge Hands dismissed the appeal in a decision promulgated on 07 April 2016. The respondent accepted that the appellant was in a durable relationship with the EEA national sponsor from July 2008 until April 2010 and from October 2013 onwards but was not satisfied that they were in a durable relationship in the intervening period from April 2010 to October 2013 [10]. Although the appellant and her partner failed to produce witness statements to explain the course of events, the judge accepted that there was documentary evidence to show that they continued to be in a relationship with one another during the period from 2010 to 2013 even though there was a period where the evidence showed that they were not living at the same address [11-16]. The judge went on to note that the appellant had to show that she had “resided in the United Kingdom with the EEA national in accordance with these regulations” for a continuous period of five years to establish a right of permanent residence. At [17] the judge concluded:

“The onus is upon the Appellant to establish, on a balance of probabilities that she is entitled to have a permanent residence card issued to her. The Appellant has established her relationship with her EEA sponsor subsists and is genuine as at the date of the application and the decision as well as the date of my consideration of her appeal. She has also provided sufficient satisfactory evidence to establish that her partner has been exercising treaty rights in the United Kingdom for a continuous period of more than five years and he is, in fact, naturalised and been granted British citizenship. A balance of probabilities is described as being more likely than not. The documentation provided gives different addresses for the Appellant and her sponsor over the period from April 2010 to October 2013 and because of this I am not satisfied that the Appellant has resided continuously with her EEA partner for a period of five years as required by Regulation 15(1)(b). The Appellant’s period of continuous residence would commence again when she went to live with her husband in Wooldridge Close in October 2013.”

3. The appellant appeals against the First-tier Tribunal decision on the following grounds:

(i) The judge erred in requiring the appellant to co-habit with the EEA national to establish that she continued to be in durable relationship and therefore resided in accordance with the regulations for a continuous period of five years: YB (EEA regulation 17(4) – proper approach) Ivory Coast [2008] UKAIT 00062 and PM (EEA – spouse – “residing with”) Turkey [2011] UKUT 89 referred.

(ii) In the alternative, the judge erred in failing to consider whether the appellant continued to meet the requirements for a residence card as an extended family member under regulation 8 of The Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations 2006").

4. The original appeal was decided on the papers. There was no appearance by or on behalf of the appellant at the hearing before the Upper Tribunal. I was satisfied that the appellant was sent notice of the hearing date to the last known address recorded by the Tribunal. In a letter dated 16 January 2017 the appellant’s representatives, ROCK Solicitors, stated that she relied on the grounds and papers already submitted. It seemed clear from this correspondence that the appellant did not intend to attend the hearing. As such, I was satisfied that I could proceed to determine the appeal in the absence of the appellant.

Decision and reasons

Jurisdiction

5. The Upper Tribunal decision in Sala (EFMs: Right of Appeal) [2016] UKUT 00411 was reported after the First-tier Tribunal decision in this appeal. In that case the Tribunal concluded that there is no right of appeal against a decision to refuse to issue a residence card recognising a right of residence as an ‘extended family member’ under regulation 8 of the EEA Regulations 2006. The Tribunal considered the distinction between ‘family members’ and ‘extended family members’ within the context of the Citizenship Directive (2004/38/EC) and the EEA Regulations 2006 [17-23]. The Tribunal noted that the terms of regulation 17 of the EEA Regulations 2006 required a residence card to be issued to a ‘family member’, but in contrast, regulation 17(4) made clear that issue of a residence card to an ‘extended family member’ is discretionary [45]. The Tribunal concluded that a decision to refuse to issue a residence card recognising a right of residence as an ‘extended family member’ was not an ‘EEA decision’ giving rise to a right of appeal as defined in regulation 2(1) because a person did not have an “entitlement to be issued with or have renewed” a residence card as an ‘extended family member’. In circumstances where there is no ‘entitlement’ to be issued a residence card there was no ‘EEA decision’ and consequently no right of appeal [46-48].

6. The Tribunal accepted that a third country national who has been issued with a residence card as an ‘extended family member’ would, through the operation of regulation 7(3), be treated as a ‘family member’ for as long as he or she continues to satisfy the conditions in regulation 8. The panel acknowledged that such a person would, on the face of it, fall within the terms of regulations 26(1) and (3), which gives rise to a right of appeal against an ‘EEA decision’ relating to rights of residence as a ‘family member’. However, the Tribunal noted that regulation 26(2A) “may well” apply to any appeal against a decision under the EEA Regulations 2006 where the basis of the individual’s claim is that he or she is in a ‘durable relationship’ with an EEA national, “including a refusal to renew the card” [79]. The Tribunal concluded that the insertion of regulation 26(2A) in 2012, stating that a person who claims to be in a durable relationship “may not appeal” unless certain circumstances are satisfied, was not an aid to the construction of the regulations as originally enacted [83].

7. Ms Ahmed argued that there was no valid appeal before the Tribunal following the decision in Sala. She relied on the Tribunal’s findings in paragraphs 79 and 83 of the decision.

8. However, I find that the decision to refuse to issue a residence card recognising a permanent right of residence does give rise to a right of appeal for the following reasons:

(i) The appellant was issued with a residence card as an extended family member on 27 February 2009. She applied for a residence card recognising a permanent right of residence prior to the expiry of the residence card on 27 February 2014, but the application was refused and the subsequent appeal dismissed. On 07 July 2015 the appellant made a further application for a permanent residence card.

(ii) The respondent’s decision dated 21 January 2016 related solely to whether the appellant satisfied the requirements for permanent residence set out in regulation 15 of the EEA Regulations 2006. The respondent found that the appellant failed to show that she was in a durable relationship for a continuous period of five years, and was therefore a ‘family member’ for the purpose of regulation 7(3) throughout that period, because there was a lack of evidence relating to co-habitation from April 2010 until October 2013.

(iii) Even though the respondent accepted that the appellant was in a durable relationship with an EEA national at the date of the decision, no consideration was given to whether it was appropriate to exercise discretion under regulation 17(4) to issue a residence card as an ‘extended family member’ under regulation 8.

(iv) The only decision made by the respondent was a decision to refuse to issue a residence card recognising a right of permanent residence.

(v) The definition of an ‘EEA decision’ contained in regulation 2(1) makes clear that a decision that concerns “a person’s entitlement to be issued with [a]… document certifying permanent residence or permanent residence card” is an ‘EEA decision’, which gives rise to a right of appeal under regulation 26(1).

(vi) The rationale of the decision in Sala is that a decision to issue a residence card recognising a right of residence as an ‘extended family member’ under regulation 8 is discretionary and therefore does not give rise to an ‘entitlement’ to a residence card thereby coming within the definition of an ‘EEA decision’ under regulation 2(1).

(vii) The panel in Sala found that the later insertion of regulation 26(2A) did not affect the interpretation of the original provisions contained in regulation 2(1) in respect of a decision concerning the issue of a residence card to an ‘extended family member’ coming within the terms of regulation 17(4).

(viii) However, this is not such a decision. Where a decision has been made concerning a person’s entitlement to a permanent residence card the definition contained in regulation 2(1) is clear.

(ix) To satisfy the requirements of regulation 15 the appellant would have to show that she was in a durable relationship, and was therefore a ‘family member’ by operation of regulation 7(3), for a continuous period of five years. The Tribunal in Sala considered the possible impact of regulation 7(3), but it seems that this was only in relation to decisions to refuse to renew a residence card as an ‘extended family member’ [77-79]. However, no specific reference was made to applications for permanent residence and no consideration was given to the wording of regulation 2(1) in that context, which clearly defines an ‘EEA decision’ to include a decision to refuse to issue a permanent residence card.

(x) The wording of regulation 17(4), which was relied upon to underpin the reasoning in Sala, makes clear that discretion only applies to decisions relating to “extended family members not falling within regulation 7(3)” [my emphasis].

(xi) In a case where an extended family member applies for a permanent residence card the person could only qualify if they are to be treated as a ‘family member’ within the meaning of regulation 7(3). In this case the appellant was issued with a residence card on 27 February 2009, which was valid for a period of five years. If the appellant continued to be in a durable relationship throughout that period she would be treated as a ‘family member’ under regulation 7(3). This would appear to be the only way in which an ‘extended family member’ could acquire a permanent right of residence.

(xii) For the reasons given above I conclude that the combined effect of the definition contained in regulation 2(1) and the exclusion of ‘family members’ falling within regulation 7(3) from the discretionary scheme that would otherwise apply to ‘extended family members’ gives rise to a right of appeal against a decision concerning a person’s entitlement to be issued with a permanent residence card.

Error of law

9. In PM (Turkey) the Tribunal made clear that the requirement contained in regulation 15 for the family member to be “residing with” the EEA national did not require co-habitation but referred to presence in the UK. The Tribunal in YB (EEA Reg 17(4) – proper approach) Ivory Coast [2008] UKAIT 00062 recognised that, whilst comparisons with the UK immigration rules might provide some guide to interpretation of regulation 8(5), it is not a requirement to meet the same provisions for a relationship to be recognised as “durable” for the purpose of the EEA Regulations 2006 and the Citizens’ Directive. Whether a relationship can be described as “durable” will depend on the facts and evidence in each case.

10. I am satisfied that the first ground of appeal discloses an error of law in the First-tier Tribunal decision. Ms Ahmed accepted that reliance on co-habitation would amount to an error of law. The judge was satisfied that there was evidence to show that the appellant and her partner continued to be in a durable relationship with one another during the period questioned by the Secretary of State. However, in requiring continuous co-habitation the judge incorrectly interpreted the requirement contained in regulation 15 for a family member to have “resided in the United Kingdom with the EEA national”. If she was satisfied, as she appeared to be, that the appellant continued to be in a durable relationship with the EEA sponsor throughout the five- year period that she was issued with a residence card, it follows that the appellant was a ‘family member’ for a continuous period of five years.

11. Although the current application was made after the original residence card expired, a permanent residence card recognises, but does not grant, a right of residence. I am satisfied that the First-tier Tribunal’s findings of fact show that the appellant is likely to have acquired a right of permanent residence by the time the residence card expired on 27 February 2014 because she was a ‘family member’ who had resided in the United Kingdom with the EEA national in accordance with the regulations for a continuous period of five years.

12. I conclude that the First-tier Tribunal decision involved the making of an error on a point of law. The decision is set aside and remade. The decision is not in accordance with the EEA Regulations 2006 because the appellant met the requirements of regulation 15(1)(b) of the EEA Regulations 2006.

DECISION

The First-tier Tribunal decision involved the making of an error on a point of law

The decision is remade and the appeal ALLOWED under the EEA Regulations 2006

Signed Date 13 April 2017
Upper Tribunal Judge Canavan