Tribunal decisions

The decision

IAC-AH-dh-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/02125/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 13th October 2016
On 9 December 2016

Before

UPPER TRIBUNAL JUDGE REEDS

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

adedayo ganiyat salami-akintola
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr C Bates, Senior Home Office Presenting Officer
For the Respondent: Mrs Salami-Akintola in person

DECISION AND REASONS
1. The Secretary of State appeals with permission against the decision of the First-tier Tribunal (Judge Barrowclough) who, in a determination promulgated on 15th February 2016, allowed the appeal of Mrs Salami-Akintola against the decision of the Secretary of State to refuse her application for a permanent residence card as a confirmation of her right to reside in the United Kingdom under the Immigration (EEA) Regulations 2006.
2. Whilst this is the Secretary of State's appeal, for sake of ease of reference I intend to refer to the parties as they were before the First-tier Tribunal. Mrs Salami-Akintola was not legally represented but appeared before the Tribunal along with her spouse. For the purposes of the proceedings, I ensured that I explained the procedure and gave her the opportunity to ask any questions arising from that. In addition, she had provided a response to the Grounds of Appeal and permission that had been granted, in a Rule 24 response dated 20th August 2016 but received by the Tribunal on 1st September 2016. In that written document she sat out her reasons as to why the First-tier Tribunal Judge did not make an error on a point of law.
3. There is no dispute as to the factual background to this appeal. The Appellant's Sponsor, Mr Akintola is an EEA national namely he is a citizen of Austria. The parties have been in a relationship and living as man and wife at least since April 2009. The history demonstrates that on 9th September 2009 the Appellant was issued with a UK residence permit as a Tier 1 (General) Migrant which was valid until 9th September 2012. On the findings of the First-tier Tribunal Judge at paragraph 5, he found that on the evidence before him the Appellant and her spouse had been living together as man and wife at the same address since April 2009. In November 2010 the Appellant and Mr Akintola married in an Islamic ceremony and in 2011 they had a child together.
4. In August 2011 the Appellant made an application for a residence card as a family member of an EEA national. On 18th November 2011 this application was refused for the reasons set out at paragraph 2 of the determination of First-tier Tribunal Judge Holmes (decision promulgated on 21st February 2012). In essence, the Secretary of State considered that the Appellant had failed to show that she was in a durable relationship. Having considered the evidence of cohabitation the Secretary of State did not accept that they had demonstrated that they were in a durable relationship. Whilst they had been married in 2010 in an Islamic ceremony it was not accepted that this was a valid marriage.
5. On 14th February 2012 the appeal came before the First-tier Tribunal (Judge Holmes). In a determination promulgated on 21st February 2012 the judge set out his findings. At paragraph 10 he referred to the Appellant's evidence which only referred to the Islamic marriage and had objected to the fact that the Secretary of State had treated her as being in an unmarried relationship. As the judge stated, it is not disputed that they had entered into an Islamic marriage in 2010 but this was a marriage that had not been registered and thus at [12] the judge found that the parties were not validly married and therefore the Secretary of State correctly considered the application as an unmarried partner or an extended family member.
6. At paragraph [15] the judge was satisfied that her partner was an EEA national as he was a citizen of Austria who had been issued with a registration certificate in December 2006. He was also satisfied on the documentation that he was a "qualified person" and therefore exercising treaty rights.
7. At [16] the judge made a finding that they had been living together before 4th February 2010 and therefore found that they were in a durable relationship. The judge went on to consider Regulation 17(4) of the 2006 Regulations and the issue of discretion. Therefore he allowed the appeal to the limited extent that the decision of 18th November 2011 was not in accordance with the law and therefore the application was outstanding as to whether or not the Appellant was an extended family member and as a matter of discretion should be granted a residence card.
8. On 31st May 2012 following the successful appeal and in the light of those findings made by the First-tier Tribunal, the appellant was issued with an EEA residence card as an unmarried partner of her spouse. Following this her daughter was born in 2013 and on 21st November 2014 the parties married in a civil ceremony.
9. On 26th May 2015 the Appellant made an application for a permanent residence card as confirmation of a right to reside in the UK as a family member.
10. The application was refused by the Secretary of State on 21st October 2015. In the notice of immigration decision entitled "refusal to issue a permanent residence card under Regulation 15(1)(b) the Secretary of State set out the reasons for refusing. Namely that she had applied for permanent residence on the basis of being a family member of an EEA national and that she had resided in the UK in accordance with the Regulations for a continuous period of five years. The decision letter went on to state "however you have not provided evidence that the EEA national resided in the UK in accordance with the EEA Regulations for a continuous period of five years."
11. However in the reasons for refusal letter different reasons were given. They are as follows. The Secretary of State applied Regulation 15(1)(b) as a family member who is not an EEA national but has resided in the UK with the EEA national in accordance with the Regulations for a continuous period of five years shall acquire the right to reside in the UK permanently. The decision set out the factual circumstances of the Islamic marriage in 2010, the issuing of a residence card as an unmarried partner on 31st May 2012 and that they were married in a civil ceremony in 2014. The refusal letter acknowledged her relationship with her spouse and that it had existed prior to the issue of the EEA residence card on 31st May 2012. However it went on to state that under the Regulations, the "Appellant is not classed as a family member until the relationship is formally recognised. The earliest she could complete the qualifying period is five years from the date of issue of the residence card and therefore by 31st May 2017."
12. On 21st October 2015 Mr Akintola was granted a permanent residence card.
13. The Appellant appealed that decision and it came before Judge Barrowclough on the papers on 1st February 2016. The parties did not attend before the judge.
14. In a determination promulgated on 15th February 2016 the judge made the following findings. First of all he found that Mr Akintola was an EEA national who had been granted a permanent residence card on 21st October 2015. The judge found that there was a difference in the reasons given in the notice of immigration decision from that of the refusal letter at [3] and found that the reasons given in the refusal letter were those relied upon by the Respondent. At paragraph [5] the judge found that they had been living together since April 2009 and the conclusions reached at paragraph 8 were as follows:-
"8. The Respondent's refusal and objections rest on the fact that it was only on 31st May 2012 that the Appellant was issued with a residence card as the unmarried partner of Mr Akintola, her Sponsor. That seems to me to a somewhat arbitrary approach, in that it ignores and does not engage with at all with the significant volume of evidence produced both in support of the application and the appeal which proves that the Appellant and Mr Akintola have lived together essentially as husband and wife from about April 2009 onwards, including getting married, at least in the eyes of their religion, in November 2012, and having a child born in February the following year. Put another way, the Respondent recognised and accepted in May 2012 that the Appellant is the partner of Mr Akintola, an EEA national and that that is sufficient to entitle her to a residence card after the passage of sufficient time; and I am satisfied that the Appellant has proved beyond doubt that their relationship had been subsisting for the requisite period of at least five years as at the date of the application in May 2015. On any objective review of the evidence, it seems to me that the Appellant has indeed established that at the date of her application (26th May 2010) she had been living with Mr Akintola in the capacity of a family member for a continuous period for at least five years; and that the Respondent's decision to refuse that application in reliance on Regulation 15(1)(b) of the 2006 Regulations was misconceived and wrong. Accordingly, the appeal is allowed and she is lawfully entitled to a permanent residence card as a confirmation of her right to reside in the United Kingdom."
15. Thus the appeal was allowed under Regulation 26 of the EEA Regulations 2006.
16. The Secretary of State sought permission to appeal that decision and on 18th July 2016 permission was granted by First-tier Tribunal Judge Simpson for the following reasons:-
"The Respondent submits that the judge:
(a) made a material misdirection in law in allowing the appeal under Regulation 15(1)(b) of the 2006 EEA Regulations as the Appellant had not demonstrated that she had resided with the EEA national 'in accordance with these Regulations for a continuous period of five years';
(b) the Appellant is an extended family member under Regulation 8(5) of the 2006 Regulations and her right of residence is at the discretion of the Secretary of State. As a result, her right of residence is not recognised until issued with a residence card under Regulation 17(4) (see Ihemedu (OFMs - meaning) Nigeria [2011] UKUT 00340). As the Appellant was issued with that residence card on 31st May 2012, she has only been residing in the United Kingdom in accordance with these Regulations upon that date;
(c) consequently the Appellant has not yet attained the requisite five years' residence in line with the Regulations and will not do so until 31st May 2007 at the earliest.
It is arguable that the judge has erred in his interpretation of Regulation 15(1)(b)."
17. At the hearing Mr Bates relied upon those grounds and the grant of permission by Judge Simpson. He submitted that when she had originally applied for a residence card up until that point she was only asking the Secretary of State to consider them as an extended family member because they were not married. That was upheld by the decision of Judge Holmes who, whilst he found that she was in a durable relationship with Mr Akintola, the Secretary of State had not exercised discretion. As a result of those findings of fact the Appellant was issued with a residence card under Regulation 17(4) on 31st May 2012. It is at that time she became recognised as a family member and therefore the time started from that date irrespective of the length of time that they had been living together prior to that date.
18. Thus he submitted that whilst the judge had found that they had been living together and had had a civil ceremony since April 2009 they had not been in a marriage that was valid or recognised as such. The judge in essence by accepting the relationship as going back to 2009 was retrospectively considering the exercise of discretion.
19. Thus he submitted that the decision of the judge was in error and that there was no dispute that she is a family member and that the residence card is in force as the decision letter sets out until May 2017 and that in those circumstances there is no removal or any Article 8 grounds that can be advanced. He submitted that she would be able to apply before the end of the period in May 2017.
20. Ms Akintola relied upon her Rule 24 response. She submitted that she had applied for a permanent residence card as a family member of an EEA national exercising treaty rights for more than five years. She said the first application was made in 2011 after living together as husband and wife for more than two years as part of the criteria. She submitted that she and her husband had provided the relevant documentation to prove the relationship with him of more than five years from 2009 and this had not been disputed by the Secretary of State.
21. Looking at the history, she stated that she had been given a residence permit as a Tier 1 migrant on 9th September 2009 valid until September 2012 which was valid at the time that she had made her application as a family member of an EEA national. She confirmed that whilst it had been refused, the First-tier Tribunal had allowed the appeal on the basis that she was in a durable relationship for at least two years prior to the application. As the Secretary of State had examined her individual circumstances, it must have been acknowledged that the relationship had been in existence and they had been living together since 2009 thus the Secretary of State had provided a residence card in May 2012.
22. She submitted that an EEA family member did not have to apply for a residence card after the duration of five years for permanent residence and that they only needed to show that they had been a family member of an EEA national exercising their treaty rights for a continuous period of five years to apply for permanent residence. As the Secretary of State had acknowledged that the Respondent was in a continuous durable relationship since 2009, she had already demonstrated five years' residence in accordance with the Regulations.
23. Mr Bates had not been sent a copy of the Rule 24 response and was not aware of its existence. He was therefore given time to read it and consider it. It became apparent to him that the issue raised within the grounds and relied upon by Mrs Akintola by way of a response to the Secretary of State's grounds were that because it had been accepted by the Secretary of State that they had been living together since April 2009 that the period of five years had accrued from that time and that between 2009 until the date of the hearing, she had accrued more than a five year period. Mr Bates had been taken by surprise by that argument and sought to have some time to consider if there were any legal authorities relevant to that issue. I therefore gave directions to the parties that the Secretary of State will have seven days to provide any further submissions in writing which should be served upon the Appellant. Thereafter any reply should be received within a further seven days after that time and thereafter I would consider any submissions made by each of the parties that had been made in writing.
24. I observe that since I made those directions on 13th October 2016 no further submissions have been made by either party and therefore as I indicated at the hearing after the expiry of the time limits given for the directions, I would consider the submissions as they stand.
25. Having considered the submissions of each of the parties I am satisfied that the First-tier Tribunal Judge erred in law and that the decision made should be set aside. I have set out earlier in the determination the reasons given by the judge for allowing the appeal under the EEA Regulations as set out at paragraph 8. Those reasons in my judgment fail to take into account the content of the Immigration (EEA) Regulations 2006. Whilst it was open to the judge to find that their relationship had been subsisting for at least five years as at the date of the application that was not the test that the judge should have applied in reaching a conclusion on the relevant issue. Under the Regulations the appellant was required to demonstrate that she had resided with the EEA national, the appellant's spouse, "in accordance with the Regulations for a continuous period of five years". Following the successful appeal before the First-tier Tribunal, the Secretary of State recognised her status by issuing her with an EEA residence card on 31st May 2012. Thus, as the Secretary of State submits, as her right of residence was not recognised until the issue of that residence card on 31st May 2012, she has only been residing in the United Kingdom "in accordance with the Regulations" from that date. Thus for the appellant to succeed she would be required to demonstrate five years' residence in line with those Regulations and as set out in the decision letter that period will not be reached until 31st May 2017.
26. As set out in the Regulations once a residence card is issued, the EEA Regulations 2006 place extended family members in the same position as "family members" ("treated as family members") provided that they continue to satisfy the conditions in Regulation 8 which resulted in their being extended family members and that their documentation remains valid and has not been revoked. Regulation 7 lists those who are to be treated as family members for the purposes of the Regulations, including in Regulation 7(3):
"(3) ... A person who is an extended family member and has been issued with an EEA family permit, a registration certificate, or a residence card should be treated as a family member of the relevant EEA national for as long as he continues to satisfy the conditions in Regulation 8(2), (3), (4) or (5) in relation to that EEA national and the permit, certificate or card has not ceased to be valid or been revoked."
Thereafter, the extended family member has the same right to admission and residence under the EEA Regulations 2006 as does a "family member".
27. Consequently, as her right of residence was not recognised until being issued with a residence card under Regulation 17(4) and that was not issued until 31st May 2012, the appellant has only been residing in the United Kingdom "in accordance with the Regulations" from that date.
28. Thus the judge erred in law in allowing the appeal under the 2006 Regulations by finding that she was entitled to a permanent residence card as a confirmation of her right to reside in the United Kingdom. I therefore set aside that decision of the First-tier Tribunal. I re-make the decision dismissing the appeal.
29. As Mr Bates pointed out at the hearing, that the appellant will be able to make a further application before the expiry of her residence permit on 31st May 2017. The findings of fact that were made by the First-tier Tribunal Judge which have not been challenged in the grounds of the Secretary of State will be before the Secretary of State and taken account of in any further application.

Notice of Decision

The First-tier Tribunal made an error on a point of law; the decision is set aside. The decision is remade as follows. The appellant's appeal is dismissed.

No anonymity direction is made.

Signed Date

Upper Tribunal Judge Reeds

FEE AWARD

As I have dismissed the appeal there can be no fee award.

Signed Date

Upper Tribunal Judge Reeds