Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/06522/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 19 December 2016
On 20 December 2016

Before

UPPER TRIBUNAL JUDGE CANAVAN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

G A
(ANONYMITY DIRECTION MADE)
Respondent

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Anonymity was granted at an earlier stage of the proceedings because the case involves a child. I find that it is appropriate to continue the order. Unless and until a tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her family. This direction applies both to the appellant and to the respondent.

Representation:
For the appellant: Ms V. Anzaite, Sponsor
For the respondent: Ms Z. Ahmad, Senior Home Office Presenting Officer

DECISION AND REASONS

1. For the sake of continuity I will refer to the parties as they were before the First-tier Tribunal although technically the Secretary of State is the appellant in the appeal to the Upper Tribunal.

2. The appellant is a citizen of Lithuania who applied for an EEA residence card recognising a right of permanent residence in the UK. The respondent refused the application on 17 May 2016 on the ground that she failed to produce an original birth certificate or sufficient evidence to show that she had been residing in the UK in accordance with the EEA regulations for a continuous period of five years.

3. First-tier Tribunal Judge Dearden considered the appeal on the papers. He allowed the appeal on human rights grounds in a decision promulgated on 22 August 2016. The judge was satisfied that the further evidence produced by the appellant, including her birth certificate and various evidence showing continuous attendance at school, was sufficient to show that she had addressed the areas of concerns raised by the respondent. He concluded as follows:

"13. I am therefore satisfied that the appeal of the Appellant under the European Economic Area Regulations should be allowed.

14. All appeals after 6th April 2015 in matters of this sort have to be under Article 8 of the Human Rights Act. I am to decide whether the appeal under Article 8 should be allowed looking at the application through the lens or prism of the EEA Regulations.

15. The fact that the Appellant complies with the EEA Regulations is powerful evidence that the appeal of the Appellant under Article 8 should be allowed.

16. Regulation 15 of the EEA Regulations indicates that once a person has resided in accordance with the Regulations for a continuous period of five years she shall acquire the right to reside in the United Kingdom permanently. This is not a case where the Secretary of State retains an inherent discretion and so I do not need to respectfully invite the Secretary of state to make a new decision. I therefore simply allow the Appellant's appeal."

4. The Secretary of State appeals the First-tier Tribunal decision on the following limited grounds.

(i) The respondent makes clear that she does not challenge the substantive findings relating to the EEA Regulations 2006 i.e. the respondent accepts that the appellant meets the requirements for permanent residence.

(ii) However, the judge erred in failing to appreciate that this was an appeal under the EEA Regulations 2006 and in failing to determine the appeal under those regulations.

(iii) In light of the decision in TY (Sri Lanka) v SSHD [2015] EWCA Civ 1233 the judge erred in proceeding to consider and determine the appeal on human rights grounds.

(iv) The respondent suggests that the decision in respect of the human rights findings should be set aside and that the appeal should be allowed under the EEA Regulations 2006.

5. I have no hesitation in agreeing with the arguments made by the Secretary of State. It appears that the judge fundamentally misunderstood the new appeals regime introduced after 06 April 2015. Although amended section 82 of the Nationality, Immigration and Asylum Act 2002 ("NIAA 2002") now restricts the number of appeals within the statutory appeal regime to decisions to refuse a protection or human rights claim, the EEA Regulations 2006 have always been a separate appeal regime and this continued after 06 April 2015. Having found that the appellant met the requirements for permanent residence under regulation 15 the judge should have gone on to allow the appeal under the EEA Regulations 2006.

6. The decision also discloses an error in the judge's understanding of the role of human rights issues in an appeal under the EEA Regulations 2006. Firstly, his reference to Article 8 "of the Human Rights Act" is incorrect. The relevant provision is Article 8 of the European Convention of Human Rights. Secondly, there is now a line of clear and binding authority in TY (Sri Lanka) v SSHD and Amirteymour and Others (EEA appeals; human rights) [2015] UKUT 465 to say that human rights issues cannot be determined in an EEA appeal where no one-stop notice has been issued under section 120 of the NIAA 2002.

7. For these reasons I set aside the decision in so far as it purports to make findings relating to human rights. The respondent accepts that the appellant meets the requirements of regulation 15 of the EEA Regulations 2006. Accordingly, the decision is remade and the appeal allowed under the EEA Regulations 2006.

DECISION

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

The appeal is remade and ALLOWED under the EEA Regulations 2006

Signed Date 19 December 2016
Upper Tribunal Judge Canavan