Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/06586/2016

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

DARKO IVANKOVIC
Respondent

Representation:

For the appellant: Mr I. Komusanac of Igor & Co. Solicitors
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 Bosnia & Herzegovina who applied for an EEA residence card recognising a right of permanent residence in the UK. The respondent refused the application on 19 May 2016 on the ground that he failed to produce sufficient evidence to show that his EEA national spouse had been residing in the UK in accordance with the EEA Regulations 2006 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 relating to his wife's employment history in the UK was sufficient to discharge the burden of proof to show that his EEA sponsor had been residing in accordance with the regulations for a continuous period of five years. He concluded as follows:

"16. If I was deciding this appeal under the EEA Regulations I would conclude that the Appellant has discharged the burden of proof upon him to show that his Sponsor has been residing in the UK for a continuous period of five years in accordance with the Regulations.

17. After 6th April 2015 we no longer have appeals under the Immigration Rules but deemed human rights applications which are viewed through the lens or prism of the Immigration Rules. In any Article 8 case I am bound to be cognisant of the provisions laid down in Razgar v Secretary of State for the Home Department [2004] UKHL 27. The first burden upon the Appellant is to prove that he has existing family life which the decision in the appeal interferes with to such an extent as to engage Article 8. I acknowledge that the couple are married and were so married on 24th July 2010. It would be unusual for a married couple not to have family life together and I therefore, in engaging with the low burden, find that family life sufficient to engage Article 8.

18. I am then to assess the proportionality of the Secretary of State's decision balancing the desire of the Appellant to have a residence card, against the desire of the United Kingdom government to have an orderly system of immigration control in the economic wellbeing of the country.

19. In assessing any appeal under Article 8 a very material consideration is whether the Appellant would satisfy the relevant Immigration Rules or EEA Regulations. I have decided that in this appeal the Appellant does satisfy those Regulations and that drives me to the conclusion that the appeal of the Appellant should be allowed."

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

Signed Date 19 December 2016
Upper Tribunal Judge Canavan