Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Number Appeal: HU/08221/2016

THE IMMIGRATION ACTS

Heard at The Royal Courts of Justice
Decision & Reasons Promulgated
On 3 April 2017
On 10 April 2017

Before

UPPER TRIBUNAL JUDGE PERKINS

Between

Anthony Omo Okoh
(anonymity direction not made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: The appellant appeared in person and was not represented
For the Respondent: Mr T Melvin, Senior Home Office Presenting Officer
DECISION AND REASONS
1. The appellant appeals with permission of an Upper Tribunal Judge a decision of the First-tier Tribunal to dismiss his appeal against the decision of the respondent on 18 March 2016 to refuse him leave to remain in the United Kingdom on human rights grounds. He is the subject of a deportation order made on 14 March 2016.
2. I found it entirely clear from the decision of the Upper Tribunal Judge granting permission that permission was limited to the possibility that the appellant has rights as an EEA national and if he does then the approach to the deportation decision and human rights appeal, arguably, was entirely wrong. I find that the Upper Tribunal Judge did not intend to give permission to appeal the decision made on the assumption that there are no EEA rights. Mr Melvin confirmed that that was the Secretary of State’s understanding and the appellant agreed. The appellant had produced a skeleton argument for this hearing. Paragraph 3 of that skeleton argument confirmed that he was concerned with the First-tier Tribunal Judge’s failure to consider his grounds raising EEA rights and nothing else.
3. I have no hesitation in saying there has been an error of law here. In the First-tier Tribunal there was a Case Management Hearing in front of a Designated Judge. That judge’s notes clearly say that permission was given to rely both on Additional Grounds and on Amended Grounds. There is in the file a document entitled “Additional Grounds” dated 10 May 2016 and signed by Jocelyn Howorth from “Westkin Associates” who were then acting for the appellant. These were not considered in the Decision. The First-tier Tribunal Judge took a typed Record of Proceedings and as far as I can see the Additional Grounds were not mentioned at the hearing. This is regrettable although an easy enough mistake for judge to make when confronted with loose bundles and no index. It certainly cannot be said that the Additional Grounds were abandoned and I have no alternative to saying that the First-tier Tribunal Judge erred in law by failing to consider grounds that had been clearly and properly raised.
4. As indicated above this does not in any way impair the consideration of the points that were taken. The criticism is that something that should have been taken into account was ignored.
5. I have read the skeleton argument of the appellant prepared for the hearing before me as well as the additional grounds. It is not necessary to consider them in detail unless the premise is established that the appellant is entitled to be treated as an EEA national.
6. He asserts simply that he acquired a permanent right of residence in the United Kingdom on 28 May 2011 which is five years after the marriage of the appellant to a Lithuanian national on 28 May 2006. This marriage lasted until 9 January 2013 which, obviously, is more than five year. However although the appellant’s wife was and apparently remained a Lithuanian national she acquired British citizenship on 16 June 2006. As Mr Melvin rightly and helpfully points out in his “Respondent’s Additional Submissions” the phrase “EEA national” is a defined term under Regulation 2 of the Immigration (EEA) Regulations 2006 and means “a national of an EEA state who is not also a British citizen”. It therefore follows unarguably that as soon as the appellant’s wife obtained British citizenship she ceased to be an EEA national for the purpose of the Regulations and therefore he cannot benefit under the Regulations from her residing in the United Kingdom.
7. The situation has been obscured slightly because the appellant was told at some stage by the Home Office that his wife was an EEA national exercising treaty rights but that was plainly a mistake and certainly does not prevent the operation of law or entitle him to be treated as something that he is not.
8. The appellant did not base his case on his first marriage but for the record that did not last for five years and therefore clearly did not give him any derivative rights that might assist here.
9. It follows that the premise of the appellant’s argument falls away. Although I have allowed the appeal to the limited extent indicated above I confirm that I dismiss the appeals under the EEA Regulations.

Notice of Decision
The First-tier Tribunal erred in law by ignoring grounds. I have considered those grounds and I supplement the decision to dismiss the appeal under the Immigration Rules and on human rights grounds by adding that it is also dismissed on EEA grounds.

Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 6 April 2017