Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/50144/2021
IA/01678/2021 (UI-2021-001401)

THE IMMIGRATION ACTS

Heard at : Field House
Decision & Reasons Promulgated
On the 16 May 2022
On the 20 June 2022

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

safia khelili
Respondent

Representation:

For the Appellant: Ms Z Young, Senior Home Office Presenting Officer
For the Respondent: Mr A Miah, instructed by MA Consultants

DECISION AND REASONS
1. This is an appeal by the Secretary of State for the Home Department against the decision of the First-tier Tribunal allowing Ms Khelili’s appeal against the respondent’s decision to refuse to issue her with an EEA residence card under the Immigration (European Economic Area) Regulations 2016 as the unmarried partner of an EEA national, Mr Rabah Belarb.
2. For the purposes of this decision, I shall hereinafter refer to the Secretary of State as the respondent and Ms Khelili as the appellant, reflecting their positions as they were in the appeal before the First-tier Tribunal.
3. The appellant is a citizen of Algeria born on 19 January 1969.
4. On 13 October 2020 the appellant applied for a residence card to confirm that she was the unmarried partner of an EEA national exercising Treaty rights in the UK. Her application was refused on 14 December 2020 on the basis that she had failed to provide adequate evidence to show that she was the unmarried partner of an EEA national and that she had a durable relationship with him. The respondent noted the appellant’s claim to have been residing with her EEA national partner since 12 July 2018. However, the respondent considered that the Muslim marriage certificate she had produced was not recognised in the UK and that the other evidence she had produced was not considered to be adequate evidence of a subsisting relationship.
5. The appellant appealed against the decision and her appeal was heard by First-tier Tribunal Judge Dineen on 27 October 2021. The respondent was not represented at the hearing. By the time of the hearing the appellant had undergone a civil marriage to her EEA national partner at Wandsworth town hall, on 8 September 2021, and had submitted her marriage certificate. The judge considered that the appellant therefore now qualified under Regulation 7 and he simply allowed the appeal under the EEA Regulations 2016 on that basis.
6. Permission to appeal to the Upper Tribunal was sought by the respondent on the grounds that the judge had erred by allowing the appeal as the appellant had failed to produce evidence to prove that her relationship with her sponsor was durable. The civil marriage had occurred after the refusal letter was issued and a new application ought to have been made.
7. Permission to appeal to the Upper Tribunal was granted on 4 January 2022 on the grounds that the judge had failed to resolve the issue which was the subject of the refusal decision and that the marriage amounted to a “new matter” further to Oksuzoglu (EEA appeal - "new matter") [2018] UKUT 385 which required consent in order for it to be considered.
Appeal Hearing
8. Both parties made submissions before me.
9. Ms Young advised me that the appellant’s marriage certificate was uploaded to the CCD system the day before the hearing. Although there was no Home Office Presenting Officer at the hearing, the respondent had maintained her position in the Respondent’s Review and the issue before the judge was whether or not the appellant and her EEA sponsor were in a durable relationship. The judge did not resolve that issue. The fact that the appellant and the EEA sponsor were married did not meant that the relationship was durable, when no findings had been made in that respect. The marriage certificate was issued after the refusal decision. Consent should have been sought from the Secretary of State for the new matter to be considered. It was not and the judge therefore erred in law in considering it.
10. Mr Miah relied upon the case of LS (post-decision evidence; direction; appealability) Gambia [2005] UKAIT 00085 in submitting that the judge was entitled to consider circumstances arising after the date of the decision. He submitted that the marriage was not a new matter but was part of the same matter which was the relationship between the appellant and her EEA sponsor. The judge was entitled to allow the appeal on the basis that he did. In any event, even if he had erred, any error was immaterial since the appellant was now married to the sponsor and there had been no challenge to the marriage certificate. I pointed out to Mr Miah that LS (Gambia) pre-dated the requirement for consent for a new matter under section 85(5) of the Nationality, Immigration and Asylum Act 2002. In response, he relied upon the cases of AK and IK (S.85 NIAA 2002 - new matters : Turkey) [2019] UKUT 67 and Hydar (s. 120 response, s. 85 "new matter", Birch) [2021] UKUT 176 which he submitted made it clear that the appellant’s marriage was not a new matter.
11. Ms Young, in response, relied upon the case of Oksuzoglu as referred to in the grant of permission and which she submitted supported her case.
Consideration and Findings
12. Having carefully considered the various authorities to which the parties referred me, I have to agree with Ms Young that the fact of the appellant’s marriage to her EEA sponsor was a “new matter” which the judge was without jurisdiction to consider in the absence of consent from the Secretary of State. I reject Mr Miah’s reliance upon the findings in LS (Gambia). That case pre-dated the changes to section 85(5) of the NIAA 2002 which introduced a requirement for there to be consent for a “new matter” from the Secretary of State and, in any event, applied to a change in circumstances and not to an entirely new basis for the application which was made to the respondent. As for the other cases upon which Mr Miah relied, it seems to me that, rather than assisting the appellant, they in fact undermine her case.
13. The Upper Tribunal, in AK and IK, relied upon the findings in Mahmud (S. 85 NIAA 2002 - 'new matters' : Iran) [2017] UKUT 488, where the Tribunal said at [31]:
“Practically, a new matter is a factual matrix which has not previously been considered by the Secretary of State in the context of the decision in section 82(1) or a statement made by the appellant under section 120. This requires the matter to be factually distinct from that previously raised by an appellant, as opposed to further or better evidence of an existing matter. The assessment will always be fact sensitive.”
14. Whilst the Tribunal, at [31] of Mahmud, went on to consider that the fact that a couple had married since the decision was not likely to be a new matter where the relationship had previously been relied upon and considered by the Secretary of State, that was in the context of a human rights appeal where the nature of the relationship did not fall within a different category of the relevant legal provisions, as in this appellant’s case. That distinction was made clear in AK and IK, where the Tribunal found at [34] that:
“In Mahmud, the evidence in question concerning which the " new matter" issue arose was evidence of the appellant's relationship with a new partner, Ms P, and her sponsor which he first raised in his Notice of appeal. It is therefore not surprising that the Tribunal did not comment upon whether reliance upon a different category of the Immigration Rules in support of a human rights claim amounted to a " new matter". I entirely agree with the reasoning of the Tribunal concerning the issue that was before it in Mahmud. The Tribunal did not need to consider whether an appellant's reliance upon a certain factual matrix and a different category of the Immigration Rules to make good his Article 8 claim constituted a " new matter" which is precisely the issue in the instant case. There is nothing in Mahmud which relates to the issue I have to decide.”
and then concluded at [40] that:
“if an appellant relies upon criteria that relate to a different category of the Immigration Rules to make good his Article 8 claim than that relied upon in his application for LTR on human rights grounds or in his s.120 statement such that a new judgment falls to be made as to whether or not he satisfies the Immigration Rules, this constitutes a " new matter" within the meaning of s.85(6) which requires the Secretary of State's consent even if the facts specific to his own case (for example, as to accommodation, maintenance etc) remain the same.”
15. It seems to me, in addition, that the findings in the case of Oksuzoglu further support the respondent’s case, at [15]:
“The claim that the appellant should benefit from being the family member of a Cypriot citizen exercising Treaty rights in the UK relied upon a factual matrix that had not been previously considered by the respondent - see [31] of - see Mahmud (s.85 NIAA 2002 - 'new matters') [2017] UKUT 488 (IAC). This is a factually and legally distinct matter from that previously raised by the appellant. It was therefore a "new matter" and the FTT only had jurisdiction to consider it if the respondent consented to it - see section 85(5) of the 2002 Act. There was no such consent, either express or implied. I note that the record of proceedings makes no reference to the claim based upon the sponsor's Cypriot citizenship. This is consistent with the FTT decision itself which focuses upon regulation 9 of the 2016 Regs. “
16. Following that finding it is clear that the appellant, when relying upon her marriage to her EEA sponsor, was relying upon a factual matrix that had not been previously considered by the respondent as well as a different category of the EEA Regulations and that this was plainly a “new matter” which required the respondent’s consent in order for the judge to have jurisdiction to consider it.
17. Turning to the question of the respondent’s consent, I canvassed the point to Ms Young that there was no Home Office Presenting Officer at the hearing and that there was therefore no opportunity for the judge to obtain consent. Further, I have considered the prejudice caused to the appellant by the fact that consent could not be sought at the hearing owing to the absence of a representative for the respondent. However, I do not see that either consideration can assist the appellant. I am not able to conclude that the consent could have been implied or assumed by the judge in light of the respondent’s non-attendance, such that he was entitled to ignore the requirement for consent to be obtained. The fact that the respondent’s grounds of challenge to Judge Dineen’s decision assert that a new application should have been made by the appellant, rather than relying upon a marriage post-dating the refusal decision, suggests that even if consent had been sought, it may well not have been given and accordingly no assumptions or presumptions can be made. Further, as regards the question of prejudice to the appellant, I have regard to the fact that it was her choice to undergo an Islamic marriage on 12 July 2018 and not to register her marriage under UK law at the time or in the period of time prior to matters becoming more difficult due to the pandemic. In addition, it was her choice to wait until a few weeks before the appeal hearing to undergo a civil marriage recognised in the UK and it was her choice not to provide the respondent with her marriage certificate prior to the hearing and to upload it to the CCD system only the day before the hearing. In such circumstances I do not agree with Mr Miah that the appellant was unduly prejudiced by the absence of the respondent at the hearing.
18. For all of these reasons it seems to me that Judge Dineen had no jurisdiction to consider the appellant’s marriage under Regulation 7 and that he was not entitled to allow the appeal on that basis alone. What he ought to have done was to seek the respondent’s consent either by way of enquiries being made or an adjournment, or to decide the appeal on the basis of the application and the refusal reasons which were before him, namely under Regulation 8. It was open to him to take the appellant’s marriage into account in considering whether she had now demonstrated that she had a durable relationship with her partner, but not simply to allow the appeal under Regulation 7 on the basis that she was married. As Ms Young submitted, the appeal was not bound to succeed simply because the appellant was married. Accordingly the judge failed to undertake the relevant fact-finding.
19. It seems to me that, given the absence of a decision taken within the Tribunal’s jurisdiction and in the absence of any fact-finding on relevant matters, the appropriate course is for the case to be remitted to the First-tier Tribunal to be heard afresh.
DECISION
20. The making of the decision of the First-tier Tribunal involved an error on a point of law. The Secretary of State’s appeal is accordingly allowed and the decision of the First-tier Tribunal is set aside as stated above.
21. The appeal is remitted to the First-tier Tribunal pursuant to section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 and Practice Statement 7.2(b), to be heard before any judge aside from Judge Dineen.

Signed: S Kebede
Upper Tribunal Judge Kebede Dated: 16 May 2022