Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: ia/01743/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 8th September 2016
On 15 September 2016

Before

Deputy upper tribunal judge ROBERTS

Between

the secretary of state for the home department
Appellant
and

eduardo de castro caetano
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr Duffy, Senior Home Office Presenting Officer
For the Respondent: Mr Junior, Lawland Solicitors

DECISION AND REASONS
1. In this decision I shall refer to the Secretary of State for the Home Department as "the Respondent" and to Mr Eduardo De Castro Caetano as "the Appellant" (to reflect their respective appearance before the First-tier Tribunal).
Preliminary Issue
2. Through an administrative oversight when this appeal was first called on I was informed that there was no attendance on behalf of the appellant. Since the time was well past 10:00 a.m. I indicated to Mr Duffy that I would deal with the matter on the papers before me and that it was not necessary to hear submissions from him.
3. Before I was able to conclude the matter I was informed by my clerk at the end of my list that the Appellant and his representative were in attendance. I therefore called the matter on. Mr Junior assured me that he had been present in the Tribunal building since 10:00 am. I explained the situation to him and asked him how he wished to proceed. Did he wish me to carry on by starting the proceedings afresh or did he wish to return on another day before another judge? He was of the firm view that I should restart the proceedings afresh hearing his oral submissions. Mr Duffy was also content with this course.
Background
4. The Appellant is a citizen of Brazil (born 27th June 1981). He arrived in the UK in 2004 on a visit visa. Following the expiry of that visa, he did not return to Brazil but has remained here since. He is an overstayer.
5. Whilst remaining here the Appellant entered into a relationship with a Swedish national who at that time was exercising treaty rights. A child was born of that relationship in 2010. He therefore submitted an application for a Residence card as an extended family member of the Swedish national. By August 2013 before the application was processed, the Appellant's relationship with the Swedish national broke down.
6. The Appellant then formed a new relationship with a Polish national, Karolina Klimek. In November 2014 the Appellant applied for a residence card under the EEA Regulations 2006, (Regulation 8) on the basis that he and Miss Klimek were in a durable relationship. The Respondent refused the application by way of a decision issued on 17th December 2014. The subsequent appeal came before the First-tier Tribunal.
7. The First-tier Tribunal (Judge Metzer) in a decision promulgated on 2nd February 2016 allowed the Appellant's appeal. The judge accepted that the Appellant and his partner, had a child together. The child was born in December 2015. The Appellant and his partner had married by way of proxy marriage shortly before the child's birth. The judge was satisfied therefore, that the Appellant had established that he was in a durable relationship with an EEA national [11]. He went on to allow the appeal outright.
8. The Respondent appealed the FtT's decision on the basis that the judge erred in allowing the appeal outright. The grounds outlined that the judge had no power to do that, as it is for the Secretary of State to exercise her discretion under Regulation 17(4) of the 2006 EEA Regulations. Having found that the Appellant was an extended/other family member of an EEA citizen exercising treaty rights under Regulation 8(5), the judge should have remitted the matter to the Secretary of State for further consideration and for the exercise of her discretion under Regulation 17(4). The grounds relied upon Ihemedu (other family members - meaning) Nigeria [2011] UKUT 00340 (IAC).
9. Permission was initially refused in the First-tier Tribunal (Judge Osborne) but granted on a renewed application to the Upper Tribunal.
Error of Law/UT Hearing
10. Before me, Mr Duffy relied on the grounds seeking permission. He submitted that it was now settled law that the FtT could not allow an appeal of this nature outright. The Secretary of State retained the residual right to exercise her discretion conferred upon her by Reg.17(4) of the 2006 Regulations and it was not open to the judge to consider exercise of discretion in these circumstances. The decision should be set aside and remitted to the Secretary of State under Reg.17(4).
11. Mr Junior sought to persuade me otherwise. He submitted that the judge had allowed the appeal outright because the Appellant had met the conditions set out in Regulation 8. He referred to the fact that the FtT (Judge Osborne) had initially refused permission and submitted that the FtT was correct to say that the Respondent had had ample opportunity to exercise her discretion before the date of the final hearing before the FtT.
Consideration
12. I find I am satisfied that the FtT's decision to allow the Appellant's appeal outright was in error and the decision must be set aside to the extent that the matter is remitted to the Secretary of State to exercise her discretion under Reg.17(4) EEA Regs 2006.
13. I find that it was not open to Judge Metzer to consider the exercise of discretion in the circumstances of the present appeal. I find the Appellant was wrong to seek to rely upon the fact that because his bundle of documents was served three months before the FtT hearing the Secretary of State had ample time to review her decision. The power contained in Reg. 17(4) is a residual one. The Secretary of State has retained the power of exercise of discretion. In any event, the Secretary of State could hardly have forecast what the findings of the First-tier Tribunal would be before the matter was heard.
14. I accept Mr Duffy's submission that the case law is well settled on this matter and there was nothing before me which would persuade me to do otherwise that to follow it.
Notice of Decision
15. The decision of the First-tier Tribunal promulgated on 2nd February 2016 is set aside. The finding that the Appellant and his partner, a Polish national have been involved in and continue to be in a durable relationship shall stand. The matter is remitted to the Secretary of State in order that she may exercise her discretion under Regulation 17(4) of the EEA Regulations 2006.
16. No anonymity direction is made.
17. Since I have set aside the FtT's decision I also set aside the fee award made.

Signed C E Roberts Date

Deputy Upper Tribunal Judge Roberts 15 September 2016