Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/07917/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 23rd June, 2016
Dictated 23rd June 2016
Signed 28th June, 2016
On 9th August, 2016

Before

Upper Tribunal Judge Chalkley

Between

M D Mehedi Hasan
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Z Malik of Counsel, instructed by Thamina Solicitors
For the Respondent: Ms A Brocklesby-Weller, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant was born on 28th November, 1989 and is a citizen of Bangladesh. He arrived in the United Kingdom on 15th January, 2011 as a Tier 4 (General) Student. On 28th January, 2012, he applied for further leave to remain as a Tier 4 (General) Student attaching a TOEIC certificate from Educational Testing Service. No decision was received in relation to the 28th September, 2012, application.

2. The respondent issued removal directions under Section 10 of the Immigration and Asylum Act 1999 on 6th March, 2010, on the basis of the appellant having fraudulently obtained an English speaking test. On 24th September, 2014, the appellant had applied for a residence card as the family member of an EEA national, his cousin Abdur Rahim Mohammed. Mr Mohammed is a Portuguese national exercising treaty rights in the United Kingdom.

3. The appellant appealed to the First-tier Tribunal and his appeal was heard by First-tier Tribunal Judge Bowler at Hatton Cross on 14th September, 2015. In his determination promulgated on 7th October, 2015, the judge decided:-

(a) that the appellant had no in country right of appeal against the Secretary of State's decision to remove him from the United Kingdom under Section 10 of the Immigration and Asylum Act 1999; and

(b) dismissed the appellant's appeal from the Secretary of State's decision to refuse his application for a residence card as an extended family member of an EEA national.

4. Permission to appeal was granted on four grounds:

(1) that the judge misread Section 92 of the Nationality, Immigration and Asylum Act 2002 in holding that there was no in country right of appeal against the Secretary of State's decision to remove the appellant from the United Kingdom under Section 10 of the 1999 Act;

(2) the First-tier Tribunal Judge's conclusion that the appellant had no in country right of appeal against the Secretary of State's decision to remove the appellant from the United Kingdom under Section 10 of the 1999 Act was inconsistent with the text and scheme of Section 85 of the 2002 Act;

(3) the First-tier Tribunal's decision to dismiss the appeal from the Secretary of State's decision to refuse his application for a residence card as an extended family member of an EEA national was procedurally unfair; and

(4) the First-tier Tribunal's decision to dismiss the appellant's appeal from the Secretary of State's decision to refuse his application for a residence card as an extended family member of an EEA national was perverse and based on a material misdirection in law.

5. Mr Malik very helpfully expanded on his grounds and took me to paragraphs 40 and 41 of the determination. He suggested that the judge was wrong to conclude that the appellant has no right to bring an in country appeal against the Section 10 removal directions while he is in the United Kingdom. The judge, and before him the Home Office, had ignored Section 92(4) of the 2002 Act. Section 92 of the 2002 Act provides:-

"(1) A person may not appeal under Section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this Section applies.

(2) This Section applies to an appeal against an immigration decision of a kind specified in Section 82(2)(c), (d), (e), (f) and (j).

?

(4) This Section also applies to an appeal against an immigration decision if the appellant -

(a) has made an asylum claim, or a human rights claim, while in the United Kingdom, or

(b) is an EEA national or a member of the family of an EEA national and makes a claim to the Secretary of State that the decision breaches the appellant's rights under the Community Treaties in respect of entry to or residence in the United Kingdom."

6. Counsel suggested that as a result of the appellant having an EEA national the appellant must also have an in country right of appeal against the Section 10 removal decision.

7. For the respondent, Ms Brocklesby-Weller suggested that nothing in Section 92 suggests that an out of country appeal may be brought in country. The two different decisions cannot be linked.

8. In relation to the second challenge Mr Malik suggested that the judge's conclusion that the appellant has no in country right of appeal against the Secretary of State's decision to remove the appellant from the United Kingdom under Section 10 of the 1999 Act is simply inconsistent with the text and scheme of Section 85 of the 2002 Act.

9. The judge properly accepted that the appellant had an in country right of appeal in respect of the EEA decision. The First-tier Tribunal's decision that an appeal against the removal decision cannot be entertained within the appeal proceedings from the EEA decision is inconsistent, Mr Malik suggested, with Section 85 of the 2002 Act, which provides:

"(1) An appeal under Section 82(1) against a decision shall be treated by the Tribunal as including an appeal against any decision in respect of which the appellant has a right of appeal under Section 82(1)."

10. The removal decision is clearly an immigration decision under Section 82(1) and the judge was obliged to treat the appeal against the EEA decision as "including an appeal" against the removal decision.

11. Mr Malik suggested that the appellant's submissions avoid multiplicity of appeals and the approach taken by the First-tier Tribunal Judge plainly results in two separate appeals, one in country and one out of country. He pointed out that it was perfectly possible that the appellant might have a successful in country EEA appeal but not be able to exercise his rights in respect of a removal decision because he remained in country.

12. For the respondent the Presenting Officer reminded me that Section 10 provides for an out of country appeal, but a decision under the EEA Regulations gives an in country right of appeal. There is nothing, she suggested, in those opposing jurisdictional points which means that both appeals have to be heard at the same time and in country. Without jurisdiction, the First-tier Tribunal cannot hear an out of country appeal if the appellant remains in country. Indeed, an appellant with an out of country appeal cannot exercise his right of appeal until he has left the United Kingdom.

13. The Secretary of State gave one reason for refusing the appellant's application for a residence card, namely that he had not provided evidence in the form of birth certificate as evidence that he is related as claimed to an EEA national. The judge heard evidence and concluded that the appellant is the cousin of Mr Mohammed. He recorded a submission by the Presenting Officer that if the appellant was found to be the cousin of Mr Mohammed the case should be remitted to the respondent for further consideration regarding remaining elements of the extended family provisions.

14. Mr Malik pointed out that the judge recorded a further submission from the Presenting Officer to the effect that were he to address the qualification as an extended family member there is insufficient evidence to show dependency. This submission was made after evidence was heard. Applying RM (Kwok On Tong: HC 395 para 320) India [2006] UKAIT 00039 the appellant went to the appeal hearing to deal with the sole concern expressed by the Secretary of State in her decision, namely his relationship with his cousin. The appellant successfully addressed that concern.

15. The judge permitted a further ground of refusal to be raised after evidence was heard in oral submissions by the Presenting Officer and then dismissed the appeal for that additional ground without allowing an appropriate adjournment for the appellant. That, Mr Malik suggested, was wrong.

16. Finally, in concluding that the evidence was insufficient to show that payments provided material support for the appellant's "essential needs" the judge failed to direct himself correctly. Education is one of the essential needs along with accommodation, food, clothing etc. and in that part of Bangladesh where the appellant comes from a child will remain illiterate and innumerate unless they can pay to go to school. In considering the evidence the judge had omitted entirely to give any consideration to transfers at pages 159 to 162 of the bundle. There was no extensive examination of the personal circumstances to justify denial of entry or residence as required by Article 3(2).

17. The Presenting Officer suggested that the evidence before the judge simply failed to demonstrate that material support had been supplied for the appellant's material needs. The funds were paid to the appellant and he was between the ages of 18 and 20 and undergoing tertiary education.

18. I have reserved my decision.

19. Having carefully considered Counsel's helpful and eloquent submissions, I find that there is no in country right of appeal against the Secretary of State's decision to remove the appellant from the United Kingdom under Section 10 of the 1999 Act. Counsel drew my attention to Section 92 and in particular to Section 92(4). Section 92(4)(b) suggests that this Section also applies to an appeal against an immigration decision if the applicant is an EEA national [and the appellant very clearly is not] or a member of the family of an EEA national who makes a claim to the Secretary of State that the decision breaches the appellant's rights under the community treaties in respect of an entry to or residence in the United Kingdom. However, the appellant is not a member of the family of an EEA national. Regulation 7 of the Immigration (EEA) Regulations 2006 says:-

"7. (1) Subject to paragraph (2), for the purposes of these Regulations the following persons shall be treated as the family members of another person -

(a) his spouse or his civil partner;

(b) direct descendants of his, his spouse or his civil partner who are -

(i) under 21; or

(ii) dependants of his, his spouse or his civil partner;

(c) dependent direct relatives in his ascending line or that of his spouse or his civil partner;

(d) a person who is to be treated as the family member of that other person under paragraph (3)."

20. Paragraph (3) deals of course with extended family members who have been issued with an EEA family permit. As a cousin of Mr Mohammed, the appellant is an extended family member. To this limited extent, I find that the decision of the First-tier Tribunal Judge in this respect does not contain an error of law.

21. So far as Counsel's second ground is concerned, I believe that a removal under Section 10 cannot be treated as a decision in respect of which the appellant has a right of appeal under Section 82(1) while he is in the United Kingdom, because until he has left the United Kingdom, he has no right of appeal.

22. Parliament has decreed that appeals against a section 10 removal may only be exercised from abroad. I accept that Counsel's submissions avoid multiplicity of appeals, but that is what Parliament has decided. Again, to this extent I find no error of law on the part of the judge.

23. Turning now to the third challenge, I noted from paragraph 7 of the determination that as a preliminary matter the Presenting Officer appearing on behalf of the Secretary of State indicated to the judge that in the event that he concluded that the appellant had a right of appeal in relation to the EEA decision, then the matter should be remitted to the Home Office to determine dependency. I believe that what the Presenting Officer meant was that the judge should have allowed the appeal to the extent that the application remains to be considered by the Secretary of State in the light of his finding that the appellant and Mr Mohammed are related as claimed.

24. The judge pointed out, however, that he was minded to hear evidence in relation to the question of dependency. I believe that in doing so the judge did err. Counsel suggested that the judge should simply have allowed the appeal to the extent that he found that the appellant was related to Mr Mohammed and point out to the Secretary of State that it was still for her to make a decision based on the findings as found by the judge.

25. The respondent had not considered the question of dependency; merely whether or not the parties were related as claimed.

26. I find that the judge did err and that the appellant should have been allowed an appropriate adjournment in order to avoid any injustice by him not having been prepared to deal with a new element of the Immigration Rules which had come into play as a result of him establishing that he was related to Mr Mohammed. As it was, the judge went on to consider evidence as to essential needs and did so without reminding himself or recording in the determination the date the sponsor became an EEA national.

27. I agree that it would have been appropriate for the judge to have allowed the appeal to the extent that it remained for the Secretary of State to consider the question of dependency.

Notice of Decision

For all these reasons I have concluded that the First-tier Tribunal Judge did err by failing to allow an appropriate adjournment and I substitute my decision for his. The appellant's appeal is allowed to the extent that it has been found by the judge that the appellant and his sponsor are cousins and related as claimed. It is now for the respondent to further consider the application in the light of this finding.

Richard Chalkley
Upper Tribunal Judge Chalkley