Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/09506/2014

THE IMMIGRATION ACTS

Heard at Glasgow
Determination Promulgated
On 6 May 2015
On 7 May 2015

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

NANCY FAY COY
Respondent

For the Appellant: Mrs M O'Brien, Senior Home Office Presenting Officer
For the Respondent: Mrs J Moore of Drummond Miller, Solicitors

DETERMINATION AND REASONS
1. The parties as described above, but the rest of this determination refers to them as they were in the First-tier Tribunal.
2. The appellant is a citizen of the USA. She applied for a derivative residence card under the Immigration (European Economic Area) Regulations 2006 as the primary carer of a UK citizen.
3. The respondent refused that application for reasons explained in a letter dated 28 January 2014. The letter says that if the appellant wishes to remain in the UK on the basis of family and private life, she should make the relevant application. It also advises her that if she fails to depart voluntarily her departure might be enforced, but in that event she would firstly be contacted and would have a separate opportunity to make representations against removal.
4. The appellant's appeal against that decision came before Judge D C Clapham SSC in the First-tier Tribunal on 28 April 2014. The appellant did not insist on her case under the Regulations but pressed it under Article 8 of the ECHR. In his determination, promulgated on 7 May 2014, the judge allowed the appeal under Article 8 on the basis that an application made from the USA was bound to succeed under the Immigration Rules, and there was no reason for requiring the appellant to submit to the formality of applying from abroad (paragraphs 21 and 22).
5. The SSHD's grounds of appeal to the Upper Tribunal argue firstly (paragraphs 2-4) that the First-tier Tribunal erred in law in its approach to the Article 8 assessment by not having regard to the Rules, by failing to identify compelling circumstances not recognised by the Rules, and by failing to identify exceptional circumstances leading to an unjustifiably harsh outcome. Secondly, the grounds argue (paragraph 5) that it would be proportionate to require the appellant to return to the USA to seek entry clearance.
6. Mrs O'Brien sought firstly to raise an issue of jurisdiction. She acknowledged that such is not raised in the SSHD's grounds, but she submitted that a fundamental error of jurisdiction was always liable to be corrected. The point to be made was that the case did not involve any substantive interference with Article 8 rights.
7. I indicated that in my view that the point was not properly a jurisdictional one. It could be argued that the SSHD's decision did not involve any substantive interference with Article 8 rights, but without doubt procedurally an Article 8 ground of appeal to the First-tier Tribunal was available.
8. Mrs O'Brien maintained that nevertheless the point could be derived from the grounds of appeal (which she did not seek to amend). The SSHD's decision did not foreshadow removal, so the judge should have approached the case on the basis that there was no substantive interference with the appellant's Article 8 rights by requiring her to make a properly vouched application in accordance with the Rules. If the judge had taken the correct legal approach, he could not have reached the result he did. He had also fallen into the misconception that this is "a Chikwamba case" whereas it was open to the appellant, given her immigration status, to apply under the Rules without leaving the country. Her case would then have fallen for consideration under paragraph EX.1 and was likely (although not guaranteed) to succeed, on the basis of the facts found by the judge. The whole approach to Article 8 had been erroneous and the determination should be reversed.
9. Mrs Moore's principal point in reply was that the argument now made for the respondent was entirely novel, and not foreshadowed in the grounds. Her clients (the appellant and the sponsor) were a vulnerable couple who had been advised up to this date on the basis of the SSHD's grounds of appeal. A drastic shift of position should not be permitted at this very late stage.
10. I indicated that the grounds of appeal disclosed no legal error in the First-tier Tribunal determination, and that the SSHD's appeal to the Upper Tribunal would be dismissed.
11. The first point in the grounds (paragraphs 2-4) fails to recognise the basis of the determination, namely that the judge thought the terms of the Rules would be met on an application from abroad. The second point in the grounds (paragraph 5) says that it is always proportionate for applications to be made from abroad where the Rules so require, but that is contrary to the principle in Chikwamba. The grounds are misconceived.
12. There is at least a respectable argument to be made that notwithstanding JM (Liberia) and Ahmed, to which the appellant referred the First-tier Tribunal, no substantive Article 8 issue generally arises from a decision such as the one leading to these proceedings. That was argued in the First-tier Tribunal by the Presenting Officer - see paragraph 17. However, the grounds of appeal to the Upper Tribunal do not adopt that line of argument. Also, the grounds accept that on its facts this case did raise a Chikwamba issue. On the basis of the grounds there would be no reason to find that the judge did not apply the Chikwamba principle correctly.
13. While the Presenting Officer did her best with the grounds she had to argue, it is too late now to raise a quite different attack on the determination. It may be possible to raise issues going fundamentally to jurisdiction even at a late stage, but the point sought to be argued is not of that nature. It goes to the substance of the decision not to jurisdiction. It is also too late to raise the point that this was not a case in which the Rules specify an out of country application.
14. The determination of the First-tier Tribunal shall stand.

6 May 2015
Upper Tribunal Judge Macleman