Tribunal decisions

The decision

IAC-AH-SC-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/09203/2014

THE IMMIGRATION ACTS

Heard at Birmingham
Decision & Reasons Promulgated
On 27th January 2017
On 15th February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE M A HALL

Between

Cassandra Elsada Kelly
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr A Pipe of Counsel instructed by J M Wilson Solicitors
For the Respondent: Mr D Mills, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction and Background
1. The Appellant appeals against the decision of Judge Chohan of the First-tier Tribunal (the FTT) promulgated on 3rd November 2015.
2. The Appellant is a female Jamaican citizen born 28th January 1988. She applied for a derivative residence card as the primary carer of her British citizen daughter born 18th August 2009.
3. The application was refused on 19th May 2014.
4. The Appellant's appeal was dismissed by Judge Beg of the FTT in a decision promulgated on 16th September 2014. This decision was however set aside by the Upper Tribunal on 22nd April 2015 and the appeal remitted back to be considered afresh by the FTT.
5. The appeal was heard again on 29th September 2015 and dismissed, the FTT finding that the Appellant's daughter would not be forced to leave the UK if the Appellant was removed to Jamaica, as she could be looked after by the Appellant's partner, who is not the biological father of the child.
6. Having found that the Appellant was not entitled to a derivative right of residence, the FTT went on to find that it would be conducive to the public good to remove the Appellant from the United Kingdom.
7. The Appellant applied for permission to appeal to the Upper Tribunal and the grounds are summarised below.
8. Firstly it was contended that the FTT had made erroneous findings and erred by finding that it would be conducive to the public good for the Appellant to removed. The FTT had made reference to regulation 19 of the Immigration (European Economic Area) Regulations 2006 (the 2006 Regulations) but the Appellant contended that the Respondent had made no reference to this in refusing her application for a derivative residence card, and therefore the FTT should not have gone on to consider the Appellant's removal and regulations 19 and 21.
9. Secondly and in the alternative, if the FTT was correct to consider regulation 21, there was an error of law in failing to consider relevant evidence, by failing to consider statements made by social workers, and a social work assessment.
10. Thirdly it was contended that the FTT had erred by failing to make proper findings, and concluding that there was 'no valid reason' or 'cogent evidence' why the Appellant's partner could not look after her daughter. The Appellant's partner is not related to her daughter, is a Jamaican national whose immigration status in the UK is precarious, and the Appellant's evidence was that he had said he would not care for her daughter. It was therefore contended that the FTT had failed to appropriately assess the evidence.
11. Permission to appeal was granted by Judge Nicholson of the FTT and I set out below the grant of permission in part;
2. The grounds contend that the judge erred in finding that the Appellant's 6 year old British daughter would be able to reside in the United Kingdom with Mr Gordon, a Jamaican national with a precarious immigration status in the UK, who had been going out with the Appellant for a relatively short period and who was unrelated to the child.
3. Whilst the judge was clearly entitled to note that there was no evidence from Mr Gordon to confirm that he would not look after the child, it is arguable that the judge did err in finding that the child would be able to reside in the UK with him. In Maureen Hines v London Borough of Lambeth [2014] EWCA Civ 660 it was said that, in applying the test under regulation 15A(4A)(c) it was necessary to consider the welfare of the British citizen child in order to answer the question whether the child would, as a matter of practicality, be unable to remain in the UK. This required a consideration, amongst other things, of the impact which the removal of the primary carer would have on the child and the alternative care available for the child. For this purpose it was generally accepted that even an available adoption or foster care placement would not be adequate because the quality of life of the child would be so seriously impaired by the child's removal from the mother that the child would effectively be compelled to leave. In that context, it is arguable that the judge should not have found that this young girl could in practice remain with a man to whom she was unrelated.
4. The judge also considered the appeal in the context of a decision by the Respondent to remove the Appellant. The grounds point out that the Respondent has not given any notice of intention to remove the Appellant. It does appear that the Notice of Refusal simply addressed the Appellant's derivative right of residence and in the circumstances this ground is also arguable.
12. Following the grant of permission the Respondent issued a response pursuant to rule 24 of The Tribunal Procedure (Upper Tribunal) Rules 2008 contending in summary that the FTT had not erred in law and had directed itself appropriately. It was contended that the FTT was entitled to find that if the Appellant had to leave the UK, her daughter would not also have to leave.
13. Directions were subsequently issued that there should be an oral hearing before the Upper Tribunal to ascertain whether the FTT had erred in law such that the decision must be set aside.
The Upper Tribunal Hearing
14. Mr Mills, on behalf of the Respondent, stated that he did not rely upon the rule 24 response and accepted that the FTT materially erred in law as contended on behalf of the Appellant, and therefore the decision of the FTT should be set aside.
15. Both representatives submitted that in the light of the decision CS [2016] EUECJ C-304/14, the decision made by the Respondent on 19th May 2014 was not in accordance with the law as if the Respondent wished to rely upon the Appellant's criminality, CS clarified that the wrong test had been considered.
16. Mr Mills pointed out that the Tribunal retained the power to find a decision not in accordance with the law, in this case, because the refusal pre-dated the implementation of the new appeal provisions contained within the Immigration Act 2014, and I was referred in particular to regulation 26(7) of the 2006 regulations.
My Conclusions and Reasons
17. I find that the FTT erred in law for the reasons given in paragraphs 3 and 4 of the grant of permission, read together with the grounds seeking permission to appeal. The decision of the FTT is set aside with no findings preserved.
18. I accept the submissions made by both representatives, that the decision in CS indicates that an incorrect test was applied by the Respondent when the Appellant's application was considered. I also accept that because the Respondent's decision pre-dated the new appeal provisions brought about by the Immigration Act 2014, the Tribunal has in this case the jurisdiction to find the Respondent's decision not in accordance with the law, and that is the finding made.
Notice of Decision

The appeal is allowed to the extent that the Respondent's decision is not in accordance with the law, and therefore the application remains outstanding before the Respondent for a lawful decision to be made.

Anonymity

There was no application for anonymity and no anonymity order is made.

Signed Date

Deputy Upper Tribunal Judge M A Hall 3rd February 2017

TO THE RESPONDENT
FEE AWARD

No fee has been paid or is payable. There is no fee award.

Signed Date

Deputy Upper Tribunal Judge M A Hall 3rd February 2017