Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA092132015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3rd June 2016
On 15th June 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE SAINI

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Mrs Akua Asamoah Tweneboah-Kodua
Respondent

Representation:

For the Appellant: Mr P Duffy, Senior Home Office Presenting Officer
For the Respondent: Mr J Collins, Counsel; instructed by Kilic & Kilic

DECISION AND REASONS

1. For ease of comprehension, the parties are referred to by their appellate status and positions before the First-tier Tribunal.
2. The Secretary of State appeals with permission against the decision of First-tier Tribunal Judge Rose allowing the Appellant's appeal against the Secretary of State's decision to refuse her application for a permanent residence card, the appeal being allowed on the basis of the Appellant's Article 8 ECHR rights.
3. The First-tier Tribunal promulgated its decision on 17th July 2015.
4. The Respondent appealed against that decision and was granted permission to appeal by First-tier Tribunal Judge Hodgkinson on all grounds with particular note that the appeal in question was not a One-Stop Appeal and it was arguable that the judge erred in law in considering Article 8 ECHR given the decision of the Upper Tribunal in Amirteymour and others (EEA appeals; human rights) [2015] UKUT 00466 (IAC).

Error of Law
5. I find that there was an error of law in the decision such that it should be set aside. My reasons for so finding are as follows.
6. Having heard submissions from Mr Collins on behalf of the Appellant and Mr Duffy I find that the First-tier Judge was wrong in hindsight to consider the Appellant's Article 8 rights given the decision of the Presidential panel in Amirteymour. The decision in Amirteymour makes clear that in the absence of Section 120 additional Grounds of Appeal, Article 8 claims cannot arise in of themselves by virtue of the Secretary of State's consideration of an application for a residence permit.
7. I am aware that Amirteymour is currently pending appeal before the Court of Appeal. However, there is an indication of a view from the Court of Appeal already in the decision of TY (Sri Lanka) v Secretary of State for the Home Department [2015] EWCA Civ 1233 where the Court of Appeal for reasons similar to those in Amirteymour, albeit not expressed in as much detail, states that the Tribunal were wrong to consider Article 8 in such scenarios.
8. At paragraph 36 of that judgment Jackson LJ states as follows:
"In the result therefore I reach a similar decision on the issues before us to the decision reached by the Upper Tribunal in Amirteymour v Secretary of State for the Home Department [2015] UKUT 00466 (IAC). The Upper Tribunal in Amirteymour distinguished JM (Liberia) on a different basis from that which I have identified. See Amirteymour at [50]. Nevertheless in the end the Upper Tribunal has come to the same decision as myself. The Upper Tribunal in Amirteymour has analysed the statutory provisions and the authorities in formidable detail. I shall not seek to traverse all that material. Nor will I seek to plant yet more trees in the impenetrable jungle referred to by Lord Carnwath in the first paragraph of Patel. I reach my decision by the simple route set out in paragraphs 27 to 35 above."
9. At [27] of the judgment, Lord Justice Jackson makes clear that since there were no Section 120 (One-Stop Notice) grounds of appeal, the appellant in that matter was confined to the subject matter of the original decision, which was a decision that the Appellant did not fulfil the requirements of the EEA Regulations. Mr Collins did not seek to challenge the decisions in Amirteymour or TY (Sri Lanka).
10. Given the identical nature of the issue on appeal before me I find that the judge erred in considering the Appellant's Article 8 rights.
11. However, this error of law should not reflect anything more than a technical criticism in Judge Rose's decision given that the judge's decision was promulgated on 17th July 2015 and Judge Rose would have had no way of knowing that the Upper Tribunal would promulgate its decision in Amirteymour on 4th August 2015 highlighting the error in the decision in going on to consider Article 8 ECHR. Consequently the decision of the First-tier Tribunal is set aside in respect of the consideration of Article 8 ECHR.

Remaking the decision on Article 8 ECHR
12. I remake the decision by stating for the record that the Tribunal does not have jurisdiction to consider Article 8 given the decisions in Amirteymour and TY (Sri Lanka) as discussed above.
13. Therefore there is no decision that the Tribunal can make on the Appellant's Article 8 claim and the only decision that shall be carried forward is the decision on the application for permanent residence to which extent the decision of the First-tier Tribunal is affirmed (it not being challenged by the Appellant on appeal) and the remainder set aside.

Notice of Decision
14. The Respondent's appeal is allowed in respect of an error of law concerning Article 8 ECHR. There is no decision that the Tribunal is able to take in respect of Article 8 given the ratio decidenci of the decisions in Amirteyamour and TY (Sri Lanka). Given that the sole issue on appeal was the Appellant's EEA residence permit, the determination of which she did not seek to challenge, the appeal remains dismissed.
15. The appeal in respect of the EEA residence permit was dismissed and remains so, thus there can be no fee award.

Signed Date 10 June 2016

Deputy Upper Tribunal Judge Saini