Tribunal decisions

The decision

IAC-AH-DP-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/09968/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 18th November 2016
On 18th January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

mr chawki mounie oulmane
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr N Garrod, Counsel
For the Respondent: Mr P Armstrong, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a citizen of France born on 12th March 1980. His extensive immigration history is set out at paragraph 2 of the First-tier Tribunal Judge's decision and I take due note of it. The Appellant's last sentence was a custodial sentence imposed in July 2014 for twelve months' imprisonment following which he was removed from the UK as the subject of a deportation order in March 2015. He was however thereafter arrested in Belfast in May 2015 and held in immigration detention until granted bail in June 2015. The Appellant had previously made application by letters dated 12th and 24th February 2015 for consideration of his rights for private and family life pursuant to Article 8 of the European Convention of Human Rights. That application was refused by way of a detailed Notice of Refusal dated 12th March 2015. Within that Notice of Refusal the Appellant's extensive immigration and criminal history was noted at paragraphs 4 to 10 of the decision, the various sentencing remarks of the Crown Courts and their effect thereon at paragraphs 11 to 23 and consideration was given to Section 55 of the Borders, Citizenship and Immigration Act 2009 at paragraph 24. Thereafter the Secretary of State considered the Appellant's Article 8 claim noting the Appellant had a common law wife, Samsam Ali Jama Jibril born in Somalia on 9th September 1984 and a child Ayah Oulmane born in the United Kingdom on 14th July 2014. That family life was considered thereafter as well as the Appellant's private life.
2. The Appellant appealed the decision of the Secretary of State and the appeal came before Judge of the First-tier Tribunal Colvin sitting at Hendon Magistrates' Court on 19th May 2016. In a decision and reasons promulgated on 24th June 2016 the Appellant's appeal was allowed on human rights grounds.
3. On 1st July 2016 the Secretary of State lodged Grounds of Appeal to the Upper Tribunal. Those grounds are extensive. However their predominant thrust is that the judge failed to fully understand that the wordings of the EEA Regulations are plain and that the need to make an application out of country is mandatory. They contend that the Secretary of State did not have discretion to consider an application that firstly, has not ever been made and secondly, was not made out of country as required by secondary legislation and therefore the entire basis for finding that the decision was disproportionate under Article 8(2) ECHR was misconceived. It was consequently contended that the judge had materially erred in effectively deciding that the Secretary of State should exercise a discretion that the Secretary of State did not have. Further it was also unlawful that even if there was a discretion for the Secretary of State to exercise (which the grounds contend clearly was not the case), the judge had no jurisdiction to review that discretion it being a discretion outside of the Rules and Regulations.
4. On 11th October 2016 Judge of the First-tier Tribunal E B Grant granted permission to appeal noting that there were merits in the grounds that the First-tier Tribunal Judge had erred in law by considering matters he had no jurisdiction to consider and which were not before the Tribunal.
5. It is on that basis that the appeal comes before me to determine whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. For the purpose of continuity throughout the appeal process Mr Oulmane is referred to herein as the Appellant and the Secretary of State as the Respondent albeit that this is an appeal by the Secretary of State. The Appellant appears by his instructed Counsel Mr Garrod. The Secretary of State appears by her Home Office Presenting Officer Mr Armstrong.
Statute, Regulations, and Case Law
6. Prior to referring to the submissions in this matter it is appropriate to consider the issues that are outstanding before me. Regulation 24A of the Immigration (European Economic Area) Regulations 2006 (as amended) states:
"(1) A deportation or exclusion order shall remain in force unless it is revoked by the Secretary of State under this Regulation.
(2) A person who is subject to a deportation or exclusion order may apply to the Secretary of State to have it revoked if the person considers that there has been a material change in the circumstances that justified the making of the order.
(3) An application under paragraph 2 shall set out the material change in circumstances relied upon by the applicant and may only be made when the applicant is outside the United Kingdom ..."
7. The Regulation is assisted by recent case law. Firstly in Badewa (ss117A-D and the EEA Regulations) [2015] UKUT 329 (IAC) it was held that the correct approach to be applied by Tribunal Judges in relation to Sections 117A to D of the Nationality, Immigration and Asylum Act 2002 (as amended) in the context of EEA removal decisions is:
(i) first to decide if a person satisfies the requirements of the Immigration (European Economic Area) Regulations 2006. In this context Sections 117A-D has no application;
(ii) where a person has raised Article 8 as a Ground of Appeal, Section 117A-D applies.
Further in Gheorghiu (Regulation 24AA EEA Regs - relevant factors) [2016] UKUT 24 (IAC) it was held that when considering whether or not to suspend certification of EEA appeals pursuant to Regulation 24AA of the Immigration (European Economic Area) Regulations 2006, the decision-maker should take into account inter alia:
(i) the status of the EEA national;
(ii) the impact of removal on family members;
(iii) evidence of continuing risk to the public; and
(iv) the role oral evidence may play.
Submissions/Discussions
8. Mr Armstrong starts by relying on the Grounds of Appeal stating that the determination is fundamentally flawed. He points out that it is recorded in the decision that the Appellant is a repeat offender and that between December 2001 and July 2014 he has amassed seven convictions for 27 offences in the UK. He submits that the judge has noted that it is clear that the Appellant has no regard to the criminal law of the country, that there are concerns that the Appellant will reoffend and that the NOMS Report states that he is a medium risk of harm to the public and medium risk of reoffending. He states that the main thrust of the Appellant's original appeal are to be found in paragraphs 22 to 26 of the First-tier Tribunal Judge's decision. He submits that the judge has given undue weight on the Appellant having no family in France. He points out that the Appellant is a 36 year old adult who speaks French and that it is a matter for the Appellant's partner and child if they decide to go to France with him. He refers to the authorities mentioned above addressing considerations to be given on suspending certification and of the two stage step to be addressed by the judge in appeals of this nature. He asked me to find that there are material errors of law in the decision of the First-tier Tribunal and to remit the matter back for re-hearing before a freshly constituted First-tier Tribunal.
9. Mr Garrod starts by adopting the skeleton argument that was before the First-tier Tribunal Judge. I have read this document. He acknowledges that he is not the author of it but points out that the judge has looked at the head notes in Badewa which explains the judge's approach. He takes me to paragraphs 28 and 29 of the decision emphasising their importance setting out Regulations that the judge considered gave her the authority to consider the matter and to allow the appeal on an interim basis. He claims that most of the grounds fall away bearing in mind this finding. He submits that there is no definitive ability to remit the matter to the Secretary of State although he believes it is possible to do so and then limit the scope which it is allowed and give advice to the Secretary of State. He submits that there is no guidance available as to the position under the EEA Regulations relying on paragraph 22 of Badewa. He further contends that Badewa does not assist because it imposes a two stage test as set out above and that the judge has gone on to consider Article 8 under the EEA Regulations.
The Law
10. Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
11. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge's factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge's assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration Judge concludes that the story is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
Findings on Error of Law
12. The issue herein turns on whether or not the First-tier Tribunal Judge has properly applied the EEA Regulations. This is not a case of mere disagreement with the decision of the Secretary of State. The relevant paragraph is actually highlighted in the Grounds of Appeal to the Upper Tribunal namely paragraph 24A(3). That paragraph is recited above but both the Grounds of Appeal and Mr Armstrong strongly make the point firstly that it is necessary to make an application and that that has not ever been made and secondly the application can only be made whilst the applicant is outside the United Kingdom i.e. it is an out of country appeal. Consequently I agree with the contention made by Mr Armstrong that the judge has erred in considering that the Secretary of State should exercise a discretion which Regulations indicate that the Appellant does not have.
13. It may be that the Appellant could however have made an in country appeal and that would have been addressed under Regulation 27(3) of the EEA 2006 Regulations. Mr Armstrong concedes that this Regulation would by virtue of transitional provisions apply to this appeal and consequently if that were to be followed then the correct approach is to follow the principles set out in Badewa. That is not the approach that has been adopted in this appeal. It may be that it would be appropriate for that to be addressed but this is not the approach that has been carried out by the judge.
14. Consequently I am satisfied that for these reasons there are material errors of law in the decision of the First-tier Tribunal Judge and the correct approach is to set aside the decision and to remit the matter back to the First-tier Tribunal for re-hearing with none of the findings of fact to stand. Directions are given hereinafter within the decision paragraph for the future conduct of this matter.

Decision and Directions
(1) The decision of the First-tier Tribunal Judge contains material errors of law and is set aside.
(2) The decision is remitted for re-hearing before the First-tier Tribunal sitting at Taylor House (or such nominated court as the administration considers appropriate) on the first available date 28 days hence with an ELH of 3 hours.
(3) That the appeal is to be before any judge of the First-tier Tribunal other than Immigration Judge Colvin.
(4) That there be leave to either party to file at the Tribunal and serve a copy upon the opposing party a bundle of additional subjective and objective evidence upon which they intend to rely along with copies of any relevant case law relied upon and skeleton arguments relied upon at least seven days prior to the restored hearing.
(5) That the Appellant do attend the restored hearing.
(6) That in the event that the Appellant requires an interpreter then it is the responsibility of his instructed solicitors to notify the Tribunal within seven days of receipt of this decision.
No anonymity direction is made.

Signed Date: 12th January 2017

Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD
No application is made for a fee award and none is made.

Signed Date: 12th January 2017

Deputy Upper Tribunal Judge D N Harris