Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/10106/2015

THE IMMIGRATION ACTS

Heard at: Birmingham Employment Tribunal
Decision and Reasons Promulgated
On: 18 November 2016
On: 22 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE J F W PHILLIPS

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

DORCAS NIMOH
(anonymity direction not made)
Respondent

Representation
For the Appellant: Ms H Aboni, Senior Home Office Presenting Officer
For the Respondent: Mr M Azmi, Counsel instructed by Rotherham & Co

DECISION AND REASONS
1. This is an appeal by the Secretary of State against the decision of First-tier Tribunal Judge Lagunju in which she allowed the appeal of Dorcas Nimoh, a citizen of Ghana, against the Secretary of State's decision to refuse to issue a residence card as confirmation of a right of residence as the former spouse of an EEA national. The Judge dismissed the appeal under the EEA regulations and Appendix FM of the Immigration Rules but allowed it by reference to paragraph 276ADE of the Immigration Rules having treated a request made at the hearing, in the absence of the Secretary of State, to consider Article 8 ECHR as a request for permission to amend the grounds of appeal. For the sake of clarity, I will refer to Ms Nimoh as 'the Applicant'.
2. The Applicant arrived in the United Kingdom on 2 June 2009 using an EEA family permit as the spouse of a Dutch national exercising treaty rights. On application she was granted a residence card valid until 9 December 2014. On 13 November 2014 the Applicant applied for a further residence card claiming retained rights of residence on the basis that her husband had deserted her in April 2011 and that not having been able to contact him since the marriage had broken down.
3. The application was refused by the Secretary of State and the Applicant exercised her right of appeal against the Secretary of State's decision and this is the appeal that came before Judge Lagunju 19 August 2015 and was allowed. The Secretary of State applied for permission to appeal against the First-tier Tribunal Judge's decision. The application was granted on 31 January 2016 by First-tier Tribunal Judge Brunnen in the following terms
"The grounds on which permission to appeal is sought submit that the Judge erred in law in that private life grounds were not open to the Appellant in this appeal. This is arguable: see Amirteymour [2015] UKUT 466 (IAC) and TY (Sri Lanka) EWCA Civ 1233
Further, even if private life grounds were open, it is arguable that the Judge failed to apply the correct test under paragraph 276ADE(1)(vi) of whether there were very significant obstacles to the Appellant's integration in Ghana and gave no adequate reason for finding such obstacles to exist."
4. At the hearing before me Ms Aboni appeared for the Secretary of State and Mr Azmi appeared on behalf of the Applicant.
Submissions
5. There was no rule 24 response filed on behalf of the Applicant and no skeleton arguments were submitted. Mr Azmi said that he did not have instructions to concede but had explained matters in detail to the Applicant. The Applicant was present and a letter from her representatives was submitted with a copy of NHS pregnancy notes revealing that the Applicant is expecting a child in February 2017.
6. I said that it was inevitable that the Secretary of State's appeal would succeed and I reserved my written reasons.
Decision
7. The factual matrix involved in this appeal is not challenged. The Applicant came to the UK as the spouse of an EEA national exercising treaty rights. The marriage broke down but they are not divorced and the Applicant sought a residence card as confirmation of a retained right of residence. It is not challenged that the Applicant did not meet the requirements of regulations 10 and 13 of Immigration (EEA) Regulations 2006 and that her appeal by reference to the EEA regulations fell to be dismissed.
8. There was no application for leave to remain made under the Immigration Rules and there was no decision made by reference to the Rules. The application for an EEA residence card (using form EEA2), made on 12 November 2014, was accompanied by a letter from the Applicant's solicitors asking for the application to be considered 'outside the rules'.
9. The Secretary of State's decision dated 3 March 2015 is made on the basis that the Applicant did not meet the requirements of the EEA regulations. That is not contentious. The decision very specifically points out that any application based on family or private life needs to be made separately and as such no consideration has been given to such an application and further that no removal directions have been given. There was no human rights decision and no Immigration Rules decision. The grounds of appeal to the First-tier Tribunal although professionally drafted do not mention the EEA regulations, the Immigration Rules or the Human Rights Convention. They do not give any basis whatsoever for appeal.
10. When the matter came for hearing before the First-tier Tribunal the Secretary of State was not represented. A skeleton argument submitted by the Applicant's counsel accepts that the Applicant cannot meet the requirements of the EEA regulations. The skeleton does not seek to amend the grounds of appeal and there is no written application to amend the grounds. The skeleton does however ask for 'a consideration of her Article 8 rights as if a putative consequence of the decision was a removal to Ghana'. The Judge treated this as an application to amend the grounds to include Article 8 ECHR, allowed the application and went on to allow the appeal under the Immigration Rules by reference to paragraph 276ADE.
11. It is difficult to see the decision of the First-tier tribunal Judge as anything other than perverse. It was an appeal that was bound to fail under the EEA regulations. It was an appeal that put forward no coherent grounds. There was no Immigration Rules or Article 8 decision but nevertheless the Judge allowed what appears to have been an implied application to amend the grounds of appeal to include Article 8 but then went on to allow the appeal under the Immigration Rules.
12. In fact, the only decision open to the Judge was the one correctly made under the EEA regulations. There was in my judgement no other appeal before her and nor could there be because there was no other appealable decision and no removal directions.

Conclusion
13. The Judge erred in law for the reason detailed above in allowing the appeal by reference to the Immigration Rules. I set aside that decision.
14. There is no error of law material to the decision to dismiss the appeal by reference to the EEA regulations. That decision stands.

Signed: Date:

J F W Phillips
Deputy Judge of the Upper Tribunal