Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/11034/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7th March 2017
On 12th April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE MAHMOOD

Between

the Secretary of State for the Home Department
Appellant
and

miss OyinkanOnyeka Isizix-XszI
(anonymity direction not made)
Respondent

Representation:
For the Appellant: Mr P Armstrong, Senior Home Office Presenting Officer
For the Respondent: Mr H Kannangara, Counsel

DECISION AND REASONS
1. Originally Miss Xszi was the appellant and the Secretary of State was the respondent. For ease in following this decision I shall continue to refer to Miss Xszi as the appellant, although it is the Secretary of State who has appealed. This is my ex tempore decision.
2. The original decision in this case was that of First-tier Tribunal Judge Ripley sitting at Hatton Cross on 22nd March 2016. The judge had allowed the appellant’s appeal based on human rights grounds but had dismissed the appeal pursuant to the Immigration Rules. The Secretary of State had sought permission to appeal on four grounds, but permission was only granted in respect of one by First-tier Tribunal Judge Ransley. That ground which features as paragraph 5 states as follows:-
“Furthermore, it is submitted that the Tribunal has completely misunderstood the relevance of the EEA Regulations. The appellant was unsuccessful under the Immigration Rules. Her alternative relief was therefore under Article 8. However, the Tribunal has blurred the boundaries of the decision in this case by relying on the EEA Regulations. The appellant has not made a claim under the EEA Regulations. She is perfectly entitled to do so. However, that is independent of this appeal. In this case the Tribunal has launched itself into a series of speculative findings about the possibility of the appellant and her father being able to benefit under the EEA Regulations. In paragraph 18 of the determination the Tribunal concedes that neither party can benefit on the evidence before the Tribunal. However, rather than pointing out that both parties could make an EEA claim, the Tribunal found that the appellant and her father could benefit from the EEA Regulations if they satisfied the conditions of the Rules. Unfortunately, neither the appellant or her father provided evidence to show they satisfied the Regulations. It is therefore submitted that this approach is fallacious and this finding is a nullity.”
3. The findings which were said to be speculative included paragraph 18 which merits citation in full:-
“I accept the appellant’s father’s evidence, despite the lack of corroborative documents. I found his oral evidence to be detailed and persuasive and I accept his explanation for the lack of documentary evidence. I thus find that he was the spouse of a qualified person and he and his daughter would therefore have a right to reside pursuant to Regulation 14(2) of the Immigration (EEA) Regulations 2006 (‘the EEA Regulations’) as at the date of the hearing of this appeal. The appellant’s father’s divorce was due to be finalised three days after the appeal hearing. It would therefore be appropriate to make a comment on his and the appellant’s subsequent residence. On a balance of probabilities, I find it unlikely that his ex-spouse will have closed her business by the end of the week. I therefore find that the appellant and her father would be residing in the UK on the termination of his marriage to a qualified person. I also find that the marriage lasted for three years (since 15 July 2011) and the couple had lived in the UK for over a year. I do not know if the appellant’s father was working as at the date of hearing. I did not take evidence on this point. If he is working, then the appellant’s father would satisfy Regulation 10(6)(a) and the appellant 10(6)(b). Save for this latter requirement, I would find that the appellant has established that she (and her father) are family members who would retain the right to reside pursuant to Regulation 10(5). They would thus have an extended right to reside under Regulation 14(3) of the EEA Regulations.”
and at paragraph 21 it was said:-
“Mr Graham argued that the respondent had not properly considered her Section 55 duty, that it included an obligation to make enquiries regarding the appellant’s right to reside. However, I note that the respondent, in the decision under appeal, did suggest that the appellant may wish to make an EEA application. If she had done so then the respondent would have had the material she needed to consider whether the appellant had an EEA right to reside.”
4. During the submissions today, Mr Armstrong on behalf of the Secretary of State said that the judge had misunderstood the EEA Regulations. The only relief here was under Article 8. The boundaries were blurred because there had been no application under the EEA Regulations. The appellant could have made such an application but she had not done so. The EEA Regulations aspect was independent of this appeal. There was reference to this matter at paragraph 18 of the judge’s decision. The judge’s approach was mistaken and it was legally void. The appellant’s father had now separated from his wife. Insofar as the judge’s decision at paragraph 7 was concerned there was reference to not being able to return because of studies. The appellant was under 18 and could not succeed by reliance on paragraph 276ADE. There was no seven years.
5. Mr Armstrong said that at paragraph 17 there was reference to the appellant being ill-advised by her previous representatives. At the date of the hearing no evidence had been provided that the father was employed and this was three days before the divorce itself had been finalised. This did not seem to be questioned, but why get married if the appellant was not to live with the mother? Ultimately, in relation to paragraph 23 there was a misdirection by the judge as there was no EEA right to reside.
6. I then heard submissions from Mr Kannangara on behalf of the appellant. At paragraph 18 the judge had looked at a possible application that the father might make in terms of the residence card. It may have been an error, but it was not a material error of law. Paragraph 14 potentially raised EEA rights. The appellant’s right to stay is a right which carried that of an EEA citizen. The residence card was confirmation of that right. It was a right which the appellant had. She had come as a direct dependent child, initially for six months, and then the application was made to extend. There was no need for an EEA national to use any particular form, even though it was advisable to do so. They would have paid £65, but in fact in 2015 she paid nearer £1,003 in total, including the NHS surcharge and the Home Office application fee.
7. The Secretary of State had identified the mother as an EEA national from Romania and in the refusal letter the Secretary of State noted that and said “You may be eligible to apply for a family permit”, and that would have been the basis of it, it was submitted, and indeed this tallied with the Home Office guidance. It was submitted that so long as there was a payment, and then looking at the passports that it would be able to been seen that that bears an EEA application was the tender of the submission, and if I understood it correctly the Secretary of State would be able to decipher that this is what was before the Secretary of State.
8. But as I pointed out during the discussion, when one looks to the actual grounds which were submitted by Temple Court Chambers on 17th March 2015, paragraphs 7 and 8 do not read in that format at all. They say:-
“7. The correct application was for the appellant to apply for Resident Card as an EEA national family member and the appropriate form for such application is EEA 2 [sic];
8. The appellant asserts in regards to the decision that when the respondent realised the application was made under a wrong category, he/she should have considered other options rather than refusing the application”.
9. Therefore, there has never been an application under the EEA Regulations and at least one reading of the grounds of appeal lodged in March 2015 seem to acknowledge that there has never been such an application. Indeed another reading is that the application was not being made under the EEA Regulations at all, so I do question whether the Secretary of State really did ever have to consider the EEA Regulations. Even if I am wrong about that, and the appellant’s contention that somehow the Secretary of State has to look through applications and to seek to decipher herself whether an applicant’s case might come under the EEA Regulations, or under the Immigration Rules and Article 8, and thereafter to decide whether to allow it, in my judgment that goes too far. In my judgment it is for the applicants to make their application and for the Secretary of State to consider whether they meet the requirements for that application. It is not sufficient in my judgment to send a lot of documents to the Secretary of State and for the Secretary of State then to try to decipher whether or not one of the Immigration Rules or one of the EEA aspects of the Regulations might be met. I accept that the Immigration Rules and the EEA Regulations are complex, and I accept that the Higher Courts in numerous cases have referred to their complexity, but I am clear that it is not for the Secretary of State to seek to decipher from numerous documents which are submitted whether or not an applicant might be successful under one or another unspecified category.
10. Ultimately, however, the ground of appeal which is well made out in this case is that the judge made speculative findings. For example, the judge said “I do not know if the appellant’s father was working as at the date of the hearing. I did not take evidence on this point”, but then the judge went on to say that if the father was working, then Regulation 10(6)(a) could be satisfied. That clearly was a speculative finding. There was no evidence taken. The judge did not know one way or the other whether the evidence was or was not satisfied. Similarly, the judge had speculated in relation to the appellants’ mother’s work situation and indeed although the divorce appeared to be imminent, that event had not in fact arisen. In the circumstances, in its simplest form, I agree with the grounds of appeal, even though they were drafted, I have to say in a discursive way and perhaps, not in the respectful way that grounds of appeal usually present themselves to the Upper Tribunal. In my judgment, the findings by judge were speculative and because the findings were of a material nature, the decision of the judge which allowed the appeal in respect of Article 8 has to be set aside.

Decision and Directions
1. The Decision of First-tier Tribunal is set aside.
2. The appeal is to be reheard at the First-tier Tribunal by a judge other than Judge Ripley.
3. The issue to be decided is in respect of Article 8, and for the avoidance of doubt the decision of the First-tier Tribunal is set aside in its entirety.
4. There is no anonymity direction.
5. A fee award was made. As I have set aside the decision that fee award is to be varied so that there is no fee award in favour of the appellant.

Signed Date: 20 March 2017

Deputy Upper Tribunal Judge Mahmood