Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/11461/2014

THE IMMIGRATION ACTS

Heard: Field House, London
Decision and Reasons Promulgated
On: the 19th April 2017
On: the 20th April 2017

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

The Secretary of State for the Home Department
Appellant
And

Ndiaye Abdoulaye
(anonymity direction not made)
Respondent

For the Appellant: Ms Fijiwala, Senior Home Office Presenting Officer
For the Respondent: in person

DECISION AND REASONS

1. Mr Abdoulaye is a national of Senegal date of birth 6th May 1975. On the 10th November 2014 the First-tier Tribunal (Judge Goldmeier) allowed his appeal against a decision to refuse to issue him with a residence card confirming his right of residence as the family member of an EEA national. The Secretary of State was granted permission to appeal against that decision on the 7th January 2015.

Background and Matters in Issue

2. The matter in issue before Judge Goldmeier had been whether Mr Abdoulaye qualified for a grant of leave as a Surinder Singh spouse. He had been living with his British partner in Spain before they relocated to the UK; she had been exercising treaty rights there, and on that basis it was submitted that he did. The Secretary of State for the Home Department disagreed. Although no issue was taken with the fact that this was a genuine and subsisting relationship, or that Mr Abdoulaye’s partner had been exercising treaty rights whilst they lived together in Spain, it was contended that Mr Abdoulaye could not have the benefit of Regulation 9 of the Immigration (European Economic Area) Regulations 2006 (‘the 2006 Regs’). That was because this required the couple to have been married before they entered the United Kingdom. The uncontested facts in this case were that they had been in a durable partnership whilst living in Spain, but had only married after they entered this country in 2012.

3. In a cogent determination Judge Goldmeier found Regulation 9 to be discriminatory in its operation. He allowed the appeal on that footing. He further gave consideration to Article 8 ECHR and allowed the appeal on the ground that the decision to refuse Mr Abdoulaye a residence card was a disproportionate interference with his family life.

4. The matter raised in issue on appeal to the Upper Tribunal was whether the First-tier Tribunal had been entitled to reach the conclusion that Regulation 9(2)(b) of the 2006 Regs was discriminatory. It was further contended that there was no scope for the Tribunal to have ventured into the territory of Article 8 ECHR: reliance was placed on the decision in Amirteymour and Ors (EEA Appeals; Human Rights) [2015] UKUT 00466 (IAC).

Developments and Resolution

5. There has been a long and regrettable delay in this matter being resolved. There have been numerous hearings and directions issued by various judges including myself. In September 2016 I found that the Amirteymour point had been made out and that this ground of appeal must succeed. I adjourned the remaining proceedings in respect of Regulation 9. That was because the President of this Tribunal, Mr Justice McCloskey, had in another case, made a reference to the CJEU on the exact same point. As frustrating as that was for Mr Abdoulaye and his family, I determined that the appeal before me could not proceed until the issue had been resolved in the lead case, that being Rozanne Banger IA/42398/13. I adjourned the proceedings but made comment to the effect that the Secretary of State should give urgent consideration to granting Mr Abdoulaye Discretionary Leave in the meantime.

6. In March 2017 the file was brought back to me for review. I had at that point no information about the progress of Rozanne Banger’s case, nor about whether Mr Abdoulaye has in fact been granted some form of leave on a discretionary basis. What I did know was that as of the 1st February 2017 the 2006 Regs had been replaced by the Immigration (European Economic Area) Regulations 2016 (‘the 2016 Regs’). Regulation 9 has been significantly re-drafted: in particular the requirement that a Surinder Singh partner have been married or in a civil partnership prior to arrival in the UK has been deleted. The relevant parts now read:

Family members of British citizens
9.
(1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who is the family member (“F”) of a British citizen (“BC”) as though the BC were an EEA national.

(2) The conditions are that—
(a)BC—
(i) is residing in an EEA State as a worker, self-employed person, self-sufficient person or a student, or so resided immediately before returning to the United Kingdom; or
(ii)has acquired the right of permanent residence in an EEA State;
(b) F and BC resided together in the EEA State; and
(c) F and BC’s residence in the EEA State was genuine.

7. Since the Secretary of State had not contested the factual findings, it appeared to me that Mr Abdoulaye is prima facie entitled to a residence card on the basis of the 2016 Regs. I issued directions that the Secretary of State give urgent consideration to whether she wishes to pursue her appeal. Mindful of the delay, I listed the appeal for hearing.

8. When the matter came before me on the 19th April 2017 Ms Fijiwala initially indicated that she wished to pursue the appeal. That was because she was under the mistaken impression that the couple were unmarried: she (rightly) submitted that Regulation 9 only applies to family members, and not to extended family members. When it was pointed out that this couple had been married for some years now, Ms Fijiwala accepted that the 2016 version of Regulation 9 must apply to Mr Abdoulaye. She made no further submissions, other than to helpfully bring to my attention that the CJEU has accepted the reference in Banger.

9. I find:

(i) That the First-tier Tribunal erred in law in purporting to allow the appeal with reference to Article 8 ECHR. No human rights application or decision had ever been made and as such it had no jurisdiction to do so: Amirteymour applied.

(ii) That the decision of the First-tier Tribunal in respect of Regulation 9 of the 2006 Regs was cogent and well-reasoned. I can find no basis in law to interfere with it. Even if I were to set it aside and re-make the decision in light of the applicable law today, the outcome would be the same. Applying Regulation 9 of the 2016 Regs I find that Mr Abdoulaye meets the requirements therein and should be granted confirmation of his right to residence as the family member of his wife. His residence rights should be treated as having commenced the day that he entered the United Kingdom.

10. The decision of the First-tier Tribunal contained an error of law and the decision is set aside to the limited extent identified above.

11. The decision in the appeal is re-made as follows:

“The appeal is allowed with reference to Regulation 9 of the Immigration (EEA) Regulations 2016”

12. There is no direction for anonymity.

Upper Tribunal Judge Bruce
17th April 2017