Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/13429/2015

THE IMMIGRATION ACTS

Heard at Centre City Tower, Birmingham
Decision & Reasons Promulgated
On 24th June 2016
On 10th October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

MR TSIBU ALBERT DANKWA
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Sandra Akinbolu (Counsel)
For the Respondent: Ms H Aboni (Home Office Presenting Officer)

DECISION AND REASONS
1. This is an appeal against the determination of First-tier Tribunal Judge Place, promulgated on 24th June 2015, following a hearing at Nottingham on 12th June 2015. In the determination, the judge allowed the appeal of the Appellant, whereupon the Respondent Secretary of State, subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.

The Appellant
2. The Appellant is a citizen of Ghana, who was born on 24th November 1975. He appealed against the decision of the Respondent dated 15th April 2015, to refuse to grant him a residence card, as confirmation of his right of abode in the United Kingdom on the basis of being a family member of an EEA national, namely, a Dutch national, by the name of Lydia Ohenba, whom the Appellant had married, as his wife.
The Appellant's Claim
3. The Appellant's claim is that he is entitled to remain in the UK on the basis of his genuine and subsisting marriage with Ms Ohenba, as she is an EEA national exercising treaty rights in the UK.
The Judge's Findings
4. The judge held that, although the Respondent Secretary of State had not accepted that the marriage was legally valid in Ghana, or been properly registered, this was a case where the Sponsor was prepared to attend the ceremony in person and he was serious about the step he was taking, so that whatever the legalities of Ghanaian law, the judge went on to hold that the parties were validly married according to the laws of Ghana (see paragraph 43). The judge also went on to hold that there was a "durable relationship" under the EEA Regulations between the Appellant and his Sponsor (see paragraph 44).
5. The appeal was allowed.
Grounds of Application
6. The grounds of application state that the judge failed to give proper regard to the learning in Kareem (Proxy marriages - EU law) [2014] UKUT 00024 which was in the Respondent's bundle for the judge to consider.
7. On 11th September 2015, permission to appeal was granted.
8. A detailed Rule 24 response was subsequently entered by the Appellant.
Submissions
9. At the hearing before me, the Appellant was represented by Ms Sandra Akinbolu and the Respondent was represented by Ms H Aboni. Ms Aboni submitted that she relied on the Grounds of Appeal. She would also say that the judge had wrongly said that the Respondent has a discretion "under Regulation 12(2) to issue the Appellant with an EEA family permit" (paragraph 45). This was because the relevant provision was Regulation 17(4).
10. That aside, the main issue here was that the judge could not have allowed the appeal outright, even if he found there to be a genuine marriage or a durable relationship, because all that the judge could do was to allow the appeal to the extent that the grant of a residence permit would then fall to be determined by the Secretary of State, on the basis of findings made by the judge. The judge could not himself or herself rule that a residence permit should be granted.
11. However, Ms Akinbolu submitted that she had no difficulty with this submission. In fact, there was correspondence to the effect that the Appellant's side had attempted to avoid appearance at the oral hearing today, because, once the judge had decided that there was a durable relationship between the parties, it was fully accepted that the matter then went back to the Secretary of State to decide whether, in the exercise of her discretion, a residence permit should be granted. That was duly issued. Ms Akinbolu submitted that the necessity of having to come to this Tribunal meant that her side was in doubt of the costs of the case today.
Error of Law
12. I am satisfied that the making of the decision by the judge involved a making of an error on a point of law (see Section 12(1) of TCE 2007) such that I should set aside the decision. My reasons are that, as has been agreed between the parties in this appeal prior to coming to this hearing, all that the judge could do was to make a finding that the marriage was a genuine marriage and/or there was a durable relationship. The judge could not say that it was inappropriate to refuse a permit. That was a matter for the Secretary of State. That being so, the decision whether or not to exercise discretion under Regulation 17(4) of the EEA Regulations is one that falls to the Secretary of State and is a matter for her.
13. I have given consideration to the documentation between the parties. When the Rule 24 response was filed on 12th October 2015, a covering letter from Bond Adams LLP (Solicitors) made it clear that the matter should be decided without a hearing. On 14th June 2016 they wrote again, quite properly, to remind the Tribunal that this was the obvious course of action here, and attached also the Rule 24 response at the time.
14. This letter of 14th June 2016 came after Bond Adams LLP (Solicitors) had written on 9th June 2016, a letter headed "Very Urgent" where they submitted that
"? our client accepts that the judge made an error by allowing the appeal under Regulation 12 instead of Regulation 17(4) of the 2006 Regulations (as amended). In the light of the Rule 24 response provided we request that the appeal can be allowed without the need of oral hearing saving client time and cost of both parties".
15. On 21st June 2016 they wrote again to the Upper Tribunal reminding the authorities that "our client is under financial difficulties and is unable to pay for the hearing" and requesting that the matter be determined on the papers without the attendance of legal representatives and the Appellant.
16. They received no response to any of their letters. In the circumstances, it is entirely right and proper that they be entitled to their costs.
Notice of Decision
17. The decision of the First-tier Tribunal involved the making of an error of law such that it falls to be set aside. I set aside the decision of the original Tribunal. I remake the decision as follows. This appeal is allowed to the extent that it is for the Respondent Secretary of State to determine under Regulation 17(4) of the EEA Regulations as to whether to exercise discretion in order to issue a residence permit.
18. No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Juss 7th October 2016

TO THE RESPONDENT
FEE AWARD

As I have allowed the appeal, and because a fee has been paid or is payable, I have considered making a fee award and have decided to make the fee award that has been paid or is payable for the reasons that I have given above.

Signed Date

Deputy Upper Tribunal Judge Juss 7th October 2016