Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/14617/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 19 October 2016
On 24 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE MONSON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

mr SOHAIL BASHIR
(ANONYMITY DIRECTION NOT MADE)
Respondent/Claimant

Representation:
For the Appellant: Mr N. Bramble, Senior Home Office Presenting Officer
For the Respondent: Mr R. Benton, Counsel

DECISION AND REASONS

1. The Secretary of State appeals to the Upper Tribunal from the decision of the First-tier Tribunal (Judge Afako sitting at Taylor House on 8 April 2016) allowing the claimant's appeal against the decision to refuse to issue him with a residence card under the Immigration (European Economic Area) Regulations 2006 as the extended family member ("EFM" or "OFM") of an EEA national exercising treaty rights in the UK. The First-tier Tribunal did not make an anonymity direction, and I do not consider that the claimant requires anonymity for these proceedings in the Upper Tribunal.
The Reasons for Granting Permission to Appeal
2. On 21 September 2016 Judge Saffer granted permission because Sala (EFMS: Right of Appeal) [2016] UKUT 00411 (IAC) decided that there is no right of appeal for an EFM. He added that "all grounds" may be argued.
The Hearing in the Upper Tribunal
3. At the hearing before me to decide whether an error of law was made out, I heard argument on Sala and on the main ground of appeal advanced in the permission application, which was that the judge had erred in law in finding that the claimant was an EFM as the judge had not made a finding on whether his brother had acquired his EAA nationality before the claimant arrived in the UK as a student.
4. Mr Benton applied for the hearing to be adjourned on two grounds. The first was that it remained to be seen whether Sala would be upheld by the Court of Appeal. The second was that he wished to persuade the Home Office that the refusal was flawed. I refused to grant an adjournment as Mr Bramble was content to pursue his error of law challenge on the merits, and he submitted that I was not bound to follow Sala.
Reasons for Finding an Error of Law
Prior Dependency on an EEA National
5. In Ihemedu (OFMs - in meaning) Nigeria [2011] UKUT 00340 (IAC) Senior Immigration Judge Storey, as he then was, gave the following guidance which is quoted at sub-paragraph 2 of the head note:
An important consideration in the context of an OFM/extended family member case is that if a claimant had come to the UK without applying for a family permit from abroad ?, this will mean that the UK authorities have been prevented from conducting the extensive examination of the individual's personal circumstances envisaged by Reg 12(3) and in the course of such an examination check the documentation submitted. If an applicant chooses not to apply from abroad for a family permit under Reg 12 of the 2006 Regulations, thereby denying the UK authorities an opportunity to check documentation in the country concerned, he cannot expect any relaxation in the burden of proof that applies to him when seeking to establish an EEA right" (my emphasis).
6. In the same case, Judge Storey noted at paragraph [4] that Article 10(2)(e) of the Citizens Directive stipulated that in cases falling under Article 3(2)(a), which deals with OFMs, applicants must produce "a document issued by the relevant authority in the country of origin or country from which they are arriving certifying that they are dependants or members of the household of the union citizen ?".
7. The same observation was made in Moneke (EEA - OFMs) Nigeria [2011] UKUT 00341 (IAC) at paragraph [42]:
We note further that Article 10(2)(e) of the Citizens Directive contemplates documentary evidence. Whether dependency could ever be proved by oral testimony alone is not something that we have to decide in this case, but Article 10(2)(e) does suggest that the responsibility is on the applicant to satisfy the Secretary of State by cogent evidence that is in part documented (my emphasis) and can be tested as to whether the level of material support, its duration and its impact upon the applicant combined together meet the material definition of dependency.
8. Moneke also affirmed the following at paragraph [40]:
ii In either case the dependency of membership of the household must be on a person who is an EEA national at the material time. Thus dependency or membership of a household that preceded the sponsor becoming an EEA national would not be sufficient.
9. As submitted by Mr Bramble, Judge Afako clearly misdirected himself in law on the issue of prior dependency/membership of a household. At paragraph [7] he said that the critical evidential question was whether the claimant and his brother were "once again" members of the same household as they were in Pakistan. This was the wrong question. The right question was whether, prior to his arrival in the UK, the claimant had been dependent on a family member (i.e. his brother) who had acquired status as an EEA national.
10. The judge failed to make a finding on when the brother became an Irish national, and so there was no evidential basis for the finding that the claimant met the requirement of either prior dependency on, or prior membership of the household of, an EEA national.
11. So the decision is vitiated by a material error of law, such that it must be set aside and remade.
The Remaking of the Decision
12. The evidence presented by Mr Benton pursuant to Rule 15(2A) shows that the brother acquired Irish, and hence EEA, nationality on 21 October 2013. This was long after the claimant entered the UK as a student.
13. It is clear from Regulation 8(2)(a) that in order to qualify as an EFM the claimant needed to have resided in a country "other than the United Kingdom" when either a dependent upon his EEA national sponsor or a member of his household.
14. The claimant does not satisfy this requirement. So the claimant does not qualify as an EFM, and there is no prospect whatsoever of his legal representatives persuading the Secretary of State that the decision appealed against is flawed.
15. Mr Benton urged me to consider the corresponding provisions in the Citizen's Directive. But these do not avail the claimant, as is apparent from paragraphs 5 to 7 above.
Right of Appeal?
16. The ratio decidendi of Sala is that a decision taken by the Secretary of State "in the exercise of her discretion" not to issue an EFM with a residence card is not an appealable decision under the EEA Regulations 2006. But the respondent did not purport to exercise discretion under Regulation 17(4) and the parties proceeded on a common understanding that what was in issue in this appeal was the Secretary of State's anterior decision not to recognise the claimant as an EFM.
17. The Tribunal in Sala held that such a decision is not an appealable decision as it does not meet the definition of an EEA decision in Regulation 2(1) which is that the decision "concerns" a person's entitlement to be issued with a residence card, whereas deciding that a person is not an EFM is not a decision which concerns his entitlement to be issued with a residence card. It seems to me that the contrary is arguable, and that the rationale for the decision is in conflict with some of the reasoning of the Tribunal in earlier cases such as Moneke.
18. The contrary argument has the merit of not driving the claimant from the judgment seat, and as I am able to decide this appeal in a way which reaches the same outcome (dismissal), I decline to follow Sala.
Notice of Decision
The decision of the First-tier Tribunal was vitiated by a material error of law and accordingly the decision is set aside and the following decision is substituted: this appeal under the Regulations 2006 is dismissed.
I make no anonymity direction.

Signed Date

Deputy Upper Tribunal Judge Monson 24 October 2016

TO THE RESPONDENT
FEE AWARD

As I have dismissed this appeal, there can be no fee award.

Signed Date

Deputy Upper Tribunal Judge Monson 24 October 2016