Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/15080/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 8 November 2016
On 14 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE A M BLACK

Between

A C
(ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondents

Representation:
For the Appellant: Mr D Balroop, Counsel
For the Respondents: Mr K Norton, Senior Presenting Officer

DECISION AND REASONS
Anonymity order
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269), we make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original Appellant or his wife. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.
1. The appellant is a citizen of the Ivory Coast who appealed against the decision of the respondent on 31 March 2015 to refuse her application for a permanent residence card pursuant to The Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations 2006"). Her appeal was decided by First-tier Tribunal Judge J Bartlett ("the FTTJ") who dismissed it in a decision promulgated on 14 April 2016.
2. No anonymity direction was made in the First-tier Tribunal but, given my references to the appellant's claim to have been subjected to domestic violence, such a direction is appropriate.
3. Permission to appeal was granted by Upper Tribunal Judge Kamara on 5 October 2016 as follows:
"2. In essence, the poorly drafted grounds appear to disagree with the judge's conclusion that the appellant was not entitled to claim retained rights of residence because she as not married to her EEA-national husband.
3. Whilst the grounds discuss discrimination in the treatment of unmarried partners under the Regulations, I consider the following to be an obvious point. It is arguable, in view of what is said in Regulation 7(3) of the EEA Regulations 2006 regarding an extended family member who has been issued with (inter alia) a residence permit being treated as a family member, that the judge erred in concluding that the said regulations "do not provide for retained rights of residence for extended family members."
Thus the appeal came before me today.
4. Mr Balroop, for the appellant, submitted that this had been a standard Regulation 15(1)(f) application, the domestic violence having occurred after the date of application and before the appeal hearing. The evidence of domestic violence was not challenged at the hearing (not least because there was no HOPO present). He submitted there should be "equality of treatment between the Immigration Rules and the EEA Regulations". He noted there was no provision in the Regulations for the breakdown of a durable relationship, unlike the breakdown of a marriage. The appellant and her partner had been together for eight years. If the Immigration Rules had been applied, the appellant would have been granted leave to remain. This appellant should be granted a similar "remedy" to that she would have received under the Rules.
5. Mr Norton referred to Sala (EFMs: Right of Appeal) [2016] UKUT 00411 but accepted that it had limited relevance in view of paragraph 79. The appellant would be treated as a family member for as long as she qualified under Regulation 7(3) by reference to Regulation 8. The evidence before the FTTJ was that the relationship had broken down; there was no provision in the Directive for further leave to be granted by reason of domestic violence. Whilst the appellant's representative had identified a potential lacuna, this was not relevant to the application of the regulations or the directive; it was a matter which could be raised, if appropriate, in the event of a removal decision being made at some stage in the future.
Findings
6. As is stated at [8] of the decision, "it is common ground that the appellant's relationship with an EEA national broke down in January 2015. It is also common ground that the appellant was not married to the EEA national and therefore her rights arose from a claim to being [sic] an extended family member by virtue of being in a durable relationship". Given the terms of Regulation 7(3) this was appropriate.
7. The FTTJ then went on to say at [9]:
"The EEA Regulations are clear and they do not provide for retained rights of residence of extended family members. I find that this means when a relationship between the appellant and EEA national broke down her rights of residence rights were lost. The appellant cannot benefit from retained rights and as her relationship with the EEA national has broken down, unfortunately for her, she cannot fall within the EEA Regulations."
Whilst this paragraph is unclear and difficult to follow, the FTTJ's finding that the appellant cannot benefit from the EEA Regulations is correct. Indeed the appellant did not then and does not now assert the contrary. Thus the finding of the FTTJ reflects the only possible outcome of the appeal.
8. I have not been provided with cogent argument to support the proposition that the respondent should have granted the appellant leave to remain outside the EEA Regulations. As the respondent has pointed out in the reasons for refusal, it is open to the appellant to make a charged application on human rights grounds. There was no obligation on the FTTJ to consider the matter on human rights grounds, given the guidance in Amirteymour & Ors (EEA appeals; human rights) [2015] UKUT 466 (IAC) and the lack of a removal decision by the respondent.
9. For these reasons, the decision of the FTTJ contains no material error of law.
Decision
10. The decision of the First-tier Tribunal did not involve the making of a material error on a point of law.
11. The decision and reasons of the First-tier Tribunal are not set aside.

A M Black
Deputy Upper Tribunal Judge Dated: 11 November 2016