IA/15851/2015

• Status of case: Unreported
• Hearing date: 12 Aug 2016
• Promulgation date: 19 Aug 2016
• Publication date: 2 Mar 2018
• Last updated on: 2 Mar 2018

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/15851/2015


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 12th August 2016
On 19th August 2016



Before

DEPUTY UPPER TRIBUNAL JUDGE CHANA


Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Ms Aster Tesfai Tedla
(ANONYMITY DIRECTION NOT MADE)
Respondent


Representation:
For the Appellant: Ms A Fijiwala, Home Office Presenting Officer
For the Respondent: Ms P Glass, Counsel


DECISION AND REASONS
1. The appellant is an Eritrean national born on 19th November 1978. She appealed against a decision of the respondent refusing her permanent residence in accordance with Regulations 10(5) and (6) and Regulation 15 of the 2006 Regulations.
2. First-tier Tribunal Judge C Greasley dismissed the appellant's appeal under the EEA Regulations but allowed it under Article 8 of the European Convention on Human Rights. The Secretary of State appealed against the decision on the grounds that the judge made a material misdirection in law and referred me to the case of Amirteymour & Ors (EEA appeals; human rights) [2015] UKUT 466 (IAC) that where no notice under Section 120 of the 2002 Act had been served and where no EEA decision to remove has been made, an appellant cannot bring a human rights challenge to removal in an appeal under the EEA Regulations.
3. Ms Glass on behalf of the appellant accepted that the judge did not have jurisdiction to consider Article 8 let alone allow the appeal under that Section. The appellant has not cross-appealed against the decision of the First-tier Tribunal Judge in respect of the EEA Regulations. It is clear from the reading of the decision that the judge has been under a misapprehension that the appellant was divorced from her spouse, who is an Italian national exercising his treaty rights in this country which is not the case.
4. At paragraph 6 the judge noted that the appellant did not supply evidence that the marriage was terminated through the production of a divorce certificate. The appellant is in fact not divorced but still legally married. In her application she said that she was living separately from her husband but at the moment they are living together. It would appear that the fact that the appellant said in her application that she is separated from her husband has misled the judge into thinking that she is divorced, which is why he was looking for a divorce certificate.
5. Given that there is no cross-appeal under the EEA Regulations my hands are tied and I have no jurisdiction to set aside the EEA decision for this mistake of fact. I will, however, state that it is clear from the submissions of Ms Glass that the appellant is still married to an Italian national who is exercising his treaty rights and upon another application being made to the Secretary of State, no doubt all these matters will be considered.
6. So the upshot is that there is an error of law in the decision in allowing the appellant's appeal under Article 8 because the judge had no jurisdiction to do so and I allow the Secretary of State's appeal.
Notice of Decision
The Secretary of State's appeal is allowed.
No anonymity direction is made.


Signed Mrs S Chana Date 18 August 2016

Deputy Upper Tribunal Judge Chana

TO THE RESPONDENT
FEE AWARD
No fee reward is made.


Signed Mrs S Chana Date 18 August 2016

Deputy Upper Tribunal Judge Chana