Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/16870/2015

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 14th December 2016
On 29th December 2016

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

Mr Sohail Nisar
(Anonymity Direction Not Made)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellants: Mr J Wells Fast Track Immigration Services
For the Respondent: Mr S Whitwell, Home Office Presenting Officer

DECISION AND REASONS

The Appellant
1. The appellant appealed, with permission granted by First-tier Tribunal Judge Osborne, against the decision dated 19th January 2016 of First-tier Tribunal Judge A Wilson allowing his appeal. The appellant had appealed a decision of the Secretary of State dated 21st April 2015 to refuse his application for a residence card under Regulation 7 of the Immigration (European Economic Area) Regulations 2006. Although First-tier Tribunal Judge Wilson had allowed the appeal he had only allowed it to the limited extent that the matter should be remitted back to the Secretary of State for reconsideration. The judge did not allow the appeal outright. That, course of action, according to the appellant was an error of law as the appeal, in the circumstances, should have been allowed outright. The judge erred in law by finding that there existed a discretion open to the Secretary of State.
2. The history to this appeal was that the refusal dated 21st April 2015 of the Secretary of State was based on finding that the appellant's marriage to his Romanian national partner, Olga Neagoe, was a sham. At the hearing before the First-tier Tribunal it was submitted by the representatives that none of the reasons given by the Immigration Officers and therefore in the Secretary of State's refusal stood up to scrutiny. The assertion that the answers in interview appeared well rehearsed was contradicted by the fact that the encounter at the registry office was a surprise visit to the wedding by the immigration officers.
3. The judge agreed that the Secretary of State had failed to discharge the burden of proof and in line with Papjorgji (EEA Spouse - marriage of convenience) Greece [2012] UKUT 38, allowed the appeal.
4. At the hearing in the Upper Tribunal before me it was agreed by Mr Whitwell on behalf of the Secretary of State at the hearing before the Upper Tribunal that the judge was indeed in error in his course of action in remitting the matter back to the Secretary of State for a consideration of the circumstances. Under Section 17(1) the Secretary of State must issue a residence card to a person who is not an EEA national and is the family member of a qualified person or of an EEA national with a permanent right of residence under Regulation 15 on application and production of (a) a valid passport and (b) proof that the applicant is such a family member.
5. The judge at paragraph 11 of his decision recorded
'I am therefore satisfied that the parties are married, the Registry Office ceremony did go ahead, the decision of the Respondent to refuse the application was therefore wrong in law. The matter therefore returns to the Secretary of State to make a lawful decision. The issue of a residence card does require the exercise of discretion by the Respondent. In exercising that discretion no doubt the respondent will have regard to the full bundle of evidence lodged in support of the hearing asserting that all other matters under the European Regulations are satisfied. That is a matter for the Respondent to exercise her discretion on and is not a matter for me'.
6. The conclusion relating to the exercise of discretion was incorrect. As I have indicated and agreed by the parties before me, this was not a matter for the exercise of discretion by the respondent and the judge, on his findings, should have allowed the appeal outright.
7. The First-tier Tribunal Judge's decision was communicated to the Secretary of State but however, was not communicated to the appellant. Nor was it communicated to the appellant's solicitors. In both cases it would appear that the Tribunal sent the decision to old addresses. It is apparent from the file that the Tribunal sent the decision to the former address of the appellant and the former address of the solicitors.
8. The next occurrence is that the Secretary of State, following receipt of the First-tier Tribunal decision, proceeded to re-examine the circumstances of the appellant and on 15th March 2016 made a decision to refuse the application. No issue was taken with the appellant's sponsor exercising treaty rights, in the first decision of April 2015 by the Secretary of State. HMRC tax details and payslips for the sponsor were included in the bundle before the First-tier Tribunal and the judge directed the Secretary of State to consider that evidence. Nonetheless the Secretary of State wrote to the appellant on 4th February 2016 requesting further information. It appeared to be accepted that this letter was also directed to the wrong address. Neither the appellant nor the legal representatives received the letter requesting further information.
9. The Secretary of State again refused the appellant's application this time on 15th March 2016. That decision was also sent to the wrong address. By this time the appellant had still not received the Tribunal's decision. I note that despite a judge finding in January 2016 that the Secretary of State had not proved her case regarding the sham marriage, the Secretary of State, not two months later, still cited that as a reason for refusing the appeal as well as identifying that it had not been shown that the sponsor was exercising treaty rights. There was no reference in that decision letter of 15th March 2016 to any of the wealth of material included in the bundle before the First-tier Tribunal in January 2016 or the decision of the First-tier Tribunal Judge 19th January 2016,
10. The appellant's representatives attempted to appeal this second decision of March 2016 on 5th July 2016 (out of time) but an extension of time was refused by Tribunal (IAC) Caseworker Farrin on 18th August 2016 who appeared to think the addresses had not changed. That was an excluded decision. I can accept that the appellant and the solicitors both had changed addresses.
11. Undaunted, the legal representatives, accepting that there had been 'an unacceptable hiatus' had lodged, on 30th June 2016, an appeal against the decision of First-tier Tribunal Judge Wilson.
12. First-tier Tribunal Judge Osborne granted permission to appeal on 3rd November 2016, correctly in my view of the extenuating circumstances, against the decision of First-tier Tribunal Judge Wilson, noting that the decision was finally received by the representatives on 7th May 2016 and 'the representatives had already corresponded with the Respondent but received no response'. He added
'I have however considered the merits of this application simultaneously with the application to extend time. Having taken into account the merits and the unhappy administrative history suffered by this appeal, on balance time is extended and the application is admitted'.
and further
'In an otherwise careful, focused and well reasoned decision and reasons, it is nonetheless arguable that having found that the parties are genuinely married, the judge should have gone on to simply allow the appeal without referring the matter back to the Respondent to make a lawful Decision'
13. At the hearing before me, at which both the appellant and his sponsor wife attended, Mr Whitwell submitted that the second decision of the Secretary of State vitiated the first and that the Tribunal no longer had jurisdiction. I do not accept that proposition. There stands a decision of the First-tier Tribunal against which permission was granted and, in the circumstances, an extension of time permitted. It is unfortunate that the Tribunal refused an extension of time to appeal the second decision but the second decision of the Secretary of State cannot extinguish the first decision and cannot expunge the decision of the Tribunal. There was nothing further for the Secretary of State to consider following the decision of the First-tier Tribunal.
14. It is unfortunate that a further decision was made by the Secretary of State but it is clear that Regulation 17(1) and not 17(4) applied. It is also surprising that the Secretary of State proceeded to ignore the findings of the First-tier Tribunal Judge Wilson on the marriage and ignore the evidence which must have been submitted to her in January 2016 in relation to the sponsor exercising Treaty Rights. The decision of First-tier Tribunal Judge Wilson was effectively a declaration of the position of the appellants' rights under the Directive 2004/38/EC.
15. In the circumstances, having accepted that there is a valid grant of permission to appeal against the First-tier Tribunal decision issued on 15th January 2016, I conclude that Upper Tribunal does have jurisdiction. This is not a case where there was a grant of permission conditional on the extension of time. An extension of time was granted for permission.
16. I preserve the findings of the First-tier Tribunal Judge Wilson against which there has never been any challenge by the Secretary of State (save the further decision based on a lack of obtaining further evidence for the reason I have given). It was open to the Secretary of State to challenge that decision allowing the appeal on the facts but she did not. The second decision of the Secretary of State was made without addressing the finding in the decision of the First-tier Tribunal that the marriage was not a sham, without addressing the information regarding financial material within the bundle, and, after failing to write to the appellant at the correct address when seeking further information. I repeat that the decision of the First-tier Tribunal Judge is in effect declaratory of the appellant's rights under Regulation 7 and Regulation 14(2) of the Immigration (European Economic Area) Regulations 2006.
17. There was clearly an error of law, however, in the decision of the First-tier Tribunal Judge with respect to the issue of Regulation 17 of the Regulations, as the appeal should, on the findings, have been allowed outright. I remake the decision allowing the appeal outright.

Order
Appeal Allowed

Signed
Date 14th December 2016
Helen Rimington
Upper Tribunal Judge Rimington