Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/18981/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7 September 2016
On 14 September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HILL QC

Between

MUHMMAD MIRAZUR RAHMAn
(anonymity direction NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Islam, London Law Associates
For the Respondent: Mr D Clarke, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal from the decision of First-tier Tribunal Judge Samimi promulgated on 4 February 2016. The grounds of appeal are extremely prolix but in submissions before me the basis of the appeal has much reduced so as to focus on the single issue of whether the Judge had jurisdiction to hear the appeal and, in particular, whether there was a right of appeal in the particular factual circumstances pursuant to the Immigration (European Economic Area) Regulations 2006.

2. The appellant is a national of Bangladesh. He made an application for a residence card in reliance on the provisions of Regulation 17(1) as a family member of an EEA national exercising treaty rights.

3. The respondent, in a refusal letter dated 20 April 2015, considered the evidence supplied in relation to the claimed relationship with the sponsor, Sunni Mostofa, and came to the conclusion that insufficient evidence had been submitted to demonstrate a dependency prior to the appellant entering the United Kingdom.

4. The respondent therefore rejected the claim and stated at the top of page 3 of the letter:

"As your entitlement to rely on the provisions of the Immigration (European Economic Area) Regulations 2006 cannot be established there is no right of appeal against this decision. However redress through other legal channels may be possible and it is recommended you seek legal advice should you choose to do so."

There follows substantive text indicating other bases on which the appellant might wish to pursue a future claim.

5. Notwithstanding the assertion that there was no right of appeal, the appellant nonetheless lodged an application seeking permission to appeal which was considered administratively by a Judge of the First-tier Tribunal. The note on file which I have read this morning indicates that the Judge concluded that the matter should proceed. The question of the validity of the proceedings should be determined at the hearing. It is recorded that the respondent says there is no right of appeal under Regulation 26B(2) and the appellant says that he has submitted copies of birth certificates etc. The respondent's contention is that that is not adequate. The note concludes by saying that the Tribunal Judge can determine the validity issue.

6. In due course the matter came before the First-tier tribunal for determination. At the time there were two appellants but only one has chosen to pursue the matter in the Upper Tribunal. The decision of the Judge is extremely brief. It runs merely to two substantive paragraphs, the second of which reads as follows:

"The refusal letter provides that there are no removal directions in this case and if the appellants wish to make a separate application under Appendix FM of the Rules or in accordance with paragraph 276ADE they have to make a separate application which in turn would give rise to a separate right of appeal. The appellant now wishes to proceed in accordance with Article 8 of the ECHR. The refusal letter has not considered the appellants' Article 8 rights under Appendix FM or paragraph 276ADEC or outside the Rules. There is no removal direction in this case and I find there is no jurisdiction to hear the appeal before me. The respondent has maintained that the appellant has no right of appeal."

7. It seems to me (and is fairly conceded by Mr Clark on the respondent's behalf) that the Judge did not turn her mind to the question of whether there was in fact a right of appeal which, under the Regulations, is a mixed matter of fact and law.

8. Part 6 of the Regulations deals with appeals. Appeal rights in particular are dealt with in Regulation 26. After some discussion between legal representatives this morning we have established that the text then current is as follows in relation to Regulation 26(3).

"If a person ... claims to be a family member who has retained the right of residence or the family member of a relative on an EEA national he may not appeal under these Regulations unless he produces

(a) a passport and
(b) either
(i) an EEA family permit
(ia) a qualifying EEA state residence card
(ii) proof that he is the family member or relative of an EEA national, or
(iii) in a case of a person claiming to be a family member who has retained the right of residence, proof that he was a family member of the relevant person."

9. Mr Islam takes me to a number of documents which were before the First-tier Tribunal although not referred to in the decision. Those documents include birth certificates for the appellant, his mother and the sponsor, and in addition the passport of the sponsor. In my opinion the judge was under a duty when considering whether there is jurisdiction to entertain the appeal to assess the evidence and to consider whether that evidence triggers the right of appeal under Regulation 26(3). Her oversight in not doing so is a material error of law and it must follow that her decision on jurisdiction be set aside.

10. Both Mr Clarke and Mr Islam agree that convenience and expedition militate in favour of the jurisdiction decision being remade by me in the Upper Tribunal rather than remitted to the First-tier Tribunal.

11. Mr Clarke makes the short submission that the fact that the birth certificates are photocopies and not originals mean that the burden of proof was not been discharged by the appellant. I reject that. I am of the view that the witness statement of the appellant coupled with those copy documents is sufficient factually to bring this matter within the ambit of Regulation 26(3) in relation to the issue of family member.

12. Accordingly as a matter of fact and law, the First-tier Tribunal does have the jurisdiction to entertain, and in due course determine, the appeal.

13. Having made that determination, the proper order which necessarily follows is that this matter is remitted to the First-tier Tribunal which then proceeds to determine the appeal on its merits. As this appeal has turned exclusively on jurisdiction, it would not be appropriate for me to make any comment on the underlying substantive appeal.

Notice of Decision

Having found there to be an error of law on the issue of jurisdiction, the decision of the First-tier Tribunal is set aside and remade as follows. On the basis of the information available, there was a right of appeal to the First-tier Tribunal under Regulation 26(3) of the Immigration (European Economic Area) Regulations 2006 and, in the circumstances, the First-tier Tribunal had jurisdiction to hear and determine the appeal on its merits.

The matter is therefore remitted to the First-Tier Tribunal for the appeal to be heard and determined.

No anonymity direction is made.

Signed Mark Hill Date 13 September 2016

Deputy Upper Tribunal Judge Hill QC