Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/19120/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 31 October 2016
On 15 November 2016

Before

UPPER TRIBUNAL JUDGE PERKINS

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Huntley [R]
(ANONYMITY DIRECTION NOT Made)
Respondent

Representation:
For the Appellant: Mr S Whitwell, Home Office Presenting Officer
For the Respondent: No appearance

DECISION AND REASONS
1. I see no need for and do not make any order restricting publication about this case.
2. The respondent, hereinafter "the claimant" had not appeared before me at about 11:10 am when it was convenient to hear the appeal. I had a letter from his former solicitors informing the Tribunal that they were not in funds and that they wished to come off the record. They had tried to find alternative representation but had not been able to do so. The letter referred expressly to this hearing on 31 October 2016. It follows that the claimant clearly knew about the hearing and, in the absence of any application or even explanation for his absence I decide to continue with the hearing in his absence.
3. This case came before me as an appeal by the Secretary of State against the decision of the First-tier Tribunal allowing the claimant's appeal against a decision refusing him leave to remain as the partner of an EEA national exercising treaty rights.
4. The case came before me on 27 June and I gave an extempore judgment finding that there was an error of law in the First-tier Tribunal's decision. I was concerned at that the point that the claimant had told me that he was no longer in a relationship with the person who had to be his partner in order to stand any chance of satisfying the requirements of the Rules. As I explained in my judgement following the hearing on 27 June, the claimant was not entirely well and had some problems with mental health about which he was entirely straightforward. I was particularly anxious not to disadvantage him unfairly by reason of his general condition.
5. I regret that my extempore judgment was not promulgated until September. By then we had the benefit of the decision of this Tribunal in the case of Sala (EFMs: right of appeal) [2016] UKUT 00411 (IAC) which establishes, at least in the view of the Vice President and Upper Tribunal Judge Grubb sitting together, that there is no right of appeal in cases such as this because the decision requires an element of discretion by the Respondent which take the case out of the rules relating to appeals.
6. I am not being disrespectful when I say that the decision in Sala might be thought surprising because it is clear from the judgment that the Tribunal did not reach the conclusion that it expected to reach when it first considered the point. Nevertheless it is a decision that I intend to follow unless, perhaps, I had the benefit of very persuasive argument urging me to reach a contrary conclusion.
7. Although I found an error of law I did not finally dispose of the appeal and I find I can therefore retract what I said when I gave my reasons. I append hereto my already promulgated decision that the First-tier Tribunal erred in law but I accept Mr Whitwell's submission that, following the decision of the Tribunal in Sala, there was no right of appeal to the Tribunal and therefore the decision to do anything with the appeal has to be set aside and substituted with a ruling that there is no right of appeal.
8. I am aware that the decision in Sala is controversial. I make the point briefly that if I had had to decide on the evidence before me today the merits of the appeal I would have dismissed it because there is insufficient evidence that the claimant is in a qualifying relationship. It was his own evidence that put the matter into doubt and he is not here to remedy it.
9. It follows therefore that my final decision is a decision setting aside all that has gone before because there is no jurisdiction in the Tribunal to entertain the appeal, but there is also a finding that if there was jurisdiction I would have dismissed the appeal
10. For all these reasons I rule there is no jurisdiction to entertain the appeal.

Notice of Decision
11. The decision of the Firs-tier Tribunal is set aside because the Tribunal had no jurisdiction to hear the appeal.

Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 14 November 2016

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/19120/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 27 June 2016

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Before

UPPER TRIBUNAL JUDGE PERKINS

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Huntley [R]
Respondent

Representation:
For the Appellant: Mr N Bramble, Home Office Presenting Officer
For the Respondent: In person

REASONS FOR FINDING ERROR OF LAW AND DIRECTIONS
(1) This is an appeal by the Secretary of State against the decision of the First-tier Tribunal allowing the appeal of the Respondent, hereinafter "the claimant", against the decision of the Secretary of State refusing the claimant leave as the partner of an EEA national exercising treaty rights.
(2) The First-tier Tribunal Judge was criticised in the grounds, and permission to appeal was given, for exercising discretion on findings of fact before the Secretary of State had had an opportunity to consider them. This is, I know, a mistake that is very easy to make. However, Mr Bramble pointed out very fairly and properly, albeit to my slight personal embarrassment, that that it not quite what has happened here.
(3) Here the Secretary of State has considered the point. The problem is the Judge has not. The Judge has not exercised any discretion but just decided that the appeal should be allowed because of the findings of fact. He has not appreciated that there was an extra step. This might seem a little bit pedantic and it is the sort of error that could often be corrected simply but there is a complicating factor here. The claimant, perfectly candidly and without in any way being "caught out", accepts that he does not presently live with the person identified as his partner. This admission opens up a very real doubt about whether that person is in fact a partner within the meaning of the Rules at all.
(4) The claimant has asked for an adjournment. He is a person who has suffered from some sort of mental ill-health. He is not ashamed of that nor should he be. He was quite content for a note to be read out in the hearing room which shows that he has had treatment and he is now on long-term medication and which, in broad terms, is making him better. However he is somebody who, if not strictly "vulnerable", does, in my judgment, need particular care. I am anxious to ensure that he does feel that is being bamboozled in any way.
(5) Although I am satisfied that the appeal should be allowed because the Judge's work is incomplete I do not propose to complete that work today but to give the claimant an opportunity to come before me again with further evidence if he has got it, explaining his present circumstances to see if he does in fact comply with the Rules.
(6) Mr Bramble suggested that the appeal should remain in the Upper Tribunal because this is a new development rather than a fundamental failure by the Secretary of State and, given the claimant's mental condition, it is more than ordinarily important that the case is decided by the same judge reasonably quickly. I see much sense in that and I therefore direct the case to be brought before me as soon as is reasonably practical. Standard directions to apply about serving further evidence. They are set out below.
(7) The claimant has told me that he will be in a position to fund solicitors and does expect to be represented on the next occasion and it is partly because of that that I have adjourned the case. There is more work to be done here and it is in his best interests to co-operate with his solicitors and let them help him do their job.
DIRECTIONS
(8) If the claimant wishes the Upper Tribunal to consider evidence that was not before the First-tier Tribunal, that evidence (including any witness statement), must be filed with the Upper Tribunal and served on the respondent together with the notice required by rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008, indicating the nature of that evidence and explaining why it was not submitted to the First-tier Tribunal not later than 7 days before the day listed for hearing.

Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 26 September 2016