Tribunal decisions

The decision

The Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/19413/2015

THE IMMIGRATION ACTS

Heard at Liverpool
Decision & Reasons Promulgated
On 19th January 2017
On 23rd January 2017

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL FARRELLY

Between

Mrs VANESSA DE OLIVEIRA ARAUJO FIGUEIRA
(NO ANONYITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

An Anonymity Direction is NOT made. There has been no request and there is no apparent need.
Representation:

For the Appellant: Mr. F. Aziz of Oakmont Law, Solicitors.
For the Respondent: Mr. G. Harrison, Home Office Presenting Officer.

DECISION AND REASONS

Introduction

1. Although it is the respondent who is appealing in these proceedings, for convenience, I will continue to refer to the parties as in the First-tier Tribunal.

2. The appellant is a national of Brazil born on 15th June 2010. She was issued with a residence card confirming her right to reside in the United Kingdom by virtue of Treaty rights. The card was valid from 12 November 2010 until 12 November 2015. It was issued on the basis of she was the spouse of a European national, Mr. Alves Genoese, who was exercising Treaty rights.

3. This residence card was revoked under regulation 20(2) of the Immigration (EEA) Regulations 2006(hereinafter referred to 2006 regulations) because she and her husband divorced as evidenced by a certificate dated 24 July 2013. This meant she was no longer his family member.

4. On 12 January 2005 she applied for a further residence card. This was on the basis she was the unmarried partner of an Italian national, Mr Luca Laudani, who was exercising Treaty rights. As an unmarried partner he was classified as an extended family member under regulation 8 rather than an immediate family member.

5. Her application was refused on 11 May 2015. Under regulation 8(5) it was necessary for her to demonstrate that she was in a durable relationship with her partner: this is generally taken to mean two years cohabitation. The respondent found that there were insufficient proofs to demonstrate the durable relationship.

The First tier Tribunal.

6. The appeal was heard by Judge of the First-tier Tribunal Foudy on 10 February 2016 at Manchester. The judge was satisfied they had been cohabiting from 2011 and that Mr Laudani was exercising Treaty rights. The judge then found she was entitled to a residence card and allowed the appeal.

The Upper Tribunal.

7. The respondent applied for permission to appeal to the Upper Tribunal because the issue of a residence card to an extended family member is at the discretion of the respondent pursuant to regulation 17(4) of the 2006 regulations. Consequently, the finding of a durable relationship was not conclusive and meant the appeal could only be allowed to the extent of the matter being remitted to the respondent for the exercise of her discretion (see Ihemedu (OFM's -meaning) Nigeria [2011] UKUT 00340.

8. Both representatives were in agreement that it was a material error of the law for the judge to allow the appeal outright. Instead, the judge should have referred the matter back to the respondent for the exercise of her discretion.

9. However, a more fundamental issue has following of the decision in Sala EFM's : Rights of Appeal [2016 ]UKUT 00411. That decision does not change the law but is declaratory as to its meaning. It concluded there was no right of appeal in respect of a refusal to issue a residence card to an extended family member under the 2006 regulations. The focus in that appeal was the definition of an "EEA decision" in regulation 2(1)(b). This refers to a person's entitlement (my emphasis) to documentation. The point was that whilst there is an entitlement for an immediate family member the issue of documentation in relation to an extended family members is discretionary. Therefore, there was no entitlement as of right.

10. Paragraph 79 of that decision states:

... We agree that a third country national who has been issued with a residence card on the basis he is an EFM because of a `durable relationship 'should be "treated as a family member "by virtue of regulation 7(3)... Any appeal against the decision made under the EEA regulations 2006 by such a person, including a refusal to renew the card would on the face of it, fall within regulation 26 (1) and (3) as an appeal by "a person ...[who] claims to be a family member ".

11. Mr. Aziz argued that the appellant could benefit from this because she previously had been issued with a residence card. The difficulty with this argument, as Mr Harrison pointed out, is that the residence card related to her marriage to her former husband.

12. If the wording of regulation 7 (3) is considered then Mr Harrison's proposition is correct. It provides

... A person who is an extended family member and has been issued with ... a residence card shall be treated as a family member of the relevant EEA national ?

Notably, the reference is to `the relevant EEA national '.

13. In the application under appeal there was no earlier issue of a residence card in relation to the relevant EEA national, namely , Mr Luca Laudani.The Sala decision appears to be behind the amendment to the definition of "EEA decision" in the Immigration European Economic Area Regulations 2016 which specifically says in the new regulation (2)(1) that an EEA decision does not include a decision to refuse to issue a document under regulation 18(4), namely, the issue of a residence card to an extended family member. Whilst these regulations do not come into force until 1 February 2017 they implement what has been established by Sala. The appellant's representative provided me with the respondent's guidance to its staff dated September 2016 which at page 17 states there is no right of appeal in respect of a refusal for an extended family member.

14. It is my conclusion therefore that this appellant has no right of appeal stop consequently, the First-tier Tribunal had no jurisdiction to determine the matter.

Decision

The decision of First tier Tribunal Judge Foudy allowing the appeal was a material error of law and cannot stand. This is because there was no jurisdiction to hear the appeal. I set the decision aside and substitute a decision that there was no valid appeal before the first-tier Tribunal

Deputy Upper Tribunal Judge Farrelly