Tribunal decisions

The decision

IAC-FH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/21867/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 January 2017
On 06 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HANBURY

Between

the Secretary of State for the Home Department

Appellant
and

Anuradha Bhathiya Ruwan Kumara Mankotta Kankanamalage
(ANONYMITY DIRECTION NOT MADE)

Respondent

Representation:

For the Appellant: Mr Jarvis, a Home Office Presenting Officer
For the Respondent: Mr Hossain, a solicitor

DECISION AND REASONS

Introduction

1. In this decision, the parties will continue to be referred to by their designations before the First-tier Tribunal (FTT). The present appeal is by the Respondent against First-tier Tribunal Judge Aujla's ("the Immigration Judge's") decision promulgated on 1 August 2016. In his decision, the Immigration Judge allowed the Appellant's appeal against the Respondent's decision to refuse to grant a residence card under regulation 17 of the Immigration (European Economic Area) Regulations 2006 (the 2006 Regulations).

Background

2. The appellant is a citizen of Sri Lanka born on 11 November 1979 who entered the UK as a student. He began a relationship with Ms Zsusanna Kosan ("the Sponsor"), a Hungarian citizen, in about 2013. The appellant had been married previously, but that marriage was subject to a grant of a decree absolute in May 2016. It is not accepted by the Respondent that the Appellant had settled into a durable relationship with the Sponsor. The sponsor claims to have been exercising Treaty rights in the UK under the 2006 Regulations. The appellant claimed to be an "extended family member" of the Sponsor within the meaning of regulation 8(5) of those regulations. The Respondent advised the Appellant of his right to appeal her decision under regulation 26 of the 2006 regulations. The Immigration Judge allowed the Appellant's appeal.

3. The appeal to the Upper Tribunal (the UT) is on two grounds, one of which is not raised in the grounds of appeal. The first ground was raised orally by Mr Jarvis. He relies on the case of Sala (EFMs: Right of Appeal) [2016] UKUT 00411 (IAC) (Sala), a decision of Vice-President Mr Ockleton. I allowed him to do so because the hearing in the case of Sala only concluded on 7 June 2016, whereas the appeal in this case was lodged on 9th August. I thought it right to given the Respondent an opportunity to raise that ground as it went to the issue of jurisdiction. If the argument was correct, it would therefore have the effect of rendering the appeal to the FTT, effectively, a nullity. Mr Hossain did not object to the UT hearing that argument. It was decided in Sala that there is no statutory right of appeal against the respondent's decision to refuse a residence card to a person claiming to be an extended family member.

4. Mr Jarvis's second ground was that in there was no power for the FTT to "allow" the appeal. The extent of the Immigration Judge's powers were limited to requiring the Secretary of State to exercise her discretion, possibly with a recommendation that she grants the Appellant the residence card he seeks having considered all the relevant facts. This submission follows from a leading case of Ihemedu (OFMs meaning) [2011] UKUT 00340 (IAC) which involved an analysis of the Citizens Directive 2004 and the 2006 Regulations. The Directive regulates the status of family members from countries to which that directive applies. In the context of an application by an "extended family member" it was necessary to make the point that if an application is made, it gives the Secretary of State a discretion to issue a residence card under Regulation 17 of those Regulations. If the Secretary of State has not yet exercised that discretion, the most an Immigration Judge can do is to allow the appeal to the extent that he remits the matter back to the Secretary of State for her to make a fresh decision.

5. I also heard submissions from Mr Hossain, who submitted that a large amount of evidence was supplied to the FTT. He pointed out that the appellant and the sponsor had lived together for three years and that they would face significant inconvenience because of the delay that would follow, if the Respondent's appeal were to succeed and the decision of the FTT was set aside. Their relationship had advanced to the point where they were ready to get married. I was invited by Mr Hossain to direct the Secretary of State to make a fresh decision. However, I understood Mr Hossain to accept that Sala was, at least, a persuasive authority on this Tribunal. It seemed to follow from that concession that, at least to the extent that the FTT lacked jurisdiction, I had to allow the respondent's appeal.

Conclusions

6. Having carefully considered the submissions made, it appears appropriate to afford the case of Sala some weight, whether or not it is binding on the Tribunal. It is at least persuasive authority that the Immigration Judge lacked any jurisdiction to determine the appeal before him. I am aware that Sala is being appealed to the Court of Appeal and it may be that further guidance will be provided in due course. In the meantime, I have concluded that, based on the reasoning in that case, there is no statutory right of appeal against the decision of the Secretary of State relating to an extended family member. That is an absolute bar to the appeal before the First-tier Tribunal. Therefore, although it was not raised in the grounds of appeal, I am prepared to accept Mr Jarvis's submission that I should follow the case of Sala unless and until the Upper Tribunal is told that that decision is wrong.

7. The other ground of the appeal may become relevant if Sala is found to have been wrongly decided. Accordingly, I now turn to consider this ground. Based on the case of Ihemedu it is not open to an Immigration Judge for the First-tier Tribunal simply to "allow the appeal under the EEA Regulations". It is clear that this was an application by an extended family member. The correct course was to find that the decision was not in accordance with the law and to direct the Secretary of State to make a fresh decision having regard to the evidence. I understand that as a result of this hearing this is now what is likely to occur as none of the Immigration Judge's fact findings are impugned before the UT. There was an additional ground of appeal on human rights grounds. In so far as Article 8 of the European Convention on Human Rights ((Article 8 of the ECHR) was raised, the Immigration Judge went on to consider this argument at pargraphs 17 et seq of her decision. It has been held that the EEA Regulations incorporate all considerations including those that would otherwise arise under the ECHR and therefore there is no need to separately consider the Appellant's protected human rights.

8. I am persuaded by Mr Jarvis, having considered this further point, that it is not open to me to allow his appeal but then direct the Secretary of State to make a fresh decision. If I allow the Respondent's appeal, the principal basis of that appeal is that there is no jurisdiction before the First-tier Tribunal for the Immigration Judge to hear the appeal in the first place, and it is therefore necessary to set aside that decision in its entirety.

Notice of Decision

9. My decision therefore is that I allow the respondent's appeal against the decision of the First-tier Tribunal. I find a material error of law in the sense that the First -tier Tribunal lacked jurisdiction. I also find that there was an error of law in the direction made by the FTT in that it should have been limited to a direction to the Secretary of State to exercise her discretion and not simply to allow the appeal. Accordingly, my decision is that I allow the respondent's appeal against the FTT's decision which is set aside.

10. No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Hanbury

TO THE RESPONDENT
FEE AWARD

As I have set aside the decision of the FTT it follows that the fee award should also be set aside and there will be no fee award.

Signed Date

Deputy Upper Tribunal Judge Hanbury