Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: ia/23602/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10 November 2016
On 04 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HANBURY

Between

IRFAN RAUF
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Saeed, Solicitor
For the Respondent: Ms Brocklesby-Weller, Home Office Presenting Officer

DECISION AND REASONS

Introduction and background

1. This is a slightly unusual case. The above appellant (the appellant) is a Pakistani national who was born on 18 April 1986. He first came to the UK as a Tier 4 student in 2011 but his leave was curtailed in 2013. He claims to have begun a relationship with Renata Bialowas, who was born on 13 April 1987 and is a Polish national (Ms Bialowas). On 3 September 2014 the respondent (who, although an appellant in the current proceedings will continue to be referred to as "the respondent") decided to remove the appellant following the curtailment of leave. The appellant sought a residence card on the basis of his relationship with Ms Bialowas, claiming that he was an extended family member within the EEA Regulations 2006 (2006 Regulations). Those Regulations of course give extended family members certain rights in relation to reside within the UK. Following the request for a residence card, which was refused on 9 June 2015, the appellant appealed against that refusal to the First-tier Tribunal.

2. The appeal came before Judge of the First-tier Tribunal Kainth (the immigration judge) sitting at Hatton Cross on 14 March 2016. His decision was promulgated on 31 May 2016. He decided, having heard appeals both by the appellant's partner Ms Bialowas, who was the first appellant in the First-tier Tribunal (FTT) proceedings, and the appellant to allow their appeals. Those appeals, against the respondent's decision, were simply allowed. No anonymity direction was made.

3. Shortly after that decision, Mr Ockelton, a Vice President of this Tribunal, sitting with Upper Tribunal Judge Grubb, heard an appeal at Field House on 7 June 2015 and 7 June 2016 which concerned very similar facts to this case. The panel decided (in Sala (EFMs - Right of Appeal) [2016] UKUT 00411 (IAC)) that an appellant who is refused a residence card as an extended family member (commonly known as an "EFM") under the 2006 Regulations did not have a right of appeal to the First-tier Tribunal under Regulation 26 of those Regulations. Regulation 26 of the 2006 Regulations gives a person a right of appeal in certain circumstances, for example, where the person claims to be in a durable relationship with an EEA national as is the case here. Regulation 17(4) of the Regulations provides that where the Secretary of State is satisfied that the person concerned is an extended family member then he must issue a residence card to that person.

The Hearing before the Upper Tribunal (UT)

4. At the hearing I was referred by Mr Saeed to Sala but he said that the ratio decidendi of the case (that there is no statutory right of appeal against the respondent's decision not to issue a residence card) did not apply in this case. He said in any event it was wrongly decided. The Directive 2004/38/EC (the Citizens Directive), which guarantees free-movement rights throughout the EEA, and the 2006 Regulations had to be determined in the light of the obligations on the respondent under Article 8 of the European Convention on Human Rights (ECHR). When those obligations were taken account of it lead to the conclusion that the decision of the FTT had been in accordance with the law.

5. Ms Brocklesby-Weller pointed out that there had been no decision to remove in this case and that, in any event, it had been made clear by the Court of Appeal in TY (Sri Lanka) [2005] EWCA Civ 1233 that Article 8 had been incorporated effectively into the 2006 Regulations. Therefore, Article 8 did not arise as a separate ground of appeal in these cases. She relied on the case of Sala as having been correctly decided. She said that extended family members were in a different category from family members. As it happens in this case she had not, or her principal had not, sought to appeal the decision in relation to the family member, that is the first appellant-Ms Bialowas. The error that I had to deal with was the fact there was in fact that the First-tier Tribunal had no jurisdiction to hear this appeal. Accordingly, Ms Brocklesby-Weller invited me to find as a fact that there was no jurisdiction to determine the appeal. In the circumstances, I should allow the Secretary of State's appeal on the grounds of want of jurisdiction. Further, or alternatively, she said that in fact it was wrong of the Immigration Judge to simply allow the appeal because the extent of the jurisdiction on an appeal was to make a recommendation to the Secretary of State that she grants a residence card.

6. Permission to appeal was given by Judge of the First-tier Tribunal Andrew on 4 October 2016. Judge Andrew referred to the case of Sala which had not been referred to in the grounds of appeal. Pausing there, I should point out that the grounds of appeal were actually just a day or two before that decision would have been published. The two grounds were highlighted by Judge Andrew, the first that the decision by the Secretary of State was one to refuse a residence card, not to remove, and in those circumstances it was wrong for the judge simply to allow the appeal. Secondly, there was the Sala point, which seemed to be a, so to speak, "knockout blow" as far as appeal rights were concerned.

Conclusions

7. I have carefully considered the arguments for both sides and I conclude that, as the case of Sala is a decision of a Vice President of this Tribunal, it at least persuasive before the UT. I see no reason to depart from the conclusions of the Vice President in that case. Sala appears to be properly reasoned and involved similar facts to those in this case. Accordingly I find that there was in fact no right of appeal to the First-tier Tribunal by this appellant.

8. This does not necessarily mean that the appellant has no right to be in the UK. I have been told that the decision of the FTT to allow Ms Bialowas' appeal against the respondent's decision to remove her from the UK, has not been challenged by any further appeal. Since the FTT appear to have accepted the appellant's relationship with Ms Bialowas, the first appellant in the hearing before the FTT, it may well be that whatever the appellant's appeal rights he has a right to remain in the UK. This would need to be recognised by the grant of a residence card. Ms Bialowas is an EEA national from Poland, who is, presumably, exercising Treaty rights in the UK. It appears no longer to be challenged by the respondent that she resides with the appellant.

9. In any event, I find that the Immigration Judge erred in his analysis of the Regulations by not correctly applying Regulation 17. The correct direction for him to make was to allow the appeal to the extent that a direction was made for the Secretary of State to issue a residence card. Of course that only arises if the appeal was one which he had jurisdiction to deal with. Unfortunately, it appears based on the case of Sala by which I feel bound to follow, that as a matter of law the FTT had no jurisdiction to hear the appeal.

Notice of Decision

10. I find that there was a material error of law in this case. My decision in this case is that I allow the respondent's appeal against the decision of the First-tier Tribunal in relation to this appellant on the grounds of want of jurisdiction. In any event, I allow the respondent's appeal on grounds that there was an error of law in the decision of the First-tier Tribunal by allowing the respondent's appeal. I substitute the decision of the UT which is to dismiss the appellant's appeal to the First-tier Tribunal.

11. No anonymity direction was made by the FTT and I make no anonymity direction.

Signed Date

Deputy Upper Tribunal Judge Hanbury

TO THE RESPONDENT
FEE AWARD

I have dismissed the appellant's appeal and therefore there can be no fee award.

Signed Date

Deputy Upper Tribunal Judge Hanbury