Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: ia/24829/2015
ia/25256/2015
ia/25257/2015

THE IMMIGRATION ACTS

Heard at Bradford UT
Decision & Reasons Promulgated
On 28th September 2016
On 10th October 2016

Before

DEPUTY upper tribunal judge ROBERTS

Between

MA
IS
SEN
(ANONYMITY DIRECTION made)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Wilkins of Counsel
For the Respondent: Mrs Pettersen, Senior Home Office Presenting Officer

Anonymity

Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
An anonymity direction was made by the First-tier Tribunal. As the third Appellant is a minor, it is appropriate to continue that direction.

DECISION AND REASONS
1. This decision concerns the appeals of the three Appellants listed above. They have varying appeals to the Upper Tribunal but their appeals have been linked because of a central common theme.
2. They appeal against the decision of the First-tier Tribunal (Judge Bashir) promulgated on 27th April 2016 dismissing their appeals against the Respondent's decision to refuse their varying applications for the right to remain in the UK.
3. The First Appellant MA is a citizen of Pakistan (born 30th March 1990). He applied for a residence card as the extended family member (EFM) of the second Appellant IS, a Czech national who claimed that she was exercising treaty rights in the UK.
4. MA additionally made a claim to asylum. I record here that the substance of his claim to asylum is not an issue before me. I understand that he has a separate hearing of that claim already set down before the FtT. Nevertheless as will become apparent it is a matter to which I must give some attention and to which I will refer in the course of this decision.
5. The second Appellant IS (born 26th March 1979) is a citizen of the Czech Republic. She appeals the Respondent's decision to remove her from the UK, on the basis that she is not a qualified person exercising treaty rights under the EEA Regulations. In other words she is not employed as claimed and therefore has no right to remain in the UK.
6. The third Appellant SEN is the dependent minor daughter of the second Appellant. She too is a Czech national and conveniently her claim to remain stands and falls with that of her mother. The second Appellant whilst in the UK has now given birth to another child. The father of this child is the First Appellant MA. This child is not an Appellant so far as these proceedings are concerned.
7. The basis of the Respondent's refusal against the First Appellant (apart from the asylum claim) centred on the evidence of his claimed relationship with the Second Appellant. In order to establish a right as an EFM, the first Appellant needed to show that he and the second Appellant were in a durable relationship. The evidence before the FtT consisted of evidence of them undertaking an Islamic marriage (such a ceremony is not recognised as a valid marriage in UK law), their oral evidence that they lived together and a birth certificate showing that they have a child together. The child was born on 12th November 2015. The Respondent, accepts the paternity of the child. The date of the Respondent's refusal is 9th June 2015.
8. So far as the second Appellant was concerned, she was served with a decision notice to remove her on the basis that she is neither a qualified person, nor is she someone exercising treaty rights within the meaning of the EEA Regulations. The removal notice was served on her following an investigation by the Respondent. A similar decision was also served on her dependent child who is the third Appellant. The date of the Respondent's decision in both cases is the same date as the First Appellant's notice, the 9th June 2015.
FtT Hearing
9. When the Appellants' appeals came before the FtT, it found the evidence given by MA and IS unreliable. A note of several inconsistencies in their evidence was made and looking at those inconsistencies the judge found that she comprehensively disbelieved their accounts. She noted that there was a child of the relationship and noted other evidence including documentary evidence but nevertheless concluded that in the light of the discrepant evidence, the other evidence was not capable of outweighing it. She concluded therefore that the Appellants' evidence did not demonstrate on balance that they were in a durable relationship. The judge clearly sets this out in [24] and [25] of her decision.
10. Further, the judge found with reasons, that the second Appellant IS did not qualify as a person exercising treaty rights within the compass of Regulation 6 of the EEA Regulations 2006. The judge had regard to IS' claimed employment history and for reasons fully set out at [26] found that this claim not credible. The third Appellant's claim stands and falls with that of her mother.
11. The judge then went on to consider whether any of the Appellants could advance a case under Article 8 of the ECHR. She decided not. She noted at [31] and [32] that there were no compelling reasons shown, why a grant of leave should be awarded outside the Immigration Rules. She also took into account S.55 Borders Citizenship Immigration Act 2009.
12. I pause here to record that the judge was plainly in error to make the finding that she did at [31], regarding the first Appellant's asylum claim. It has always been the case that the asylum claim forms a separate and discrete matter. A separate hearing has been set down for that issue and indeed I was given to understand that the hearing of the first Appellant's asylum claim would take place shortly. (It may even have been concluded by the time this decision is promulgated).
13. Such an error however is not in my view material to the other issues before me. The judge simply had no right to determine an issue which was not before her. She erred in doing so and the decision she made in respect of the first Appellant's asylum claim is set aside. That matter will be heard, as I have indicated by the First-tier Tribunal as a completely fresh hearing altogether. I find that this error does not taint the separate and distinct findings made by the FtT in respect of the matters which are before me.
The UT - Error of Law Hearing
14. Following the FtT's dismissal of their appeals, the Appellants sought permission to appeal the FtT's decisions to the Upper Tribunal.
15. The grounds seeking permission, apart from taking issue with the FtT's decision to "dismiss" the first Appellant's asylum appeal, appear to take issue only with the judge's credibility findings in so far as they relate to the durability or otherwise of the relationship between the first and second Appellants. This is what the grounds focus on.
16. Before me Ms Wilkins appeared for the Appellants and Mrs Petterson for the Respondent. Following a discussion with the representatives about the terms of the grounds seeking permission, I indicated that so far as I could see there was no real challenge to the FtT's finding that the second Appellant is not exercising treaty rights, Ms Wilkins at this point sought permission to amend the Grounds of Appeal, to include a challenge to those findings. This I declined to give. Other than a general statement challenging the finding she could provide no real grounds for doing so. The second Appellant has been legally represented throughout these proceedings and clearly this is a matter upon which no instruction or issue has been raised.
17. Ms Wilkins' submissions therefore were confined to the grounds seeking permission although I did announce that I was satisfied that the judge had erred in "dismissing" the Appellants' asylum claim and that I had found this was not a material error. I did however acknowledge that my decision would reflect this and that she did have permission to ensure that the FtT was aware of this when the first Appellant's case comes for trial on the asylum issue.
18. Mrs Pettersen referred to her Rule 24 response which indicated that for some reason, the Respondent had not been served with the appropriate documentation prior to the hearing before me. Nevertheless she indicated she was prepared to proceed. She handed up the recently published Tribunal decision in Sala (EFMs: Right of Appeal) [2016] UKUT 00411 (IAC). She submitted that it would appear that Sala is authority for saying that the first Appellant had no statutory right of appeal against the Respondent's decision not to grant a resident card to him in any event. She submitted that there was no error disclosed in the FtT's decision requiring it to be set aside so far as the second Appellant is concerned. The second Appellant's appeal should be dismissed. The third Appellants appeal should be dismissed in line with that. The first Appellant's appeal should be marked 'no valid appeal'. His asylum claim would be dealt with in the way I set out in paragraph 13 above.
Consideration
19. The only matters put in issue before me, centre on the FtT's credibility findings concerning the durability or otherwise of the relationship between the first and second Appellants. I acknowledge that Mrs Pettersen's submission is that this matter is now not one that attracts a right of appeal. However I think it appropriate nevertheless to give full reasons for my decision so that if there is any further litigation there is a clear understanding of why I reached the decision I did.
20. I find that the FtT's findings are clear and fully justified, on the evidence before it. The judge has set out the evidence before her and weighed that evidence, finding that there were fundamental discrepancies and inconsistencies in the evidence of the first and second Appellant. From my reading of her decision she was fully justified in that approach. She fully sets out at [24] over the course of several paragraphs inconsistencies which were such to outweigh the other evidence before her. She has taken account of the other evidence before her and sets that out in [25]. She acknowledged that a child had been born of the relationship but correctly found that although this is a weighty piece of evidence it does not of itself operate as a trump card. The amount of weight to be attached to the evidence is a matter for her judgment. I find that more than adequate reasons have been given for her rejection of part of the evidence and for her conclusions that the first and second Appellants were not in a durable relationship. I find that the challenge to the FtT's findings and decision amounts to no more that a series of disagreements with that evidence.
21. That is sufficient to dispose of the appeals before me but I ought for the sake of completeness to deal with the second Appellant's appeal in this way. The FtT found as a fact that the second Appellant was not exercising treaty rights under Regulation 6 of the EEA Regulations. The judge made full findings on that aspect in [26]. She carefully reviewed the evidence before her including the documentary evidence and the fact that the second Appellant was not a credible witness.
22. I am of the view therefore that there being no distinct challenge to that evidence, the first Appellant's appeal could not succeed in any event. His applies for a residence card as the extended family member of an EEA national exercising treaty rights in the UK. If it has been found that the EEA national is not exercising treaty rights and there is no real challenge to that finding then the foundation of the first Appellant's appeal falls down.
23. The third Appellant's appeal stands and falls with that of her mother and in any event the FtT made a clear finding at [32] that no compelling reasons had been shown for any grant outside the Rule and she confirmed that she had had regard to the best interests of the children as required by Section 55 of the Borders, Citizenship and Immigration Act 2009.
24. For the foregoing reasons these appeals are dismissed.

Notice of Decision

The appeals of MA, IS and SEN are dismissed. The decision of the First-tier Tribunal dismissing the appeals of IS and SEN stands. The decision dismissing MA's asylum claim, is set aside for the First-tier Tribunal to make the decision.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the Appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. This direction applies both to the Appellants and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed C E Roberts Date 08 October 2016

Deputy Upper Tribunal Judge Roberts

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeals and therefore there can be no fee award.

Signed C E Roberts Date 08 October 2016

Deputy Upper Tribunal Judge Roberts