Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/27888/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 1 February 2017
On 17 February 2017

Before

UPPER TRIBUNAL JUDGE O'CONNOR

Between

muhammad faraz ansari
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Alam, instructed by 12 Bridge Solicitors
For the Respondent: Mr S Staunton, Senior Presenting Officer

DECISION AND REASONS
(Decision given orally)
Introduction
1. This is an appeal to the Upper Tribunal against a decision of First-tier Tribunal Judge Grimmett ("the FtT") promulgated on 31 August 2016, in which the FtT dismissed the appellant's appeal against a decision made by the Secretary of State for the Home Department ("SSHD") on 6 May 2015 revoking the appellant's EEA Residence Card.
Secretary of State's decision
2. It is prudent to set out the centrepiece of the SSHD's decision letter at this stage:
"On 21 February 2013 you were issued a residence card as confirmation of a right of residence in the United Kingdom as the spouse of an EEA national. However, your EEA family member is not exercising treaty rights in the United Kingdom. You have therefore ceased to be the family member of a qualified person."
3. The SSHD provided further reasons for her decision in a separate "Reasons for Revocation Letter" of the same date. This reasons letter makes reference to regulation 20(2) of the 2006 EEA Regulations but, for reasons unexplained, incorrectly imports the phrase "gained by deception" into the citation thereof. The letter continues by setting out what appears to be reference to notes contained in an Immigration Officer's notebook relating to a visit by the officer to a property in Hayes where the appellant was living. The following is then said:
"You have failed to provide evidence that your EEA family member is a qualified person as detailed in the Regulations. Therefore you cease to have the right to reside in the United Kingdom under these Regulations."
4. The plain reading of the aforementioned letters is that SSHD revoked the appellant's EEA residence card on the basis that his EEA national wife was no longer a qualified person for the purposes of the 2006 EEA Regulations. Whilst there is passing reference to deception on the appellant's behalf the reasons letter, it does do not contain any formalisation of this point and identifies only the single basis for the revocation (as set out above) - a point accepted by Mr Staunton at the hearing. The SSHD was not represented before the FtT and, consequently, the aforementioned letters formed the entirety of her case therein.
FtT's Decision
5. Turning then to the decision of the FtT. Therein the FtT not only considered whether regulation 20(2) of the 2006 EEA Regulations applied but, of its own volition and without giving notice to the appellant, considered regulations 20(1) and 21B(2) of the 2006 EEA Regulations, concluding that each operated against the appellant so as to provide justification for the SSHD revoking his EEA Residence Card. In particular, the FtT concluded that the appellant and his wife have never lived together and, consequently, that the appellant's EEA residence card had been obtained by deception.
Decision and Reasons
6. As is clear from what I have said above, the SSHD did not take the marriage of convenience/deception point against the appellant in either her decision, or reasons, letters (as accepted by Mr Staunton), nor was this a point taken by the SSHD at the hearing before the FtT. It was a point the FtT took of its own volition, without giving the appellant any proper notice of its intention to do so or opportunity to obtain evidence to refute the suggestion made.
7. It is plain that in such circumstances the FtT's decision is vitiated by procedural unfairness. It is axiomatic, even assuming that the FtT was entitled to take the marriage of convenience/deception point absent the SSHD having taken it, that the appellant was entitled to know the case against him, and to be afforded a proper opportunity to provide evidence to contradict such case. In any event, the FtT's decision on the issue of deception/marriage of convenience is irrational, the evidence before the FtT not being capable of supporting the conclusion reached by it on such matter. As a consequence, I set aside the FtT's decision.
8. I can re-make the decision under appeal without the need for a further hearing. It is for the Secretary of State to demonstrate that the residence card should be revoked and she has not met the evidential burden upon her.
9. The FtT determined the one issue that the SSHD took against the appellant i.e. that his wife was no longer a qualified person, in the appellant's favour (paragraph 18 of its decision). Mr Staunton accepted that the FtT's conclusion on this issue should remain standing. He further indicated that the SSHD did not seek to take a deception/marriage of convenience point before the Upper Tribunal.
10. I therefore conclude that the SSHD's decision was not in accordance with the appellant's EU Treaty rights, and his appeal is allowed.
Notice of Decision

The FtT's decision is set aside. I have re-made the decision under appeal and, for the reasons given above, the appellant's appeal is allowed.

Signed:

Upper Tribunal Judge O'Connor