Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/28325/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 14 December 2016
On 15 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HANBURY

Between

MR KAMRAN TAHIR
(ANONYMITY DIRECTION NOT MADE)
Appellant/Respondent
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent/Appellant

Representation:
For the Appellant: Mr M Sowerby of Counsel
For the Respondent: Ms A Ahmad, a Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. In this appeal the parties will be referred to by their designations in the First-tier Tribunal (FtT).
2. The appellant is a Pakistani national who was born on 26 October 1984 who applied for leave to remain in the UK on the basis of his relationship with Ms Belcuig, a Romanian citizen. The respondent refused his application but the appellant successfully appealed that decision to the FtT.
The appeal to the Upper Tribunal
3. The respondent appeals to the Upper Tribunal (UT) with the permission of Judge of the First-tier Tribunal Page on 7 November 2016. Judge Page gave the respondent permission to appeal the decision of First-tier Tribunal Judge Cohen (the Immigration Judge) to allow the appellant's appeal against the respondent's decision to refuse to vary the appellant's leave to remain. The Immigration Judge's decision was promulgated on 11 July 2016 following a hearing on 27 June 2016.
4. The Immigration Judge stated (in paragraph 1 of his decision) that the respondent's decision appealed against had been on 30 March 2015, whereas in fact, the decision had been taken by the respondent on 22 July 2015. The basis of the current appeal to the UT is that on 4 April 2015 the Immigration Act 2014 (the 2014 Act) came into force, i.e. before the respondent's decision. The 2014 Act fundamentally alters appeal rights so as to limit the correct scope of the appeal to be determined by the Immigration Judge.
5. During the course of the hearing before the UT I was taken to the Commencement Order (The Immigration Act 2014 (Commencement No.4, Transitional and Savings Provisions and Amendment) Order 2015- SI 2015/371). The intention of the 2014 Act is to limit the grounds of appeal that may be raised in response to certain types of decisions to human rights, asylum and the need for international humanitarian protection. As Judge Page highlighted when he granted permission to appeal, the Immigration Judge decided that the respondent's decision had been contrary to EU law. In fact, the decision had been made under Appendix FM of the Immigration Rules. The Immigration Judge erroneously suggested that the decision appealed against had been taken on 30 March 2015 (i.e. prior to the commencement of the relevant Act) when in fact it was taken on 22 July 2015. For that reason Judge Page considered the respondent's appeal to be at least arguable.
The hearing
6. At the hearing I heard oral submissions by both representatives. It was clear at the outset that Mr Sowerby, who appeared on behalf of the appellant, accepted that as a result of the above-mentioned commencement provisions, the only appeal that could properly have been brought to the FtT was on the three grounds set out above. Therefore he appeared to accept that the decision of the FtT could not be sustained UT. In any even the decision had been to refuse leave to remain in the UK, the appellant having applied the relevant Immigration Rules. Details of the refusal are set out in detail in the refusal letter dated 4 August 2015.
7. Both parties agreed that the matter should be remitted to the First-tier Tribunal for them to decide the case afresh. However, given that no procedural or factual errors were alleged against the Immigration Judge, neither party had any objection to the appeal being listed before any Immigration Judge including Judge Cohen. I was invited to direct that the findings of fact, including those at paragraphs 14 et seq other than those relating to the period of cohabitation between the appellant and the sponsor of up to two years, should be allowed to stand. No fact-findings should be set aside, subject the one exception mentioned. The First-tier Tribunal would need to decide any additional disputed facts placed before it.
8. Mr Sowerby also accepted that the error was a significant one, in that although it would have been open to the Immigration Judge to have decided the case on human rights grounds, this is not what he purported to do. The sole basis he stated for allowing the appeal was under the EEA Regulations 2006 (the EEA Regulations).
Conclusions
9. Having regard to the limitations on the ability to appeal imposed by the 2014 Immigration Act, I am satisfied that the Immigration Judge made a material error of law by deciding the appeal on the basis that the requirements of the EEA Regulations were not fulfilled. It is an error that should not have been made, especially since one of the parties had been represented before the FtT. The Immigration Judge should have limited the argument before him to those grounds of appeal that could be sustained (i.e. human rights, asylum and humanitarian protection grounds).
10. I am satisfied, and both parties agree, that the correct course is for the matter to be remitted to the First-tier Tribunal for a de novo hearing at which the fact-findings indicated above are allowed to stand.

My decision
11. The decision of the FtT contains a material error of law so that that decision is required to be set aside. The appeal is remitted to the FtT to be heard by any judge of that tribunal.
12. The findings of fact made by the First-tier Tribunal, save in relation to the period of cohabitation between the appellant and the sponsor, should be allowed to stand.
13. The FtT is to remake the decision making such additional fact-findings as it deems appropriate.
14. There is a need for a Spanish interpreter for the hearing before the FtT but any additional directions should be issued by the FtT.
15. No anonymity direction is made.

Signed Dated

Deputy Upper Tribunal Judge Hanbury

TO THE RESPONDENT
FEE AWARD
As I have allowed the appeal and because a fee has been paid or is payable, I have considered making a fee award but have decided to make no fee award.

Signed Date

Deputy Upper Tribunal Judge Hanbury