Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/28728/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 21 September 2016
On 26 September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

MR NDEDE FRANCIS AKETCHI
(NO ANONYMITY ORDER MADE)
Appellant
v

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

______________________________________

ERROR OF LAW DECISION & REASONS
______________________________________

Representation:
For the Appellant: Ms F Clarke, instructed by Fadiga & Co, solicitors
For the Respondent: Mr I. Jarvis, Home Office Presenting Officer

1. The Appellant is a national of the Cote D'Ivoire, born on 31 October 1978. On 22 November 2013, he applied for a residence card as an extended family member of Ms [MB], a national of Finland born on 24 December 1971 in Abidjan. This application was refused on 2 July 2014 on the basis that the Respondent considered that there was a lack of a durable relationship between the couple which had lasted for at least two years. The Appellant appealed against this decision and the appeal came before Judge of the First tier Tribunal Raymond for hearing on 21 August 2015.
2. In a decision and reasons promulgated on 12 January 2016, the Judge dismissed the appeal, essentially on the basis that there were problematic features in the evidence and he did not accept that the Appellant was in a durable relationship with his partner, despite the birth of a son on 29 March 2014.
3. An application for permission to appeal was made in time on the basis that the Judge erred materially in law: (i) in that his findings were perverse; (ii) his findings were not based on inconsistent oral evidence but by him reading the Appellant's bundle; the Respondent's decision and speculation; (iii) the decision by the First tier Tribunal Judge is seriously flawed. In essence, the point being made in the grounds of appeal was that the Judge had made findings against the Appellant and his witness which were not based on their answers to questions put to them as no questions had been put by either the Presenting Office or the Judge on the issues the Judge found to be in contention.
4. Permission to appeal was granted by Upper Tribunal Judge Kebede on 12 August 2016 on the basis that:
"It is arguable that the Judge, in making the adverse findings he did, unduly speculated on matters not raised at the hearing and erroneously relied upon matters that were not arguably relevant to the appeal before him."
Hearing
5. At the hearing before me, Mr Jarvis helpfully conceded that on the facts of this particular case, given that the Presenting Officer only asked three questions by way of cross-examination, the Judge had acted unfairly in proceeding to go into the evidence in such forensic detail after the hearing had finished, without providing the Appellant and his witness with the opportunity to respond to his concerns.
6. I agree entirely with Mr Jarvis' concession in this case, which I consider was properly made. The decision of the First tier Tribunal Judge is extensive [116 paragraphs] and is almost entirely based on the Judge's speculative findings based on his examination of the documentary evidence. However, none of the issues upon which the Judge made adverse findings were put to the Appellant or his witness during the appeal hearing, in order to provide them with an opportunity to respond. This is clearly unfair and a breach of natural justice, particularly in circumstances where the case concerned whether the Appellant and his partner were in a durable relationship and there was a child of the relationship and the Appellant's paternity had been confirmed by way of a DNA test.
7. Therefore, I find there is a material error of law and set aside the decision of the First tier Tribunal Judge.
8. However, Mr Jarvis helpfully drew to my attention the judgment of the Upper Tribunal in Sala (EFMs: Right of Appeal) [2016] UKUT 00411 (IAC) handed down yesterday, where the Upper Tribunal held that there is no statutory right of appeal against the decision of the Secretary of State not to grant a Residence Card to a person claiming to be an Extended Family Member.
9. In light of the decision in Sala therefore, the Appellant has no right of appeal before the First tier Tribunal.
10. Ms Clarke informed me that the Appellant and his partner are now married and she had advised them to make an application for a residence card as a family member pursuant to regulation 7 of the Immigration (EEA) Regulations 2006.
Decision
11. I find that First tier Tribunal Judge Raymond erred materially in law and I set aside his decision. However, in light of the very recent decision in Sala (EFMs: Right of Appeal) [2016] UKUT 00411 (IAC) the Appellant is not entitled to appeal against the refusal of a residence card as an extended family member because it has been found by the Upper Tribunal that there is no statutory right of appeal against a refusal made under regulation 8(5) of the Immigration (EEA) Regulations 2006.

Deputy Upper Tribunal Judge Chapman

21 September 2016