Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/31236/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11 April 2017
On 26 April 2017

Before

UPPER TRIBUNAL JUDGE WARR

Between

Maher Abu Ali
(ANONYMITY order not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr F Fahat (Gulbenkian Andonian)
For the Respondent: Mr I Jarvis

DECISION AND REASONS

1. The appellant is a citizen of the Palestinian Authority born on 12 June 1980. He applied for a residence card on 16 March 2015 as a partner of an EEA national. The respondent decided on 11 September 2015 that the appellant did not establish that he was in a durable relationship with his partner within the meaning of Regulation 8 of the Immigration (European Economic Area) Regulations 2006. Proper evidence to substantiate the claimed relationship had not been put forward. While his partner was pregnant this alone was not enough to establish that his relationship was genuine and subsisting.

2. The appellant appealed the decision and his appeal came before a First-tier Judge on 15 September 2016. The judge heard oral evidence from the appellant and his partner, a Polish citizen. The respondent was not represented. The judge notes that the appellant and his partner had a child born on 5 August 2015. The judge was not satisfied on the evidence before him that the appellant’s partner had informed the local authority that the appellant was residing with her and while the couple had a child and the appellant was named on the birth certificate as the father there was not satisfactory evidence that he had been living with his partner for the period claimed. Accordingly the judge dismissed the appeal. The determination was signed on 8 October 2016 and promulgated on 19 October 2016.

3. Grounds of appeal were settled on 24 October 2016 and reference was made to the case of Sala (EFMs: right of appeal) [2016] UKUT 00411 (IAC) which had been published on 19 September 2016 - i.e. after the date of the hearing but before the judge had signed the determination and before it had been promulgated. This explained why the appellant’s case had been put on the basis of a derivative right based on the fact that he had a child and accordingly he still had a right of appeal post-Sala. Complaint was made about the judge’s findings and there was in fact much material to show that the parties had resided together as claimed. The finding in relation to the partner’s claim for housing benefit was perverse and illogical as the appellant was not entitled to such benefit. No findings were made on the most important aspect of the case relating to the child.

4. Permission to appeal was granted on 16 February 2017 in which it was found that it was arguable that the judge should have dealt with the appellant’s case on the basis of his relationship with an EEA child – as a family rather than extended family member.

5. The Secretary of State filed a response on 2 March 2017 noting that it was argued that the judge should have considered the appeal under Regulation 15A of the 2006 Regulations. It was said that it was not clear from the grounds whether the case was presented on that basis. The refusal was under Regulation 8 and it therefore did not give rise to a right of appeal.

6. Before me Mr Fahat argued that while the judge had no jurisdiction to deal with the issue he purported to deal with in the light of Sala he had nevertheless materially erred in failing to consider the question of the relationship with the child.

7. Mr Jarvis accepted that the judge was seized of the appeal until it was promulgated.

8. In relation to the query raised in the respondent’s notice about whether the matter had been argued before the judge he accepted that in paragraph 6 of the grounds of appeal from the Secretary of State’s decision it had been argued that the Home Office had failed to examine the appellant’s relationship with an EEA child as a family (rather than extended family) member. This was therefore a point before the judge whether or not it was argued.

9. This was a case in which the respondent had advised the appellant that there was a right of appeal against the decision. The First-tier Judge was in some difficulty because the case of Sala had not been published until after the hearing. It is common ground that the judge was bound by that decision even though it was not available at the time of the hearing (cp NA (Libya) v Secretary of State for the Home Department [2017] EWCA Civ 143.)

10. The Secretary of State was not represented at the hearing before the First-tier Judge and was not then in a position to assist him. In fairness to the First-tier Judge the point in relation to the child was somewhat buried in the grounds but it was nonetheless taken and it is of course the appellant’s case that the matter was argued before the First-tier Judge. It is not clear from what I have been able to glean from the judge’s notes whether this was or was not the case. In any event technically the point was before him although as I have said it did not exactly spring out from the papers.

11. This is a case where the appellant’s position as a father of an EEA child has not yet been the subject of consideration by the respondent. No findings in relation to Regulation 15A have yet been made. The appellant was wrongly advised that he had a right of appeal against the decision as an extended family member. Nevertheless his case under Regulation 15 would be an appealable decision. While remittal to the Secretary of State is no longer an option, Mr Jarvis accepted in the light of the decision of the President in Greenwood (No. 2) (para 398 considered) [2015] UKUT 00629 (IAC) that this was a case where the Secretary of State should revisit the matter. The appellant’s child was born prior to the Secretary of State’s decision. The appellant had been advised he had a right of appeal. He had appealed and had raised in the grounds of appeal an issue which was undoubtedly appealable. Despite this, the respondent had not revisited the question or indeed instructed a Presenting Officer at the hearing of the appeal. Of course, as I have said, the issue was difficult for everybody in the light of the date of the promulgation of Sala. However Mr Jarvis was content that the matter be reconsidered by the Secretary of State. Both representatives agreed that this was the appropriate outcome. I have in mind that this was a case where the welfare of an EEA child is at issue.

12. There may of course be difficulties for the appellant making out a case under Regulation 15A but that is a matter to be determined in the light of any submissions made to the respondent.

13. Accordingly the appeal is allowed by agreement on the basis of Greenwood (No. 2). The appellant awaits a further decision in the light of his relationship with an EEA child.

Appeal allowed as indicated.

Anonymity Order
The First-tier Judge made no anonymity order and I make none.

FEE AWARD

The First-tier Judge made no fee award and I do not find that a fee award is appropriate in the circumstances of this case.

Signed Date 25 April 2017

G. Warr, Judge of the Upper Tribunal