Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/31382/2014
IA/31383/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 29th July 2016
On 12th August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

mrs clarise eugenie lindsay (first appellant)
mr anthony ricardo constantine (second appellant)
(ANONYMITY DIRECTION not made)
Appellants

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellants: Mrs A Heller, Counsel
For the Respondent: Mr E Tufan, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellants are citizens of Jamaica. They were born respectively on 3rd January 1970 and 7th November 1987. On 9th June 2014 the first Appellant applied for a permanent residence card as confirmation of a right to reside in the UK on the basis that she was the former spouse of an EEA national who was exercising free movement rights in the United Kingdom at the time of her divorce. The second Appellant applied on the basis of his being a family member. Their applications were refused by the Secretary of State by Notice of Refusals dated 23rd July 2014.
2. The Appellants appealed and the appeals came before Judge of the First-tier Tribunal Bowler sitting at Hatton Cross on 1st July 2015. The Appellants appeals were dismissed under the EEA Regulations and their appeals were however allowed on human rights grounds. It was recorded within the decision that the second Appellant is the son of the first Appellant.
3. On 24th July 2015 the Secretary of State lodged Grounds of Appeal to the Upper Tribunal. On 30th October 2015 Designated First-tier Tribunal Judge McCarthy granted permission to appeal. Judge McCarthy noted that the Grounds of Appeal in summary alleged that the judge had no power to consider the private and family life rights under Article 8 and that even if he had he had reached a conclusion which was not permissible on the facts because he had failed to give adequate regard to the statutory public interest considerations and his findings were therefore inadequately reasoned. Judge McCarthy noted that although it was not cited in the Grounds of Appeal and although not available to the parties or the judge at the date of hearing the decision in Amirteymour and Others (EEA appeals; human rights) [2015] UKUT 466 (IAC) added weight to the Secretary of State's argument albeit that it was acknowledged that it may not be determinative of the outcome in this case because at paragraphs 32 and 33 of the First-tier Tribunal's Judge's decision it is clear that the Presenting Officer did not object to the judge considering Article 8 and presented arguments on that specific issue despite in paragraph 31 it being noted that the Home Office had not considered Article 8 issues.
4. A request for an adjournment of the restored hearing before the Upper Tribunal was granted by Upper Tribunal Judge Storey on 18th January 2016 pending permission to appeal to the Court of Appeal in Amirteymour and Others.
5. It is on that basis that the appeal comes back before me. I note that this is an appeal by the Secretary of State and for the purpose of continuity throughout the appeal process the Secretary of State is referred to herein as the Respondent and Mrs Lindsay and Mr Constantine as the Appellants. The Appellants appeared by their instructed Counsel Mrs Heller. Mrs Heller is familiar with this matter having appeared before the First-tier Tribunal. The Secretary of State appears by her Home Office Presenting Officer Mr Tufan.
Submissions/Discussion/Law
6. It is accepted by Mrs Heller that no Section 120 Notice has been served in this matter and the fact that the Home Office Presenting Officer indicated that he would not raise objection to Article 8 being raised at the appeal is of no consequence. She further acknowledges that the law is now to be found within the Court of Appeal decision of TY (Sri Lanka) [2015] EWCA Civ 1233. That authority reached a similar decision on the issues to the decision reached by the Upper Tribunal in Amirteymour. The Court of Appeal concluded that it was impossible to say that the Secretary of State's decision to withhold a residence card would or would not cause the UK to be in breach of the Refugee Convention or the ECHR and that the UK would only be in breach of those Conventions if in the future an Appellant made an asylum or human rights claim which the Secretary of State and/or the Tribunal incorrectly rejected. Consequently Mrs Heller in following TY accepts that Article 8 cannot be engaged.
Findings
7. Consequently the correct approach is to find that the judge materially erred in law in addressing Article 8. He had no jurisdiction to do so. Such an approach constituted a material error of law. I therefore set aside the decision of the First-tier Tribunal so far it relates to the finding under Article 8 and remake the decision dismissing the Appellants' appeal under Article 8 on the grounds that there was no jurisdiction for the judge to hear the appeal.
Notice of Decision

The decision of the First-tier Tribunal contained a material error of law in that the judge had no jurisdiction to hear the appeal on human rights grounds. The decision of the First-tier Tribunal is consequently set aside so far as it relates to its finding on human rights grounds and is remade dismissing the appeal on the basis that there was no jurisdiction for the appeal to be heard by the First-tier Tribunal Judge.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD

No application is made for a fee award and none is made.

Signed Date

Deputy Upper Tribunal Judge D N Harris