IA/33550/2013

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The decision



Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/33550/2013


THE IMMIGRATION ACTS


Heard at FIELD HOUSE
Determination Promulgated
On 2nd September 2014
On 11th September 2014




Before

DEPUTY UPPER TRIBUNAL JUDGE G A BLACK

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and


MR KOFI SARFO Claimant
(No anonymity order made)


Representation:

For the Appellant: Mr N Bramble ( Home office presenting officer)
For the Respondent: Mr A Swain (Counsel instructed by Dot com solicitors)


DETERMINATION AND REASONS


1. This matter comes before me for consideration as to whether or not there is a material error of law in the determination promulgated by the First Tier Tribunal ( Judge Thanki) on 23rd June 2014 in which he allowed the appeal under the Immigration (EEA) Regulations 2006 ( "EEA regulations" ).

Background

2. The claimant is a citizen of Ghana whose date of birth is 8.8.1967.

3. The Secretary of State refused his application made under Regulation 8 of the "EEA Regulations" on the grounds that he failed to show that he was in a durable relationship.

4. The Tribunal found that the claimant was an extended family member under Regulation 8 [32] and further that he qualified under Regulation 17(4) "EEA Regulations" for the grant of a residence card [33].

Grounds of appeal

5. The Secretary of State argued that the Tribunal erred by exercising discretion under Regulation 17(4), a) where there was no jurisdiction and b) the Tribunal failed to apply YB( EEA reg17(4), proper approach ) Ivory Coast [2008] UKAIT 00062.

6. A written response was produced under Rule 24 on behalf of the claimant.

Submisssions

7. I heard submissions from Mr Bramble and Mr Swain, the details of which are set out in the Record of proceedings . At the end of the hearing I announced my decision. I found a material error of law in the determination. I now give my reasons.

Discussion and conclusion

8. The decision under Regulation 8 discloses no error of law and shall stand. I am satisfied that the Tribunal did not have jurisdiction to exercise discretion under Regulation 17(4) of the "EEA Regulations" (FD(EEA discretion - basis of appeal) Algeria 2007 EWCA Civ 981). The discretion falls to the Secretary of State to exercise and arises as a separate consideration after adopting a three stage approach. The first stage is to decide if Regulation 8 applies. The fact that it does or does not apply cannot be treated as determinative of the question of whether or not to issue a residence card. There must then be an extensive examination of the circumstances of the applicant which is a distinct stage exercised by the Secretary of State. The approach is clearly set out in YB ( cited above) which the Tribunal failed to apply.

Decision

9. There is a material error of law disclosed in the determination.
The decision under Regulation 8 shall stand.
The decision made under Regulation 17(4) is set aside.
The matter is remitted to the Secretary of State for a consideration under Regulation 17(4).


Signed Date 9.9.2014

GA Black
Deputy Judge of the Upper Tribunal


NO ANONYMITY ORDER MADE.
NO FEE AWARD MADE.


Signed Date 9.9.2014

GA Black
Deputy Judge of the Upper Tribunal