Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA346992014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 4th April 2016
On 9th June 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

Mr francis leon amo apraku
(ANONYMITY DIRECTION not made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr S Karim (Counsel)
For the Respondent: Ms N Willocks-Briscoe (HOPO)

DECISION AND REASONS

1. This is an appeal against the determination of First-tier Tribunal Judge Maka, promulgated on 28th September 2015, following a hearing at York House on 26th August 2015. In the determination, the judge allowed the appeal of the Appellant under Regulation 8 of the EEA Regulations, whereupon the Respondent Secretary of State, applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
The Appellant
2. The Appellant is a male, a citizen of Ghana, who was born on 22nd April 1983. He appeals against the decision of the Respondent dated 20th August 2014, refusing his application for a residence card, as confirmation of his right of residence under European Community Law, as the Sponsor of an EEA national exercising treaty rights. The Appellant claims to have been in a relationship with [EP], a national of Czechoslovakia.
The Judge's Findings
3. The judge had before him a situation where the Appellant had married, under Ghanaian law, the EEA national, [EP], a citizen of Czechoslovakia, by virtue of a customary marriage, and the issue was whether such a marriage could be recognised for the purposes of English law. The judge held that the proxy marriage "Has not been properly executed and I do not accept proper steps have been followed to show a valid and lawfully issued certificate" (paragraph 48). He also went on to say that he saw nothing before him to confirm that the Appellant's marriage had been validly accepted by the authorities in Czechoslovakia.
4. However, the judge allowed the appeal on the basis that the Appellant was in a durable relationship with [EP] and that this was "a genuine and committed relationship" (paragraph 51). A child had been born by the name of [TB] and the judge went on to say that, "I accept the parties were living together at the time and the birth itself is evidence of a relationship between the couple" (paragraph 52).
5. However, the judge also added that he was not impressed with the Appellant's account regarding how he entered the United Kingdom and the fact that he did not have his passport with him when he applied (see paragraph 56). He found that a false visa had been used.
Grounds of Application
6. The grounds of application state that the judge was wrong to have allowed the appeal outright because under Regulation 17(4) of the 2006 EEA Regulations there is a discretion to be exercised here, and which can only be exercised by the Secretary of State. Reference was made to the case of Ihemedu (Nigeria) [2011] UKUT 00340 where it is said that,
"Regulation 17(4) makes the issue of a residence card to an OFM/extended family member, a matter of discretion. Where the Secretary of State has no yet exercised that discretion the most an Immigration Judge is allowed to do is to allow the appeal as being not in accordance with the law leaving the matter of whether to exercise this discretion in the Appellant's favour or not to the Secretary of State".
7. On 19th February 2016, permission to appeal was granted on the basis that the case of Ihemedu had not been followed and the judge was wrong to have allowed the appeal in the manner that he did.
Submissions
8. At the hearing before me on 4th April 2016, Ms Willocks-Briscoe, appearing as Senior Home Office Presenting Officer, on behalf of the Respondent Secretary of State, submitted that the issue was a narrow one in this case, namely, whether the judge was correct to have allowed the appeal, bearing in mind that Regulation 17(4) of the EEA Regulations makes it clear that there is an element of discretion to be exercised by the judge, and all that the judge can do is to say that the appeal is not in accordance with the law.
9. For his part, Mr Karim, appearing on behalf of the Appellant, submitted that he would not object to the matter being referred to the Secretary of State, save to say that the judge had not actually used the words "outright" in allowing the appeal, but had only allowed this appeal to the extent that it had not been shown that the relationship was not a durable one.
Error of Law
10. I am satisfied that the making of the decision by the judge involved the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision and remake the decision. My reasons are as follows. This is a case where the judge has allowed the appeal. The judge has not gone on to refer to Section 17(4) of the EEA Regulations 2006 and to say that the matter now remains outstanding before the Secretary of State to exercise her discretion, with the Tribunal only being able to say that the decision is not in accordance with the law.
Remaking the Decision
11. I remake the decision on the basis of the findings of the original judge, and the submissions that I have heard today. This appeal is allowed to the extent that under Regulation 17(4) of the EEA Regulations the decision whether to exercise the discretion in favour of the Appellant and to hold that the Appellant is entitled to a residence card is a matter for the Secretary of State.
Notice of Decision
12. The decision of the First-tier Tribunal involved the making of an error of law such that it falls to be set aside. I set aside the decision of the original judge. I remake the decision as follows. This appeal is allowed only to the extent that, whereas the judge was entitled to conclude that the Appellant and his partner were in a durable relationship, the issue of whether to grant a residence card is a matter of discretion for the Secretary of State under Regulation 17(4), and will take into account all the circumstances appertaining to this case.
13. No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Juss 12th April 2016