Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/36096/2014

THE IMMIGRATION ACTS

Heard at Newport
Decision & Reasons Promulgated
On 31 August 2016
On 05 September 2016

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

the secretary of state for the home department
Appellant
and

O S P
(ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Appellant: Mr I Richards, Home Office Presenting Officer
For the Respondent: In person with the sponsor

DETERMINATION AND REASONS
1. I make an anonymity order under Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698 as amended) in order to protect the anonymity of the respondent's child. This order prohibits the disclosure directly or indirectly (including by the parties) of the identity of the respondent. Any disclosure and breach of this order may amount to a contempt of court. This order shall remain in force unless revoked or varied by a Tribunal or court.
2. The Secretary of State appeals against the decision of the First-tier Tribunal (Judge Ghani) allowing the appeal of the respondent (hereafter "the claimant") against a decision to refuse her a residence card under the Immigration (EEA) Regulations 2006 (SI 2006/1003 as amended). Although Judge Ghani dismissed the claimant's appeal under the EEA Regulations, he allowed the appeal under Article 8.
3. The Secretary of State sought permission to appeal against Judge Ghani's decision to allow the appeal under Art 8. On 19 August 2015, the First-tier Tribunal (Judge Molloy) granted the Secretary of State permission to appeal on the basis that it was arguable that the claimant could not rely upon Article 8 where no s.120 notice had been issued and there was no removal decision.
4. The appeal was initially listed before me on 24 November 2015. However, the appeal was adjourned pending the final determination of the case of Amirteymour [2015] UKUT 00466 (IAC) which it was understood was being appealed to the Court of Appeal and which would determine whether, and if so in what circumstances, an appellant appealing against a refusal of a residence card under the EEA Regulations could rely upon Art 8.
5. The effect of the UT's decision in Amirteymour (McCloskey J; Ockelton V-P and UTJ Rintoul) is neatly summarised in the headnote as follows:
"Where no notice under Section 120 of the 2002 Act has been served and where no EEA decision to remove has been made, an appellant cannot bring a Human Rights challenge to removal in an appeal under the EEA Regulations."
6. In the result, the Court of Appeal dealt with the issue in the case of TY (Sri Lanka) v SSHD [2015] EWCA Civ 1233. The Court approved Amirteymour.
7. The present appeal was again listed before me on 31 August 2016.
8. The claimant was unrepresented and was accompanied by her partner, MV (the 'sponsor').
9. I explained at the outset of the hearing that the effect of the decisions in Amirteymour and TY (Sri Lanka) was that the claimant had not been entitled to rely upon Art 8 before Judge Ghani. There was no s.120 notice and no removal decision. As a consequence, the judge had made an error of law. The claimant was not entitled to rely upon Art 8 in her current appeal and therefore Judge Ghani could not lawfully allow the claimant's appeal on that basis. The claimant and sponsor were, not unexpectedly, disappointed by this outcome but it was inevitable given the binding authority in TY (Sri Lanka). I explained that the proper procedure for the claimant to assert her Art 8 rights was to make an application based upon Art 8 to the Home Office.
10. The judge erred in law in allowing the claimant's appeal under Art 8 as the claimant could not properly rely upon Art 8 in this appeal.
11. I set aside that decision and substitute a decision dismissing the appeal under Art 8.
12. The claimant has not sought to appeal Judge Ghani's decision that she could not establish her entitlement to a residence card based upon a "retained right of residence" under reg 10 following her divorce from her EEA national husband on 15 June 2012. Judge Ghani was not satisfied that her ex-husband was, as required under the Regulations, employed at the date of divorce. Judge Ghani's decision to dismiss the appeal under the EEA Regulations, therefore, stands.
Decision
13. For the above reasons, the First-tier Tribunal's decision to allow the claimant's appeal under Art 8 involved the making of an error of law. That decision cannot stand and is set aside.
14. The appeal is dismissed on all grounds.

Signed

A Grubb
Judge of the Upper Tribunal