Tribunal decisions

The decision

IAC-FH-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/37326/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 29 July 2016
On 08 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE STOREY

Between

AZEEZ ABDUL
(ANONYMITY DIRECTION NOT MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Z Ahmed, Home Office Presenting Officer
For the Respondent: Mr K Shoye, Counsel

DECISION AND REASONS

1. The respondent (hereafter the claimant) is a citizen of Nigeria. He is in possession of a residence card granted to him on 22 July 2013 as a family member valid until 22 July 20128. On 23 September 2014 the appellant (hereafter the SSHD) made a decision to remove him from the UK under the Immigration (European Economic Area) Regulations 2006 pursuant to regulations 21B(2)and 24(2) on the basis that "[y]ou are specifically considered a person who has entered into a marriage or civil partnership of convenience, thereby fraudulently obtaining a right to reside in the UK". The claimant appeals against this decision came before Judge Haria who, in a decision sent on 29 December 2015 allowing the appeal on human rights grounds stated that "the matter is remitted to the SSHD to reconsider her discretion under regulation 21B(2) of the EEA Regulations". At [39] the judge stated that the case stood to be remitted for the SSHD to exercise her discretion under reg 22B(2) of the EEA Regulations.

2. The SSHD's grounds did not seek to challenge the judge's decision to remit on EEA grounds, but did challenge the Article 8 finding. In granting permission First-tier Tribunal Judge Ford stated that it was arguable that Judge Haria did not have jurisdiction to remit the matter back to the SSHD (as opposed to simply finding that the SSHD had failed to establish that the partnership was one of convenience).

3. Despite the SSHD not seeking to challenge the decision to remit, I am satisfied that that decision was manifestly wrong in law, since there was no discretion still to be exercised under Regulation 21B(2). That provision states that the SSHD "may" make a decision "on the grounds of an abuse of rights ...", but the SSHD had already taken that decision.

4. There were further errors on the part of the judge, but these are best identified when I go on to remake the decision. My first decision is to find that the FtT judge erred in law and her decision is set aside.

5. In turning to re-make the decision it is immediately apparent that my decision must be to allow the claimant's appeal on the basis that the decision to remove him was unlawful. This decision was premised on the claimant having been a party to a civil partnership of convenience. However: (i) the claimant and his partner were man and woman whereas by virtue of s.3 of the Civil Partnership Act 2004, only same sex couples can enter into a civil partnership; (ii) the claimant and his partner were not spouses. They claimed to have entered into a religious Islamic marriage and although they did attempt to register their marriage in the UK, that attempt failed. Hence the status of the claimant under the EEA Regulations could only be based on him being in a durable relationship with an Italian national, Miss Cisse. The regulations governing expended family members are entirely distinct to those governing spouses and civil partners. The SSHD has not as yet examined the claimant's position as a partner in a durable relationship. The decision to remove therefore has no lawful basis.

6. The above reasoning also sheds light back on why I consider that the judge's errors of law in this case were material.

7. As I explained to the parties, the outcome of this appeal may prove of little assistance to the claimant since it will be open to the SSHD to make a fresh decision. In making that decision she will of course need to have regard to the judge's finding that the SSHD had not discharged the burden on her of proving there was no substance to the couple's relationship. She may also wish to consider whether to take action to revoke the claimant's residence card on the separate basis that Miss Cisse is no longer in the United Kingdom exercising Treaty rights and therefore the underlying basis for the grant of a residence card no longer exists. But these are matters for the SSHD, not this Tribunal.

8. I should record that these grounds also raised Article 8 issues, but given that the underlying EEA decision to remove is unlawful, it is unnecessary to address any potential Article 8 flaws in that decision.

9. For the above reasons:

the FtT materially erred in law and is decision is set aside;

the decision I re-make is to allow the claimant's appeal on the basis that the EEA decision to remove was unlawful.

No anonymity direction is made.

Signed Date: 9 August 2016

Dr H H Storey
Deputy Judge of the Upper Tribunal