Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/38244/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 4 August 2016
On 19 August 2016
Oral determination given immediately following hearing

Before

UPPER TRIBUNAL JUDGE CRAIG

Between

Secretary of State for the Home Department
Appellant
and

ONASA HEFFERY OTITE
Respondent

Representation:
For the Appellant (Secretary of State): Mr S Whitwell, Home Office Presenting Officer
For the Respondent (Mr Otite): Mr T Airuoyo, Legal Representative of Church Street Solicitors

DECISION AND REASONS
1. This is the Secretary of State's appeal against the decision of First-tier Tribunal Judge Charles Bennett who in a determination promulgated on 11 June 2015 following a hearing at Taylor House on 8 May 2015 had allowed Mr Otite's appeal against the decision previously made by the Secretary of State refusing to grant him a residence card on the basis that Mr Otite was entitled to succeed under Article 8 because his removal would be in breach of this country's obligations under Article 8. For ease of reference I shall hereafter refer to Mr Otite who was the original appellant as the claimant and to the Secretary of State who was the original respondent as "the Secretary of State".
2. This appeal was last before me on 12 November 2015 when I referred to the then recently reported decision of this Tribunal in Amirteymor & Others (EEA appeals: human rights) [2015] UKUT 00466 in which the Tribunal had found that unless a Section 120 notice had been issued or removal decision made in circumstances such as this, there was no jurisdiction to allow an appeal based on an appellant's Article 8 rights. I stated on that occasion that if this decision was correct the Secretary of State's appeal must succeed and a decision must be substituted dismissing the claimant's appeal.
3. I was told on that occasion that permission to appeal had been granted by the Upper Tribunal in Amirteymor to the Court of Appeal because it had been understood that that case had the status of a test case which was to decide whether in EEA residence cases an appeal should also be considered on Article 8 grounds where a Section 120 notice had not been issued. Because on that occasion there were many cases currently before the Upper Tribunal whose outcome would depend on the decision of the Court of Appeal, it was considered appropriate to adjourn this case as well as others in which this issue was raised until such time as the Court of Appeal had handed down its judgment in that case.
4. Subsequently the Court of Appeal has given judgment in TY (Sri Lanka) v SSHD [2015] EWCA Civ 1233 in which the decision in Amirteymor was upheld. The Court of Appeal specifically upheld the decision in Amirteymor at paragraph 36 of its decision in TY.
5. Before me this morning on behalf of the claimant Mr Airuoyo conceded that a Section 120 notice not having been served the appeal could not succeed and in those circumstances he was instructed to withdraw the claimant's appeal. As the matter is now before me I do not consent to withdrawal but consider it appropriate to give my decision because the decision will involve the setting aside of the previous decision made by the First-tier Tribunal.
6. It follows from the decision of the Court of Appeal in TY that Judge Bennett's decision allowing the claimant's appeal under Article 8 cannot stand because he had no jurisdiction to make the order he did. Accordingly I must set this decision aside as containing a material error of law and re-make it by dismissing the claimant's appeal which I now do.
Decision
The decision of First-tier Tribunal Judge Charles Bennett allowing the claimant's appeal is set aside as containing a material error of law, and the Tribunal substitutes the following decision:
The claimant's appeal is dismissed.

Signed:

Upper Tribunal Judge Craig Date: 18 August 2016