Tribunal decisions

The decision

UPPER Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA393092014

THE IMMIGRATION ACTS

Heard at: Field House
on 24 February 2016
Decision and Reasons Promulgated
On 13 June 2016

Before

THE HONOURABLE LORD BURNS
DEPUTY UPPER TRIBUNAL JUDGE MAILER

Between

secretary of state for the home department
Appellant
and

Miss Ruth Sasil Gerong
no anonymity direction made
Respondent
Representation

For the Appellant: Mr P Duffy, Senior Home Office Presenting Officer
For the Respondent: Mr A Blake, Counsel (instructed by Blakewells)

DECISION AND REASONS
1. We shall refer to the appellant as the secretary of state and to the respondent as "the claimant."
2. The secretary of state appeals with permission against the decision of the First-tier Tribunal Judge who dismissed the claimant's appeal under the Immigration (EEA) Regulations 2006 ("the 2006 Regulations") but allowed it on human rights grounds [38-39].
3. The claimant made an application for a derivative residence card under the 2006 Regulations on the basis that she is the primary carer of her two British children. The secretary of state refused her application under the 2006 Regulations, but did not consider her private and family life.
4. The First-tier Tribunal Judge concluded on the basis of the evidence before her that the claimant has not been able to establish that the children would have to leave the EEA if the claimant were required to do so [25]. The claimant has not sought to appeal that finding to the Upper Tribunal.
5. The First-tier Judge however went on to consider the claimant's further grounds of appeal which asserted that the decision constituted a disproportionate interference with her Article 8 rights and, as already noted, allowed the appeal on human rights grounds.
6. On 4 January 2016, First-tier Tribunal Judge Lambert granted the secretary of state permission to appeal that decision. He found that there was an arguable error of law disclosed by the application for permission. The grounds seeking permission noted the absence of any s.120 notice or removal direction in this case. The secretary of state relied on the decision of the Upper Tribunal in Amirteymour and Others [2015] UKUT 00466 in maintaining that the First-tier Judge was not entitled to consider a human rights challenge in an appeal under the 2006 Regulations.
7. Mr Blake in an attractive argument contended that the decision in Amirteymour was incorrectly decided as the Tribunal did not consider several Court of Appeal authorities including dicta from Lord Justice Sedley in Anwar and Adjo v SSHD [2010] EWCA Civ 1275. The Tribunal also failed to have regard to the decision of the Court of Appeal in Lamichhane v SSHD [2012] EWCA Civ 260. He also sought to rely on a decision of the Supreme Court in Carter v Ahsan [2005] EWCA Civ 990.
8. However, in the recent decision of the Court of Appeal in TY (Sri Lanka) v SSHD [2015] EWCA Civ 1233, (which was not referred to by either party at the hearing before us), Lord Justice Jackson stated that he reached a similar decision on the issues before the Court of Appeal in that case as that reached by the Upper Tribunal in Amirteymour.
9. The Upper Tribunal had in Amirteymour distinguished JM (Liberia) [2006] EWCA Civ 1402 on a different basis from that which Lord Justice Jackson identified. He went on to state that "Nevertheless, in the end the Upper Tribunal has come to the same decision as myself". He noted that the Upper Tribunal in Amirteymour had analysed the statutory provisions and the authorities "in formidable detail" [36].
10. In applying Amirteymour, we find that where, as in the appeal before us, no notice under s.120 of the 2002 Act has been served and where no EEA decision to remove has been made, the claimant cannot bring a human rights challenge to removal in an appeal under the 2006 EEA Regulations [75].
11. We accordingly find that there the First-tier Tribunal did not have jurisdiction to consider a human rights challenge in the appeal.
Notice of decision
The decision of the first-tier Tribunal involved the making of an error on a point of law.
We accordingly set it aside and re-make the decision, dismissing the claimant's appeal.
No anonymity direction is made.

Signed Date 4 March 2016
Deputy Upper Tribunal Judge Mailer