Tribunal decisions

The decision

IAC-AH-KEW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/42398/2013

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 20 August 2014
On 5 September 2014

Before

DEPUTY UPPER TRIBUNAL JUDGE DAVID TAYLOR

Between

MS ROZANNE BANGER
(ANONYMITY DIRECTION NOT MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr J Chipperfield of Counsel
For the Respondent: Mr S Kandola, Home Office Presenting Officer

DETERMINATION AND REASONS

1. Although this is an appeal by the Secretary of State I have, for the sake of consistency, retained the original designations of appellant and respondent as in the First-tier Tribunal.
2. The respondent, Secretary of State, has appealed with permission against the decision of First-tier Tribunal Judge Devittie who, in a determination promulgated on 12 May 2014, allowed the appellant's appeal against the respondent's refusal of a residence card under the Immigration (EEA) Regulations 2006 as the unmarried partner of a British citizen. The appellant is a South African national born on 18 November 1965. Her partner Mr Philip Rado and the appellant have been in a relationship since January 2008 and have been co-habiting since December 2009.

3. The appellant and her partner lived together initially in South Africa and moved together to the Netherlands in May 2010. Mr Rado was working in the Netherlands until he and the appellant moved to the United Kingdom in July 2012. During their time in the Netherlands, the appellant was granted a work permit there on the basis of her accepted relationship with Mr Rado.

4. The respondent refused the application on 26 September 2013. In the refusal letter the respondent noted that the appellant sought her application to be considered under the judgment in Surinder Singh [1992] EU ECJ C-370/90 on the basis that Mr Rado had been exercising treaty rights in the Netherlands before returning to the UK. The refusal letter went on to refuse the appellant's application to be regarded as a family member under the 2006 Regulations. I note however that the respondent, in the refusal letter, did not consider whether the appellant, as an unmarried partner of an EEA citizen, should be regarded as an extended family member under Regulation 8(5). Finally, the refusal letter considered, and rejected, the appellant's Article 8 claims within the Immigration Rules.

5. In his determination, the First-tier Tribunal Judge allowed the appeal on human rights grounds. At [10] of the determination it was recorded that the appellant conceded that she did not meet the Article 8 requirements under Appendix FM of the Immigration Rules. The judge, however, continued to consider Article 8 outside the Rules purporting to follow Gulshan [2013] UKUT 00640. That case held that an Article 8 assessment outside the Rules shall only be carried out when there are compelling circumstances not recognised by the Rules. At [11] of the determination the judge held that the fact that the respondent had taken nine months to deal with the applicant's application constituted a good ground for the Tribunal to consider this application outside the Immigration Rules. That was the only reason he gave. The grounds seeking permission to appeal argue that the nine months' delay do not of itself constitute compelling circumstances to enable the Tribunal to consider Article 8 outside the Rules. Permission to appeal on that ground was granted by First-tier Tribunal Judge Saffer on 3 July 2014.

6. At the hearing before me both representatives made submissions. Mr Kandola urged upon me that the nine months' delay by the respondent in making her decision was not exceptional. There was also a basic defect in the proceedings at the First-tier Tribunal because, it appeared, no arguments had been put forward as to the appellant's rights as an extended family member under Regulation 8(5) of the 2006 Regulations. In reply, Mr Chipperfield urged upon me that there was no error of law and that the nine month delay was an exceptional circumstance.

7. I am satisfied that the First-tier Tribunal determination did contain an error of law and cannot stand. The error of law was that the judge gave no adequate reasons to show that this was an exceptional case enabling him to consider Article 8 outside the Rules. A nine month delay by the respondent is by no means (unfortunately) unusual and cannot in any way be regarded as exceptional. There was no evidence that such delay had cause any exceptional hardship to the appellant.

8. It is clearly unfortunate that, until the hearing before me, no one appears to have taken the point that the appellant may well be entitled to be regarded as an extended family member under Regulation 8(5) and that is an issue that will need to be decided on the evidence.

9. For these reasons I consider that remittal to the First-tier Tribunal is appropriate. The case will need to be heard afresh. One of the issues that will need to be considered is whether the decision in Surinder Singh applies equally to unmarried partners as it does to married couples or to civil partners. I am told by Mr Chipperfield that this Surinder Singh point is currently being considered, in another case, in the High Court where the hearing has taken place but judgment has not been delivered. I agreed to direct that the re-hearing of this appeal should be postponed until after the judgment in the High Court case.

Decision

10. The First-tier Tribunal determination contained an error of law and is hereby set aside in its entirety.

11. I remit the appeal to the First-tier Tribunal (at Taylor House) to be heard afresh by any judge other than Judge Devittie.

12. I direct that the re-hearing of this appeal shall be listed on or after 1 December 2014 (by which date it is hoped that the judgment of the High Court will have become available). I grant leave to either party to apply for further adjournment if the High Court decision is not then available.

Deputy Upper Tribunal Judge David Taylor
5 September 2014