Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/48274/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 16 June 2016
On 30 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE L J MURRAY

Between

secretary of state for the home department
Appellant
and

BENTLEY POPE
Respondent

Representation:
For the Appellant: J Isherwood, Home Office Presenting Officer
For the Respondent: None

DECISION AND REASONS

1. The Respondent in this case is a national of Trinidad and Tobago born on 8 December 1966. He was the Appellant in the appeal before the First-tier Tribunal. For ease of reference I refer to him as the Claimant and to the Appellant as the Secretary of State.

2. The Claimant applied on 30 August 2014 for permanent residence under the European Economic Area Regulations 2006 (as amended) ("EEA Regulations"). That application was refused by the Secretary of State under Regulation 10 (5) as it was concluded that he did not qualify for a retained right of residence. The Claimant appealed that decision under section 82 of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") and his appeal was heard by First-tier Tribunal Judge Dineen on 10 August 2015. In a decision promulgated on 24 November 2015 he dismissed the appeal under the EEA Regulations because he found that the Claimant could not satisfy the requirements of Regulation 10 (5) or 15 (1) (b). He also found that the appeal under Article 8 ECHR could not succeed because a notice under section 120 of the 2002 Act had not been served and a decision to remove the Claimant had not been taken under the EEA Regulations. However, he allowed the appeal to the extent that it was not in accordance with the law because the application and supporting letter from the Claimant's solicitors made it clear that there were children and family life and this, and section 55 of the 2009 Act, had not been considered.

3. The Secretary of State sought permission to appeal that decision on the grounds that the First-tier Tribunal had materially misdirected itself in remitting the appeal. There was no removal decision and the decision to remit the appeal back to the Respondent was said to be irrational.

4. Permission to appeal was granted by First-tier Tribunal Judge Ransley on 5 May 2016 on the grounds that it was arguable that the Judge erred in law by remitting the decision on the grounds that no lawful decision had been made and in finding that the Secretary of State's decision was unlawful when it was clear that no removal decision had been made.

5. The Claimant was not represented at the hearing. His solicitors, David Williams Immigration & Nationality Consultant in a letter dated 6 June 2016 asked for their written submissions to be taken into account but said they had been requested by the Claimant not to attend the hearing. I therefore exercised my discretion to hear the appeal in the Claimant's absence.

The Hearing

6. Ms Isherwood submitted that the First-tier Tribunal erred in law by remitting the matter to the Secretary of State. She relied on the case of Amirteymour and others (EEA appeals; human rights) [2015] UKUT and referred me to pages 23 and 25 where section 55 was considered. She submitted that it was wholly unarguable that Zambrano should apply. S55 was all encompassed within Article 8 and was not freestanding. The Claimant now had no leave. The refusal letter invited him to apply on another basis. He had not been given removal directions. There was no s120 notice in this case. Even without this case law the Claimant was trying to circumvent the case law and proper consideration of the appeal. The EEA challenge was abandoned and the Claimant had focused on the best interests of the children. The wife had stopped working in 2009. This appeal could not succeed and the Judge was wrong to remit. The Secretary of State could not be criticised for the approach to s55 of the Borders, Citizenship and Immigration Act at the stage of the application.

Discussion and Findings

7. The Secretary of State had not served a section 120 notice under the 2002 Act in this case and no EEA decision to remove had been made. According to the case of Amirteymour and Others in these circumstances an appellant cannot bring a human rights challenge to removal in an appeal under the EEA Regulations. A consideration of the best interests of the child and under s55 of the 2009 Act is made within an Article 8 assessment. It is not a free-standing assessment made outside this context. It is clear from pages 23 and 25 of Amirteymour that the impugned decisions of the First-tier Tribunal in that case involved a consideration of section 55 and the Upper Tribunal found that there was no jurisdiction to carry out such an assessment. In the circumstances I find that the First-tier Tribunal erred in law in remitting the decision to the Respondent as there was no jurisdiction to do so. The First-tier tribunal found that the appeal under Article 8 could not succeed and the proper course in the circumstances was to dismiss the appeal.

Conclusions:
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.

I set aside the decision.

I re-make the decision in the appeal by dismissing it.

There is no direction for anonymity none having been made and none being appropriate on the facts.

Signed Dated: 30 August 2016

Deputy Upper Tribunal Judge L Murray