Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/48600/2014

THE IMMIGRATION ACTS

Heard at Newport (Columbus House)
Decision & Reasons Promulgated
On 26 January 2017
On 2 February 2017

Before

MR C M G OCKELTON, VICE PRESIDENT
UPPER TRIBUNAL JUDGE GRUBB

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MOHAMED IBRAHIM ELDESOUKY RAKHA
Respondent

Representation:

For the Appellant: Mr M Diwnycz, Senior Home Office Presenting Officer
For the Respondent: No representative

DECISION AND REASONS
1. This is an appeal by the Secretary of State against a decision of the First-tier Tribunal (Judge Clemes) allowing the respondent's appeal against a decision taken on 17 November 2014 to refuse his application for a permanent residence card under reg 18(2) of the Immigration (EEA) Regulations 2006 (SI 2006/1003 as amended) (hereafter "the EEA Regulations").
2. Judge Clemes found that the respondent had been in a "durable relationship" with an EEA national, Ms Aleksandra Dobron, a Polish citizen exercising treaty rights in the UK for a period of five continuous years between April 2008 and May 2013. As a result, the respondent had established a permanent right of residence under reg 15(1)(b) of the EEA Regulations as a "family member" of an EEA national who has resided in the UK with an EEA national in accordance with the EEA Regulations for a continuous period of five years.
3. The Secretary of State sought permission to appeal on essentially two grounds. First, the respondent was not a "family member" by virtue of his "durable relationship" with Ms Dobron but, rather, was an "extended family member" under reg 8(5) of the EEA Regulations. Consequently, he could not acquire a permanent right of residence as a 'family member' under reg 15(1)(b). Secondly, in any event the respondent had only cohabited with Ms Dobron from July 2008 until May 2013 and so had not been in a "durable relationship" for at least five years.
4. On 18 August 2015, the First-tier Tribunal (Judge O'Garro) granted the Secretary of State permission to appeal.
5. Thus, the appeal came before us.
6. Mr Diwnycz, who represented the Secretary of State, accepted that the respondent had a right of appeal under the EEA Regulations against a refusal of a permanent residence card under reg 18(2). He accepted that the Tribunal's reasoning in Sala (EFMs: Right of Appeal) [2016] UKUT 416 (IAC) did not apply as the respondent had an entitlement to that residence card if he established his permanent right of residence under reg 15(1)(b). However, Mr Diwnycz submitted, relying on the grounds, that reg 15(1)(b) did not apply to the respondent. He was not a "family member" until he was issued with a residence card as an "extended family member" on the basis of his "durable relationship" with Ms Dobron and he had not been issued with a residence card.
7. We accept the Secretary of State's submissions. The right of permanent residence in reg 15(1)(b) applies to a
"family member of an EEA national who is not himself an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years."
8. That right may only be acquired by a "family member" of an EEA national. The respondent does not fall within the definition of "family member" under reg 7. In particular, he was not married to Ms Dobron and is not a civil partner. Instead, on the judge's factual findings, the respondent was a "extended family member" by virtue of reg 8(5) as he had established a "durable relationship" with Ms Dobron. He would only become (more accurately "be treated as") a "family member" by virtue of reg 7(3) if he was issued with a residence card on that basis. Regulation 7(3,) so far as relevant, provides as follows:
"? a person who is an extended family member and has been issued with ? a residence card shall be treated as the family member of the relevant EEA national for as long as he continues to satisfy the conditions in regulation [8(5)] in relation to that EEA national and the ? card has not ceased to be valid or been revoked." (our emphasis)
9. The respondent has never applied for, and has never been issued with, a residence card as an extended family member based upon his durable relationship with Ms Dobron. Whilst, therefore, the judge's finding that the respondent had a "durable relationship" with Ms Dobron between April 2008 and May 2013 was a finding that the respondent was during that time a "extended family member", as he had not been issued with a residence card on that basis he was not treated as a "family member" by virtue of reg 7(3). He could not, therefore, acquire a permanent right of residence as a "family member" under reg 15(1)(b) and was, accordingly, not entitled to be issued with a permanent residence card recognising that right under reg 18(2).
10. For these reasons, therefore, the judge erred in law in allowing the respondent's appeal against the refusal to issue him with a permanent residence card under reg 18(2). We set aside that decision and substitute a decision dismissing the respondent's appeal on that ground.
11. Before us the respondent, who was unrepresented, raised Art 8. However, in the absence of a s.120 notice inviting the respondent to raise additional grounds (which was not contained within the decision letter), the judge had no jurisdiction to consider Art 8 (see TY (Sri Lanka) v SSHD [2015] EWCA Civ 1233). The judge was confined to determining the subject matter of the original decision, namely whether the respondent was entitled to a permanent residence card which, for the reasons we have given, he was not.
Decision
12. Accordingly, for the reasons we have given, the Secretary of State's appeal to the Upper Tribunal is allowed.
13. We set aside the decision of the First-tier Tribunal allowing the respondent's appeal under the EEA Regulations and we substitute a decision dismissing the respondent's appeal under those Regulations.

Signed

A Grubb
Judge of the Upper Tribunal

Date