Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/51123/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
on 5 October 2016
on 6 October 2016

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

USMAN FAROOQ
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

For the Appellant: Mr Cecil Arthur

For the Respondent: Ms J Isherwood

DETERMINATION AND REASONS

1. The appellant's representative advised that he was assisting the appellant as a family friend, otherwise than in the course of a business carried on (whether or not for profit) by him or by another person, under reference to the 1999 Act, section 82(2) and to RK [2011] UKUT 00409.
2. The respondent's representative is a Senior Home Office Presenting Officer.
3. The appellant is a citizen of Pakistan. He applied for a residence card under the Immigration (EEA) Regulations 2006 ("the regulations") as a person in a durable relationship with an EEA national, Ms B W Kulaga. The respondent refused the application on the view that the relationship was entered into "for the sole purpose of being able to remain here in the UK and obtaining the benefits of EU law" (page 2 of letter dated 12 December 2014). The letter and accompanying notice advised the appellant that he was entitled to appeal under section 82 of the 2002 Act and regulation 26.
4. FtT Judge Wellesley-Cole dismissed the appellant's appeal by decision promulgated on 23 December 2015, finding that the appellant had failed to establish that he is in a durable relationship.
5. UT Judge Plimmer granted permission to appeal to the UT on 1 August 2016. She thought it was arguable that the FtT erred in finding that there were no bank statements in joint names when there had been produced a statement from Barclays bank of an account in joint names, a mistake of fact which arguably caused such unfairness as to amount to error of law; and that the judge arguably erred also by failing to consider whether the appellant genuinely believed he had leave when he did not.
6. The second point is relevant to the genuineness of the appellant's intentions when entering into the relationship.
7. The respondent accepts that the judge overlooked the joint bank account.
8. Prior to the UT hearing the respondent acknowledged that curtailment of leave was not served directly on the appellant. However, the respondent says that he could be expected to have known about the revocation of his college's licence, and Ms Isherwood said that he must have been aware that he had no leave before he applied further to the respondent.
9. Mr Arthur referred to a gas bill in joint names which was before the FtT. I have also noticed a council tax bill in the name of the appellant and of the EEA national, to which the judge does refer; it names also a third party.
10. The respondent's West London Arrest Team called at the appellant's address on 11 December 2014. He was there, and so was Ms Kulaga. The team's report describes what was found, including "emails" on their respective mobile phones [Mr Arthur said these were in fact text messages] "not what one would usually expect from a genuine couple ? mostly over-sentimentalised love messages".
11. There was some force in Mr Arthur's argument that the observations recorded in the report are not much of a foundation for the conclusions it so strongly expressed. However, the judge was entitled to give the report some weight against the appellant, and she correctly reminded herself that she was to look at the matter independently.
12. Ms Isherwood argued that such error as could be identified was immaterial. She pointed out that the judge based her findings also on the cross-examination of the witnesses.
13. The judge seems to have found this a finely balanced case. She refers to examining the documents "in the plausible context of cohabitation". She then says incorrectly that none of the documents "were in joint names to suggest commitment to one another", which was obviously a feature she found of some significance. The cross-examination, as Mr Arthur pointed out, went to the immigration history rather than to undermining the relationship directly.
14. I do not think it could safely be said that even if her misconceptions about the facts had been corrected, the judge would have reached the same conclusion.
15. If there were no more to the case, that would be a finding of legal error plainly requiring a fresh hearing in the FtT.
16. The further ingredient is that the respondent now seeks to rely upon Sala [2016] UKUT 411, which is headnoted, "There is no statutory right of appeal against the decision of the SSHD not to grant a residence card to a person claiming to be an extended family member".
17. That line taken by the SSHD is contrary to the terms of the decision giving rise to these proceedings and to the SSHD's submissions in Sala; but if there is no right of appeal, that is the end of the case.
18. The appellant argued that Sala is wrongly decided and ought not to be applied, for these reasons:
(a) regulation 26(2A) has wider application than just to a person who applied for a residence card as a durable partner;

(b) the UT applied too narrow a reading to regulation 2(1), and ought to have applied a purposive reading; and

(c) the UT failed to appreciate the principle of legitimate expectation provided in EU law.
19. These points were elaborated at greater length in written and oral submissions for the appellant, but with all respect to Mr Arthur, who did his best to rise to this challenging test, I discerned no sustainable line of argument that Sala is wrong.
20. The UT found the question it posed for itself in Sala difficult to answer. The crucial point was that a case such as the present involves a discretion not an entitlement, and so does not concern a person's entitlement to be issued with a residence card, hence no right of appeal in terms of regulation 26.
21. There are difficulties arising from Sala. It may be that the regulations cover other decisions by the respondent which at least arguably involve an exercise of discretion, but as to which the existence of a right of appeal has never been disputed e.g. regulation 10(5)(d)(iv). That might tend against the outcome in Sala. Sala has the unfortunate result that persons seeking to challenge an adverse decision of this nature, even one which states that there is a statutory right of appeal, have only the remedy of judicial review; in which it might be suggested that they should first exhaust any possibility of a statutory appeal.
22. Sala is not binding upon me, but it is a reported decision, precisely in point, of a Vice-Presidential panel reached after long and careful consideration. The appellant's challenge in this case, in my view, failed to identify the ratio of Sala or to provide any reason not to apply it.
23. As explained above, if a different outcome had been reached in respect of Sala, I would have remitted this case to the FtT.
24. Disposal: The appellant had no right of appeal. The FtT had no jurisdiction to decide the appeal. It erred in law in doing so. Its decision is set aside. The decision substituted is that there was no valid appeal before the FtT.
25. No anonymity direction has been requested or made.

6 October 2016
Upper Tribunal Judge Macleman