Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/51567/2013

THE IMMIGRATION ACTS

Heard at Royal Courts of Justice, Belfast
Decision & Reasons Promulgated
On 2 August 2016
On 13 September 2016

Before

UPPER TRIBUNAL JUDGE O'CONNOR

Between

Secretary of State for the Home Department
Appellant

and

VERONIQUE [T]
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr M Matthews, Senior Presenting Officer
For the Respondent: Ms M Gavin, instructed by Francis Hanna & Co Solicitors

DECISION AND REASONS

1. The appellant before the Upper Tribunal is the Secretary of State for the Home Department. I shall refer herein to Ms [T] as the claimant.
2. On 30 August 2013 the claimant applied for an EEA residence card as the partner of a Mr [W], an Irish national. The couple live together with Mr [W]'s child from a former relationship. The Secretary of State refused the application by way of a decision dated 23 November 2013 on the basis that it had not been demonstrated that Mr [W] was a qualified person pursuant to Regulation 6 of the Immigration (EEA) Regulations 2006.
3. It is prudent to observe at this juncture that the Secretary of State has neither issued a removal decision nor provided a notice pursuant to Section 120 of the Nationality, Immigration and Asylum Act 2002.
4. The claimant appealed the decision of 23 November 2013 to the First-tier Tribunal. This appeal came before First-tier Tribunal Judge Kempton on 10 February 2015 and was allowed on human rights grounds (Article 8 ECHR) in a decision of 17 February 2015. It was accepted during the course of that appeal that the claimant did not meet the requirements of the EEA Regulations 2006.
5. The Secretary of State appeals to the Upper Tribunal with the permission of First-tier Tribunal Judge Astle, granted on 17 April 2015. At a hearing on 19 October 2015 the President adjourned the determination of the case pending the appeal to the Court of Appeal of the Upper Tribunal's decision in Amirteymour & Others (EEA appeals: human rights) [2015] UKUT 00466.
6. Whilst the decision of Amirteymour remains pending before the Court of Appeal, the legal issue therein has now been determined in TY (Sri Lanka) v Secretary of State for the Home Department [2015] EWCS Civ1233. In TY the Secretary of State refused the claimant's application for an EEA residence card made as the dependant of a family member of an EEA national residing in the United Kingdom. The claimant appealed that decision to the First-tier Tribunal on two grounds; first, that he was entitled to remain in the UK under the EEA Regulations and, second, that he had an entitlement to asylum because the situation in Sri Lanka had deteriorated and he would be persecuted if he were to be returned there. The First-tier Tribunal dismissed the claimant's appeal on both grounds, the latter ground being rejected on the basis that the Secretary of State had not issued a notice under Section 120 of the 2002 Act and, consequently, that the applicant was not entitled to pursue asylum grounds in an appeal against the Secretary of State's refusal to issue an EEA residence card. The matter came before the Upper Tribunal who concurred entirely with the conclusions of the First-tier.
7. On appeal to the Court of Appeal Jackson LJ, giving the judgment of the court, said as follows:
"27. Since there is no Section 120 One-Stop Notice, the appellant is confined to the subject matter of the original decision. That is a decision that the appellant does not fulfil the requirements of the EEA Regulations. That decision is unquestionably correct. However strong or weak the appellant's claims may be under the provisions of the Refugee Convention and ECHR, those provisions could not entitle the appellant to receive a residence card under the EEA Regulations. ...
33. Ms Jegarajah relies upon paragraph 16-18 of Laws LJ's judgment. She submits that in the present case if, in the future, the appellant is removed that removal will be "in consequence of" the refusal to give him a residence card. Therefore the decision to refuse a residence card will have the effect of putting the UK in breach of the Refugee Convention and ECHR.
34. I have carefully considered this argument and re-read JM with Ms Jegarajah's submissions in mind. I have come to the conclusion, however, that those submissions are flawed. The crucial feature of JM was that the Secretary of State served a section 120 one stop notice: see the last sentence of [23]. That had two consequences. First, if M's appeal to the AIT failed the Secretary of State would be able to proceed to removal, without giving M any opportunity to raise human rights arguments or to appeal on human rights grounds. Secondly, M was fully entitled to advance all his arguments under ECHR and the AIT was obliged to consider them. The AIT failed to do so, because it misconstrued section 84 (1) (g) of the 2002 Act. Accordingly the Court of Appeal allowed M's appeal. The present case differs from JM in a crucial respect, namely that here there was no one stop notice under section 120.
35. It is impossible to say that the Secretary of State's decision to withhold a residence card (a decision which is correct under the EEA Regulations) will or could cause the UK to be in breach of the Refugee Convention or the ECHR. The UK will only be in breach of those Conventions if in the future the appellant makes an asylum or human rights claim, which the Secretary of State and/or the Tribunals incorrectly reject.
36. In the result therefore I reach a similar decision on the issues before us to the decision reached by the Upper Tribunal in Amirteymour?
8. At the outset of the hearing before me Ms Gavin sought an adjournment on the basis that it was still appropriate to await the Court of Appeal's decision in Amirteymour; the decision in TY, it is said, being distinguishable because it dealt with the question of whether the Tribunal were entitled to consider a Refugee Convention ground as opposed to a Human Rights ground. I refused the adjournment concluding that TY could not be materially distinguished from the factual matrix in Amirteymour on such basis. In my conclusion the rationale deployed by the court in TY applies equally, whether the 'additional' ground being pursued before the Tribunal relates to the Refugee Convention or whether it is a human rights based ground. That this is so is emphasised by the court itself in TY, albeit in obiter.
9. Ms Gavin, having been unsuccessful in the adjournment application, subsequently submitted that even if the ratio of TY is directly applicable to the facts of the instant appeal, any error in allowing the appeal on human rights grounds was not material to the FtT's decision because it was, in any event, bound to have allowed the appeal on the basis that the SSHD's decision would lead to a breach of Article 24 of the EU Charter of Fundamental Rights.
10. I reject this contention for two discrete reasons.
11. First, it is not a point that has ever been put to the Secretary of State, nor was such a ground pursued before the First-tier Tribunal; indeed, it has not been raised in these proceedings prior to the instant hearing before the Upper Tribunal - despite the fact that there has been ample opportunity to do so at both levels of the Tribunal. In circumstances where the point was not previously taken, particularly before the First-tier Tribunal, it cannot be said in my view that the First-tier Tribunal was bound to have allowed the appeal on that ground.
12. In any event, I conclude that if the FtT was entitled to consider such ground, which of itself I find it was not for all the reasons given TY, the ground itself is without merit.
13. Article 24 of the Charter reads as follows:
"(1) Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.

(2) In all actions relating to children, whether taken by public authorities or private institutions, the child's best interests must be a primary consideration.

(3) Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests."
14. It is impossible to say that the Secretary of State's decision to refuse to issue an EEA residence card will lead to a breach Article 24 of the Charter. As indicated above there has been no decision to remove the claimant. If the claimant seeks to remain here on a basis other than pursuant to the EEA Regulations, including in reliance on an ECHR claim or in pursuance of her rights under the Charter, she can make the relevant application to the Secretary of State. It is only if such application is rejected by the Secretary of State incorrectly that it could be said that the UK would be in breach, on the facts of this case, of the ECHR and/or the Charter - including Article 24 thereof.
15. For the reasons given above I conclude that the First-tier Tribunal erred in law in allowing the claimant's appeal on human rights grounds and I set its decision aside in that respect.
16. As to the re-making, there was no submission before me that the claimant now meets the requirements of the EEA Regulations 2006 and neither can, for reasons set out above, she invoke the Human Rights Convention or Article 24 of the Charter in support of her claim. If she could invoke the aforementioned, such grounds fail ostensibly for the reasons identified in TY and set out above.

Decision
The decision of the First-tier Tribunal contains an error of law capable of affecting the outcome of the appeal. It is therefore set aside.
The Upper Tribunal re-makes the decision on claimant's the appeal, dismissing it on all grounds.

Signed:

Upper Tribunal Judge O'Connor
2 August 2016