Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/01343/2015
OA/01348.2015
OA/01349/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 8 November 2016
On 9 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE A M BLACK

Between

ENTRY CLEARANCE OFFICER (ISLAMABAD)
Appellant
and

(1) GHULAM ABBAS
(2) AZIZ KULSOOM
(3) MALIK ISHRAT ABBAS
(ANONYMITY DIRECTION NOT MADE)
Respondents

Representation:
For the Appellant: Mr K Norton, Senior Presenting Officer
For the Respondents: None

DECISION AND REASONS
1. The respondents are citizens of Pakistan who appealed against the decisions of the Entry Clearance Officer ("ECO") to refuse them entry to the UK. Their appeals were allowed by Judge of the First-tier Tribunal Miller ("the FTTJ") in a decision promulgated on 16 February 2016.
2. For ease of reference, I refer to the appellant as the ECO and the respondents as the claimants in this appeal.
3. No anonymity direction was made in the First-tier Tribunal and none was requested before me; nor is such a direction required.
4. Permission to appeal was granted by Upper Tribunal Judge Canavan on 10 October 2016 as as follows:
"2. A full copy of the original application form is likely to be needed to clarify under what provision the application was made. However, on the face of the evidence before the Tribunal, the form indicated that the application was made under The Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations 2006"). The application was treated as an application for a family permit and the notice of decision made clear that the right of appeal arose from regulation 29 of the EEA Regulations 2006. In the circumstances it is arguable that the judge erred in determining the appeal under the immigration rules instead of the EEA Regulations.
3. In the alternative, even if the application was made on the wrong form and was intended to be an application for a visit visa under the UK immigration rules (although there is nothing to suggest that I [sic] was) it is arguable that the judge erred in allowing the appeal under the immigration rules in circumstances where there would only have been a restricted right of appeal on human rights grounds.
4. Permission to appeal is granted".
Thus the appeal came before me today.
5. Mr Norton, for the ECO, relied on the grounds of appeal and the grant of permission to appeal. He submitted that there was a lack of clarity as to the nature of the application but that the ECO had referred to the EEA Regulations in his decision. If the application had been made under the Immigration Rules, the appellants had only limited rights of appeal in any event. If the application had been made under the EEA Regulations, the appellants could not succeed because there was no evidence of dependency between the appellants and the EEA national and her husband. He relied on regulations 7(1)(c), 8(2) and 12.
6. Mr Abbas, the appellants' sponsor, attended the hearing with his wife (the EEA national) and made submissions to the effect that he had instructed solicitors to make an application for a visit visa on behalf of the appellants. He accepted that the grounds of appeal before the First-tier Tribunal referred to the EEA Regulations as well as Article 8 and the Immigration Rules. He accepted there had been no evidence before the First-tier Tribunal to demonstrate any dependency by the appellants on himself or his EEA spouse; he confirmed the first appellant had been working at the date of decision.
7. Whatever the sponsor believed the application to be (and he was not sure) the decision of the ECO was made under the EEA Regulations, as is clear from the notice of decision which refers to an application having been made "as the family member of a European Economic Area national ?" in the UK. The decision was made by reference to Regulations 7 and 12 of the EEA Regulations and the appellants were notified of a right of appeal under the EEA Regulations. The appellants issued notices of appeal and their grounds clearly refer inter alia, albeit not by reference to specific regulations, to the requirements of the EEA regulations.
8. The appellants exercised their rights of appeal pursuant to Regulation 26 and thus the issue for the FTTJ to decide was whether the decisions of the respondent were in breach of the EEA Regulations.
9. The FTTJ's decision makes no reference to the specific requirements of the EEA Regulations or indeed the Immigration Rules. Whilst it is not stated specifically in the decision, it can be inferred from [14] that the appeals were allowed under paragraph 41 of the Immigration Rules. However, the appellants have no right of appeal against any decision to refuse an application under the Immigration Rules; any right of appeal would be limited to the ground that the decision places the United Kingdom in breach of the European Convention on Human Rights. This is because, in respect of all applications submitted after 25 June 2013, a person refused entry clearance to visit relatives in the UK is unable to appeal against that immigration decision except on limited (including human rights) grounds by virtue of s52 of the Crime and Courts Act 2013, the commencement date and transitional provisions being set out in the Crime and Courts Act 2013 (Commencement No 1 and Transitional Saving Provision) Order (SI 2013/1042).
10. The FTTJ failed to consider the appeals pursuant to the EEA Regulations; this was an error of law, given that the decision was made under those Regulations and the right of appeal was exercised pursuant to those Regulations.
11. The error was material because there was no evidence before the FTTJ that the appellants were dependent on the EEA national and/or her spouse, Mr Abbas, as required by Regulations 7(1)(c) and 8(2). Nor was there evidence before the FTTJ that the appellants had health issues. The decision of the FTTJ must therefore be set aside and remade. The appellants have failed to demonstrate they fulfil the criteria in the EEA Regulations for rights of admission to the UK under those Regulations.
12. The grounds of appeal in the First-tier Tribunal make reference to the refusals interfering with the protected rights of the appellants under Article 8. However, I am unable to find that Article 8 is engaged by the decisions: the consequences are not so grave as to engage that Article: the appellants have the option of making applications for visit visas under the Immigration Rules. There is no evidence before me that they have been refused such visas in the past and their applications would be considered on the merits.
13. For these reasons, the decision of the FTTJ must be set aside and I remake it to find that the appeals are dismissed.
Decision
14. The making of the decision of the First-tier Tribunal involved the making of a material error on a point of law.
15. I set aside the decision of the First-tier Tribunal.
16. I remake the decision and dismiss the appeals.

A M Black
Deputy Upper Tribunal Judge Dated: 8 November 2016

Fee Award
These appeals have been dismissed and there can be no fee award.

A M Black
Deputy Upper Tribunal Judge Dated: 8 November 2016