Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02867/2015

THE IMMIGRATION ACTS

Heard at Stoke
Decision and Reasons Promulgated
on 12 October 2016
on 13 October 2016

Before

UPPER TRIBUNAL JUDGE HANSON

Between

ERANDA RUWAN WEERASINGHA
(Anonymity direction not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Lingajothy of Linga and Co
For the Respondent: Mr C Bates Senior Home Office Presenting Officer.

DECISION AND REASONS

1. This is an appeal against a decision of First-Tier Tribunal Judge O R Williams promulgated on the 29 July 2016 following a hearing a Manchester on the 14 July 2016.
2. The appellant is a national of Sri Lanka born on the 15 May 1990. The Judge considered the evidence provided and dismissed the claim on protection and human rights grounds.
3. Permission to appeal to the Upper Tribunal was sought on the basis the Judge erred in applying UK domestic regulation to the assessment of the relationship between the appellant and his partner, who it is claimed are in a durable relationship, rather than considering the same under the Immigration (European Economic Area) Regulations 2006.
4. Permission was granted on the basis that "In what was otherwise a detailed and thorough decision it may be that the Judge erred in not applying the EEA Regulations and in not considering the durable relationship aspect of the EEA Regulations".

Error of law

5. No arguable legal error material to the decision to dismiss the appeal is made out in relation to the dismissal of the appeal on protection and/or human rights grounds.
6. In relation to the EEA aspect, the original grounds of appeal contain a challenge to the respondent's decision "(a) To refuse him international protection based upon the 1951 Refugee convention, and, (b) To fail to recognise his human rights pursuant to the 1950 European Convention European Convention on Human Rights". There is no challenge to the decision on an EEA law ground.
7. Mr Lingajothy was asked whether he had applied for and been granted permission to amend his grounds to include this additional head of challenge. He stated he had neither applied for nor been granted leave to amend although the EEA aspects formed part of his skeleton argument and oral submissions. That may be the case but neither constitutes an application to amend or grant of such permission.
8. It was conceded by Mr Lingajothy that this is case to which the provisions of section 85(5) Nationality, Immigration and Asylum Act 2002, as amended by the Immigration Act 2014, applies. Section 85(4) and (5) are relevant. The complete section states:
85 Matters to be considered
(1) An appeal under section 82(1) against a decision shall be treated by the Tribunal as including an appeal against any decision in respect of which the appellant has a right of appeal under section 82(1).
(2) If an appellant under section 82(1) makes a statement under section 120, the Tribunal shall consider any matter raised in the statement which constitutes a ground of appeal of a kind listed in section 84 against the decision appealed against.
(3) Subsection (2) applies to a statement made under section 120 whether the statement was made before or after the appeal was commenced.
(4) On an appeal under section 82(1) against a decision the Tribunal may consider any matter which it thinks relevant to the substance of the decision, including a matter arising after the date of the decision.
(5) But the Tribunal must not consider a new matter unless the Secretary of State has given the Tribunal consent to do so.
(6) A matter is a "new matter" if-
(a) it constitutes a ground of appeal of a kind listed in section 84, and
(b) the Secretary of State has not previously considered the matter in the context of-
(i) the decision mentioned in section 82(1), or
(ii) a statement made by the appellant under section 120.
9. As no application to amend the grounds of appeal has been made it is not disputed by Mr Lingajothy that the EEA issue is a new matter. As such, the First-tier Tribunal had no jurisdiction to consider the new matter unless the Secretary of State had given the Tribunal consent to do so. Such consent was not sought or given meaning the Tribunal had no jurisdiction to consider the submissions made in relation to the EEA aspects.
10. The fact the Judge failed to consider any right arising from the existence of the durable relationship is therefore not a matter said to be tainted by arguable legal error as jurisdiction has not been established.
11. The solution, as the respondent asserts in her Rule 24 reply, is for the appellant to make a formal application for a residence card on the basis of the claim to be in a durable relationship with an EEA national exercising treaty rights in the United Kingdom.

Decision

12. There is no material error of law in the First-tier Tribunal Judge's decision. The determination shall stand.

Anonymity.

13. The First-tier Tribunal did not make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

I make no such order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

Signed??????????????????.
Upper Tribunal Judge Hanson

Dated the 12 October 2016