Upper Tribunal (Immigration and asylum chamber), 2018-05-03, EA/13716/2016
| Jurisdiction | UK Non-devolved |
| Date | 03 May 2018 |
| Published date | 22 May 2018 |
| Hearing Date | 19 April 2018 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | EA/13716/2016 |
Appeal Number: EA/13716/2016
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/13716/2016
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 19th April 2018 |
On 3rd May 2018 |
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Before
UPPER TRIBUNAL JUDGE JACKSON
Between
jesse affum kwakye
(ANONYMITY DIRECTION not made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms C Appiah of Counsel, instructed by Vine Court Chambers
For the Respondent: Mr P Duffy, Home Office Presenting Officer
DECISION AND REASONS
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The Appellant appeals against the decision of First-tier Tribunal Judge James promulgated on 13 October 2017, in which the Appellant’s appeal against the decision to revoke his EEA Residence Card dated 16 November 2016 was dismissed.
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The Appellant is a national of Ghana, born on 5 January 1986 who had been issued with an EEA Residence Card on 26 January 2015 as confirmation of a right to reside in the United Kingdom as a person in a durable relationship with an EEA national exercising treaty rights. That followed an initial application for an EEA Residence Card as the spouse of an EEA national exercising treaty rights in United Kingdom, which was refused by the Respondent on the basis that there was no valid marriage, it having been conducted by proxy in Ghana but not in accordance with all of the required formalities. That decision was upheld on appeal by Judge Higgins in a decision promulgated on 2 October 2014, albeit also finding in the alternative that the Appellant was in a durable relationship and therefore could be considered by the Respondent for an EEA Residence Card as an extended family member under Regulation 17(d) of the Immigration (European Economic Area) Regulations 2006 (the “EEA Regulations”).
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The Respondent revoked the EEA Residence Card on the basis that the Appellant’s ex-partner has completed a public statement on 20 June 2016 confirming that the relationship no longer subsisted, they no longer live together nor do they intend to live together in the future. As a result, the Respondent considered that the Appellant was no longer in a durable relationship and therefore could not continue to satisfy the requirements in Regulation 8 of the EEA Regulations. The revocation was specifically under Regulation 8(5) and 20(2) of the same.
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The Appellant’s grounds of appeal to the First-tier Tribunal were on the basis that although he accepted he was now estranged from his EEA national partner, he had a new partner working in the United Kingdom who is a British citizen, with whom he began a relationship in March 2016 and they were expecting their first child together. The grounds set out the requirements of Appendix FM of the Immigration Rules for someone to be granted leave to remain as a partner, relying on satisfaction of the same and on Article 8 of the European Convention on Human Rights, such that he had an alternative basis of stay in the United Kingdom.
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Judge James dismissed the appeal, having considered it on the papers, in a decision promulgated on 13 October 2017. It was noted in the decision that there was a lack of any documents submitted by the Appellant in support of his appeal and noted that having accepted that he was no longer an extended family member of an EEA national since at least March 2016, the EEA appeal against the revocation decision automatically failed and had to be dismissed. The conclusion being that the Respondent was correct factually and legally to revoke the residence permit. In relation to the ground submitted as to the grant of leave to remain on the basis of family life under Appendix FM of the Immigration Rules, it was noted that no such application had been made to the Respondent and therefore no decision by the Respondent to consider on appeal. Finally, the First-tier Tribunal stated that it had no jurisdiction to consider an appeal on Article 8 grounds.
The appeal
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The Appellant appeals on two grounds, first, that the First-tier Tribunal was mistaken in considering that the Appellant was still seeking an oral hearing when he had requested that the appeal should be determined on the papers, and secondly proceeded on the mistaken basis that the Appellant had failed to file and serve any evidence, a bundle having been faxed to the First-tier Tribunal on 2 October 2017 which contained written submissions, case law, marriage certificate and letter from the Ghana High Commission dated 25 April 2014.
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Permission to appeal was granted by Judge Mailer on 26 February 2017 on the basis that there was an arguable procedural unfairness in the hearing before the First-tier Tribunal.
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At the oral hearing, there was some discussion between the parties as to the basis on which the appeal was proceeding given that the documents which were forwarded to the First-tier Tribunal but not before Judge James when making his decision, did not engage at all with the actual decision being appealed, namely the revocation of an EEA Residence Card issued under Regulation 8 of the EEA Regulations but instead focused upon whether or not the Appellant should in fact have been issued with an EEA Residence Card as a spouse rather than as an extended family member.
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The thrust of the written submissions on behalf of the Appellant sent to the First-tier Tribunal were that the previous decision of Judge Higgins, which relied upon the Upper Tribunal decisions in Kareem (proxy marriages) Brazil [2014] UKUT 00024 (IAC) and TA and others (Kareem explained) Ghana [2014] UKUT 00316 (IAC), was in error given that the Court of Appeal had overturned those decisions in Awuku v Secretary of State for the Home Department [2016] EWCA Civ 1303. As such, it was claimed that in fact the Appellant had entered into a valid customary marriage recognised under Ghanaian law (with a letter from the High Commission confirming its validity) and should have been issued with an EEA Residence Card under Regulation 7 of...
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