Upper Tribunal (Immigration and asylum chamber), 2022-11-01, HU/02402/2021 & Ors.
| Appeal Number | HU/02402/2021 & Ors. |
| Hearing Date | 22 July 2022 |
| Published date | 16 November 2022 |
| Date | 01 November 2022 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2021-000100
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2021-000100
[HU/02402/2021; HU/15834/2019; EA/06897/2018]
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 22 July 2022 |
On 1 November 2022 |
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Before
UPPER TRIBUNAL JUDGE blum
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
GBOLAGUN AJIBOLA OLAWOYIN
(anonymity direction NOT MADE)
Respondent
Representation:
For the appellant: Mr S Walker, Senior Home Office Presenting Officer
For the respondent: Mr S Karim, counsel, instructed by Ineyab Solicitors
DECISION AND REASONS
Background
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This appeal has a convoluted history.
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The respondent (“GO”) is a national of Nigeria. He was born on 13 September 2018. He applied for a student Visa on 6 March 2007. Although this application was refused, the decision was successfully appealed and GO was issued with a student visa on 3 December 2007 valid until 30 April 2010. Whilst his appeal was ongoing GO entered the United Kingdom pursuant to a lawfully issued extant visitor’s visa. He overstayed. On 24 November 2007 he was arrested in a different identity and found to be in possession of a forged Nigerian passport. He gave false details to the immigration officers. He was made subject to reporting conditions in his false identity; he reported once then travelled again to Nigeria and was logged as an absconder. He returned to the United Kingdom on 31 December 2007 after his appeal in his true identify was allowed having been issued with entry clearance on 3 November 2007.
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On 29 October 2009, in his true identity, GO applied for a Certificate of Approval for marriage. He married Aditola Ayomide Odesanya (the spouse), a dual British and Nigerian citizen, on 21 April 2009. When he applied for further leave to remain his fingerprints were matched with that of the false identity he previously used.
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On 24 March 2010 GO was convicted of an offence relating to deception (obtaining leave to enter or remain in the United Kingdom by means including deception) for which he received a 12 month sentence of imprisonment. He was served with a deportation order on 19 July 2010. An appeal against the decision to deport him was dismissed on 5 October 2010 and he became appeal rights exhausted on 20 January 2011.
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GO thereafter made various applications to revoke the deportation order, all of which were refused, and one of which attracted a right of appeal. This appeal was dismissed on 29 October 2013 and GO again became appeal rights exhausted on 18 February 2014. He voluntarily departed the United Kingdom on 25 September 2016.
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In the meantime he had a child with his spouse in 2013, and twins were born of the relationship in July 2017. According to her statement of 16 April 2021 GO’s spouse moved to Ireland on 25 September 2016 due to her ‘job relocation’. GO resided with his family in Ireland and was apparently granted a Certificate of Registration as a family member of an EU national on 9 November 2016 by the Irish authorities.
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On 7 May 2017 GO was encountered attempting to fly to the UK mainland at Belfast International airport travelling with his British citizen spouse. He was detained and on 17 May 2017 he was removed to Belfast.
The decisions under appeal
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On 11 June 2018 GO applied for entry clearance as a visitor. This was refused on 28 August 2019 (“the visit decision”). It is not in dispute that the visit decision amounted to a refusal of a human rights claim. GO appealed this decision to the First-tier Tribunal (IAC) pursuant to s.82 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). The visit decision was assigned an appeal reference HU/15834/2019.
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GO had also applied for an EEA Family Permit. On 6 August 2019 the SSHD refused to issue GO with an EEA Family Permit under the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”) on the basis that the refusal was justified on grounds of public policy and on the basis that GO was subject to a deportation order (Reg 23 of the 2016 Regulations). This decision attracted a right of appeal under Reg 36 of the 2016 Regulations. GO appealed this decision. His appeal reference number was EA/06897/2018 (“the EEA decision”). Both the EEA decision and the visit decision were linked by the First-tier Tribunal.
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Prior to the substantive hearing before the First-tier Tribunal there was a Case Management Review Hearing (“CMRH”) before Judge of the First-tier Tribunal Burnett. On the day of the substantive appeal hearing, 26 April 2021, Judge Burnett additionally considered that he had before him a further human rights appeal concerning a decision of the SSHD dated 4 March 2021 refusing to revoke the deportation order made against GO on 19 July 2010 (“the revocation decision”). Judge Burnett’s decision did not contain a First-tier Tribunal reference number in respect of the revocation decision.
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According to Judge Burnett the revocation decision was served on GO during a Case Management Hearing arising from his two other linked appeals, and that it was agreed between the parties at that Case Management Hearing that:
“[GO] would appeal against the refusal to revoke the deportation order and waive the procedural requirements, so that the Tribunal could consider all the decisions of the [SSHD]”
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Email correspondence provided by GO’s solicitors indicated that, on 1 April 2021, a Notice of Appeal relating to the revocation decision had been lodged with the First-tier Tribunal following directions issued by Judge Burnett, presumably at the earlier Case Management Hearing.
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It was therefore Judge Burnett’s view that GO had appealed the revocation decision and that the appeal against this decision had been consolidated with GO’s two extant appeals (see [2] of the Judge Burnett’s decision). Judge Burnett understood that he had before him an appeal against the refusal to revoke the deportation order (see [44]). It also appears from Judge Burnett’s decision that the First-tier Tribunal Presenting Officer accepted that the revocation decision was a validly live appeal for determination by the judge (consider his submissions recorded at [18] & [19]).
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Having heard oral evidence (given remotely) from GO and his wife, and having considered GO’s challenge to the EEA decision, Judge Burnett allowed the EEA appeal on the basis that the refusal to issue the Family Permit was not justified on public policy grounds in accordance with Reg 27 of the 216 Regulations, and on the basis that the extant deportation order was not made under Reg 32(3) of the 2016 Regulations. At [44] Judge Burnett stated:
“I would note here that given that the refusal of the EEA family permit is contrary to EU law, and the conclusions I have reached regarding the threat posed by [GO], the [SSHD] should apply their own guidance in respect of the deportation order and it should be reviewed in light of this decision. The [SSHD’s] refusal to revoke the deportation order does not apply and consider the appropriate principles of EU law. The refusal simply refers to the Immigration rules and section 117 of the Nationality, Immigration and Asylum Act 2002 (as amended).”
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Then under the heading “Article 8”, at [46] the judge stated:
“I have not considered this aspect further. In my judgment the considerations under the regulations are wider that an article 8 consideration and I have allowed the appeal under the regulations.”
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Although Judge Burnett considered that he had already dealt with the revocation decision, a hearing in respect of this decision, which had now been assigned the reference number ‘HU/02402/2021’, was nevertheless listed before Judge of the First-tier Tribunal Bennett on 17 December 2021.
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A note by Ms S McKenzie of the Presenting Officers Unit Central London dated 17 December 2021 suggests that, having discussed with colleagues, she made submissions that Judge Bennett had no jurisdiction to hear the appeal. It is not altogether clear why the submission was made but it appears that it was based on a linkage between HU/15834/2019 and HU/02402/2021 and the fact that an application by the SSHD to appeal HU/15834/2019 was pending before the Upper Tribunal, and the fact that Judge Burnett had already considered “all aspects” and that there was “no further decision left at appeal”. I observe that, although initially refused permission to appeal by the First-tier Tribunal, the SSHD was eventually granted permission to appeal by Upper Tribunal Judge Macleman in a decision dated 4 March 2022.
There was a brief hearing before Judge Bennett on 17...
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