Upper Tribunal (Immigration and asylum chamber), 2017-04-21, EA/00743/2016 & EA/00744/2016
| Appeal Number | EA/00743/2016 & EA/00744/2016 |
| Hearing Date | 05 April 2017 |
| Published date | 09 June 2022 |
| Date | 21 April 2017 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
IAC-AH-co-V2 Appeal Numbers: ea/00743/2016
ea/00744/2016
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: ea/00743/2016
ea/00744/2016
THE IMMIGRATION ACTS
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Heard at Manchester |
Decision & Reasons Promulgated |
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On 5 April 2017 |
On 21 April 2017 |
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Before
DEPUTY UPPER TRIBUNA L JUDGE D N HARRIS
Between
mr f T s (a minor) (1)
mr g A s (a minor) (2)
(ANONYMITY DIRECTION made)
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellants: Mr F T S (Senior) – Non-Legal Representative
For the Respondent: Mr G Harrison, Home Office Presenting Officer
DECISION AND REASONS
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The Appellants are minor citizens of Ghana born respectively on 17th December 2006 and 15th December 1999. The Appellants had made application for an EEA family permit to join A L in the United Kingdom respectively on the basis that in the case of the first Appellant A L was married to her uncle and on behalf of the second Appellant that A L was his claimed sister-in-law. Those applications are dated 4th January 2016. They were refused by the Secretary of State who noted that both claims sought to rely on their being extended family members of A L in the first instance and that in the instance of the second Appellant he had been legally adopted by M O and that the Entry Clearance Officer noted that the second Appellant had failed to provide satisfactory evidence to indicate that M O was related to F T S Senior as claimed.
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It is important to note that renewed Notice of Refusals were issued on 11th February 2016. Application was again made thereunder for a family permit and was considered under Regulation 7 and 8 respectively of the Immigration (European Economic Area) Regulations 2006. Within that it was noted that M O was an EEA family member dependent upon A L and the Secretary of State noted that M O’s EEA retained rights were not transferable to A L and as such she is unable to act as an EEA Sponsor.
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An appeal was lodged against the Notice of Refusals. The appeals came before Judge of the First-tier Tribunal Heynes sitting at Manchester on 10th August 2016. Judge Heynes in a decision promulgated on 19th August 2016 concluded that the clearly expressed intention of the Entry Clearance Officer was that the first decisions i.e. those of 4th January 2016 had been withdrawn and replaced by decisions dated 11th February 2016. As there was no appeal against the decision dated 11th February 2016 the judge concluded he had no jurisdiction to determine the appeals and that there was no appeal extant before him in respect of the decisions of 11th February 2016.
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On 23rd August 2016 Grounds of Appeal were lodged to the Upper Tribunal. Permission to the Upper Tribunal was refused by Judge of the First-tier Tribunal Bennett. Judge Bennett noted:
“It is not necessary for me to consider the voluminous Grounds of Appeal which run to fifteen pages, because of the Upper Tribunal’s subsequent decision in Sala [2016] UKUT 411 which establishes that there is no statutory right of appeal against a decision of the Secretary of State not to grant a residence card to a person claiming to be an extended family member. Although Sala was concerned with residence cards and not with family permits it is not arguable that Sala is distinguishable because Sala turned on the question of whether an extended family member had an entitlement to a residence card which, on the wording on the Regulation, applied equally to family permits.”
Very extensive Grounds of Appeal were lodged by Mr F T S Senior on 20th October 2016 to the Upper Tribunal. On 14th November 2016 Upper Tribunal Judge Kopieczek granted permission to appeal. Judge Kopieczek’s grant of permission is of importance. He stated that whilst it appeared that there had been no appeals lodged against 11th February 2016 decisions it was not clear that there was no appeal outstanding for the Tribunal in relation to 4th January 2016 decisions and that the First-tier Tribunal Judge did not appear to have given due consideration to Rule 17(2) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. He noted that whilst the withdrawal of a Respondent’s decision must (save for good reason) result in the Tribunal treating the appeal as withdrawn, it was not apparent that the formalities required by Rule 17(2) were complied with by the Respondent.
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He further noted that although there was on the face of it good reason to consider that the decision in Sala applied in the circumstances of these appeals and that the Appellants therefore did not have a right of appeal to the First-tier Tribunal it was a matter that required further consideration in the context of these appeals.
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On 30th November 2016 the Secretary of State responded to the Grounds of Appeal under Rule 24. I quote directly from that Rule 24 response because ultimately that appears to me to encompass the whole nub of the issue before me: “’It will be submitted that any error that is alleged to have appeared in the making of the First-tier Tribunal Judge’s determination is irrelevant and immaterial due to the recent promulgation of Sala [2016] UKUT 411.”
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It is on that basis that the appeal comes before me to determine whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. The Appellants appear by their McKenzie friend Mr F T S Senior. Mr F T S Senior has produced an extensive skeleton argument specifically for this appeal. In addition he refers to the skeleton arguments that he raised before the First-tier Tribunal Judge and to the Grounds of Appeal. I have given due consideration to all these documents. The Respondent appears by her Home Office Presenting Officer Mr Harrison.
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As a preliminary issue I am referred to a written request by Mr F T S Senior that due to the ages of the Appellants this matter be anonymised. Mr Harrison on behalf of the Secretary of State does not raise objection. In such circumstances I make an anonymity direction.
The Issue
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I explained fully to Mr F T S Senior the issue in this matter was whether or nor there was a material error of law in the decision of the First-tier Tribunal Judge. I explained to him thoroughly that I was not rehearing this matter and I allowed him to make his submissions based very largely on his skeleton argument and his subsequent developed oral testimony thereafter.
The Law
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Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
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It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge’s factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge’s assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration Judge concludes that the story is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
Findings on Error of Law
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This appeal originated on the basis that the judge had erred in the manner in which he had addressed the position that came before him in the First-tier Tribunal...
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