United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: IA/25444/2015

 

 

THE IMMIGRATION ACTS

Heard at Field House	Decision & Reasons Promulgated
On 19 July 2017	On 29 November 2017

 

Before

 

UPPER TRIBUNAL JUDGE KOPIECZEK

 

 

Between

 

mr Stephen Amponsah

(Anonymity Direction Not Made)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

 

Representation :

For the Appellant: Mr M Al-Rashid, Counsel

For the Respondent: Mr I Jarvis, Senior Home Office Presenting Officer

 

 

DECISION AND REASONS

1.              The appellant is a citizen of Ghana, born in 1970. He made an application for a residence card as the spouse of an EEA citizen. The respondent refused the application in a decision dated 29 June 2015, pursuant to the Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations").

2.              The appellant appealed against that decision and his appeal came before First-tier Tribunal Judge Plumptre ("the FtJ") at a hearing on 9 December 2016, whereby she dismissed the appeal.

3.              In relation to the appellant's marriage, that was a marriage conducted by proxy in Ghana. The FtJ found that it was a customary marriage by "double proxy". She applied the decision of the Tribunal in Kareem (Proxy marriages - EU law) [2014] UKUT 24 (IAC).

4.              Amongst other things, that case decided that in an appeal against the refusal of a residence card on the basis of marriage, the starting point is to decide whether the marriage was contracted between the parties according to the national law of the EEA country of the qualified person's nationality.

5.              However, the Tribunal's decision was overturned on appeal in Awuku v Secretary of State for the Home Department [2017] EWCA Civ 178. It was concluded that the Tribunal erred in deciding that in the absence of evidence that German law recognises a Ghanaian marriage by proxy as valid, the marriage would not be recognised in the United Kingdom.

6.              In the appeal before me, the FtJ however also decided that she had no jurisdiction to determine whether the appellant was an extended family member under the EEA Regulations by reason of being in a 'durable relationship'. She came to that view on the basis of the Upper Tribunal's decision in Sala (EFMs: Right of Appeal) [2016] UKUT 411. That case decided that there is no statutory right of appeal against the decision of the Secretary of State not to grant a residence card to a person claiming to be an extended family member.

7.              The grounds of appeal against the FtJ's decision take issue with the FtJ's reliance on Kareem on the basis that the Court of Appeal was at that time considering the Upper Tribunal's decision.

8.              The grounds further take issue with the FtJ's decision that she had no jurisdiction to consider the point of a durable relationship. In addition, it is asserted that the FtJ was wrong to state that it was common ground between the parties that she had no jurisdiction in relation to that issue.

9.              In submissions before me, it was accepted that there had been no challenge to the FtJ's conclusion that the appellant had not established that the proxy marriage in Ghana was a valid proxy marriage by Ghanaian law, or that it was validly and properly registered in accordance with Ghanaian law. The submissions before me were made only in relation to the jurisdiction/ Sala point.

10.          Mr Al-Rashid sought to distinguish this appellant's case from that of Sala on the basis that the appellant in this case had applied for a residence card as a family member, under reg 17(1)(b), whereas Sala was a case under Reg 17(4) (extended family member). Thus, Sala was a case purely about a durable relationship, whereas the appeal before the FtJ concerned someone who claimed to be a family member, as a spouse.

11.          It was submitted that once the appellant had lodged an appeal before the First-tier Tribunal, "legitimate grounds" were open to him. Any restrictions on the right of appeal must, it was submitted, be interpreted narrowly.

12.          In addition, reliance was placed on the fact that the Secretary of State, in the decision, had considered the issue of durable relationship in the alternative. The appellant had been afforded a right of appeal and there was only one decision which was appealed.

13.          Mr Jarvis referred to the decision in Rashid Anwar v Secretary of State for the Home Department [2010] EWCA Civ 1275 in terms of the distinction between the constitutive and adjudicative jurisdiction of the Tribunal. It was further submitted that the fact that the Secretary of State had dealt with the issue of durable relationship was not relevant to whether the FtJ had jurisdiction to consider the matter. It was, it was submitted, illogical for an appellant to be able to gain a right of appeal by raising another matter which may have no substance at all. A person would therefore get a right of appeal in circumstances where others would not.

14.          Subsequent to the hearing before me, the Court of Appeal in Khan v Secretary of State for the Home Department [2017] EWCA Civ 1755 found that Sala was wrongly decided. In the circumstances, I considered it appropriate to allow the parties the opportunity to make further submissions on the issue, and issued directions to the parties on 10 November 2017 giving them 14 days to make submissions should they so wish, limited solely to the Sala point. I indicated that at the expiry of that period, whether or not further submissions have been filed and served, a decision on the appeal would be made without further reference to the parties.

15.          On 24 November written submissions were received on behalf of the appellant, but no submissions on behalf of the respondent.

16.          The appellant's submissions, to summarise, contend that in the light of Khan the appeal should be remitted to the First-tier Tribunal for a hearing to determine the issue of durable relationship, but also referring to the fact that Kareem has also been overruled by the Court of Appeal in Awuku.

Conclusions

17.          It was accepted on behalf of the respondent that the FtJ had erred in law in concluding that she was bound by the decision in Kareem, given the decision of the Court of Appeal in Awuku. Nevertheless, it was submitted that any error of law in that regard was not material.

18.          However, in the light of the decision in Khan it is now apparent that the FtJ did err in law in concluding that she was bound by the decision in Sala, although of course the FtJ entirely properly applied the law as it was thought to be at the time. That view we now know was erroneous. The decision must be set aside for that reason.

19.          The error of law in relation to the application of Kareem, bearing in mind the decision of the Court of Appeal in Awuku, is again an error which is entirely understandable given the state of the authorities at the time of the appeal before the FtJ. It is not however an error that would have required the decision to be set aside given the FtJ's findings in relation to the validity of the marriage in Ghanaian law. The contrary was not argued on behalf of the appellant before me (and see my [9] above).

20.          It is nevertheless the case that the issue of whether the appellant is in a durable relationship and is thus an extended family member is a matter that requires to be determined. In the circumstances, taking into account the Senior President's Practice Statement at paragraph 7.2, it is appropriate for the appeal to be remitted to the First-tier Tribunal for that matter to be decided.

21.          However, the FtJ has already, and without legal error, concluded that the appellant's marriage is not valid in Ghanaian law. That is a matter that does not require any further fact-finding and the FtJ's decision in that regard is to stand, along with her findings of fact in that respect.

Decision

22.          The decision of the First-tier Tribunal involved the making of an error on a point of law and its decision is therefore set aside. The appeal is remitted to the First-tier Tribunal for a hearing to determine the issue of whether the appellant is an extended family member within the meaning of the Immigration (European Economic Area) Regulations 2006, before a judge other than First-tier Tribunal Judge Plumptre.

 

 

Upper Tribunal Judge Kopieczek dated 28/11/17