Upper Tribunal (Immigration and asylum chamber), 2019-01-31, EA/06125/2017
| Jurisdiction | UK Non-devolved |
| Date | 31 January 2019 |
| Published date | 22 February 2019 |
| Hearing Date | 21 December 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | EA/06125/2017 |
Appeal Number: EA/06125/2017
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/06125/2017
THE IMMIGRATION ACTS
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Heard at Manchester CJC |
Decision & Reasons Promulgated |
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On 21st December 2018 |
On 31st January 2019 |
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Before
UPPER TRIBUNAL JUDGE COKER
Between
SE
Appellant
And
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr M Karnik, instructed by R & A solicitors
For the Respondent: Mr A Tan, Senior Home Office Presenting Officer
DETERMINATION AND REASONS
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the appellant in this determination identified as SE. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings
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SE, a Nigerian citizen, appealed a decision of the SSHD refusing, for reasons set out in a decision dated 14th June 2017, to issue him with an EEA family permit as the adopted child of OE, a Spanish national and his wife BE, a British Citizen. It is accepted by the respondent that OE is exercising Treaty Rights and has a permanent right of residence in the UK; that SE was adopted in accordance with Nigerian law on 15th September 2015; that Nugent Adoption approved SE’s adoptive parents as suitable for intercountry adoption for him and the Department of Education confirmed that the parents had been assessed and approved as eligible and suitable to be adoptive parents in accordance with Part 4 Adoption Agencies Regulations 2005.
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The family permit was refused because an adoption under Nigerian law is not recognised under the Adoption (Recognition of Overseas Adoptions (Order) 2013 and so the appellant was not a family member for EEA purposes.
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The appeal was dismissed by First-tier Tribunal Judge Mark Davies for reasons set out in a decision promulgated on 4th April 2018 which, in summary, found that because the adoption of SE in Nigeria was not recognised as meeting the requirements of the Adoption (Recognition of Overseas Adoptions) Order 2013, he could not meet the requirements of regulation 7 Immigration (European Economic Area) Regulations 2016. Although pleaded – albeit badly - the First-tier Tribunal judge refused to hear argument that the decision to refuse a permit breached Article 8, stating that Article 8 was not engaged.
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Permission to appeal was sought on the following grounds:
“The Immigration Judge erred in law by failing to consider Article 8 during the hearing.
The Immigration Judge did not consider the fact that the appellant in this case had completed fully the adoption process both in Nigeria and here in the United Kingdom and as such qualifies to be considered under Article 8 as well as under the regulations.”
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Permission to appeal was granted by UTJ Kebede on the grounds that it was arguable the judge had failed to consider Article 8 which had been pleaded in the grounds of appeal to the First-tier Tribunal and was considered by the ECM. She did not limit the grounds of challenge.
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Before me, Mr Karnik sought to expand the grounds of appeal to include a challenge to the refusal under the EEA regulations, in so far as permission may not have been granted, and for an extension of time for the ground to be argued: SM (Algeria) v ECO [2018] UKSC 9 had not been brought to the attention of the First-tier Tribunal judge; it is not acte clair that a child in the appellant’s position is not to be regarded as a direct descendant of his adoptive parents and thus it was wrong for the First-tier Tribunal to reach the finding that the child was not a direct descendant for the purposes of the EEA Regulations.
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Mr Tan opposed the amendment/expansion: first any such application was well out of time and secondly the appellant had had ample time in which to formulate the grounds more precisely. He however confirmed that if I were to grant the amendment/expansion then he did not require an adjournment to enable him to make submissions.
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I allowed the amendment/expansion of the grounds. SM should have been brought to the attention of the First-tier Tribunal judge; although UTJ Kebede did not specifically grant permission on the Regulations decision, it was pleaded (albeit sparsely) in the application for permission and she did not limit the grounds.
Error of Law
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The respondent, at the date of the appeal, did not have copies of the documents that had been submitted with the application. A copy of the covering letter of application for the residence permit was not before the First-tier Tribunal Judge (although a copy was provided to me). I did not take that letter into account in deciding whether there was a material error of law.
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The grounds of appeal to the First-tier Tribunal were:
“The decision is not in accordance with the Immigration Rules. The Rules do not exclude Nigeria as a country where adoption should not be accepted. The Entry Clearance Officer has failed to apply the Immigration Rules appropriately on this occasion especially when the previous refusal is considered alongside.”
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I had a copy of the record of proceedings made by the First-tier Tribunal judge, which is stated in bold in capital letters to have been typed verbatim onto a laptop computer in the hearing room. I read relevant extracts from the record to both parties who did not object or disagree with the contents (I should note that neither Mr Karnik nor Mr Tan appeared below, but the notes accorded with whatever record they each had).
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According to the Record, the First-tier Tribunal judge:
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Informed the appellant’s representative that he cannot argue an Article 8 appeal under EEA Regulations;
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That he, the judge, had ‘totally failed’ to appreciate the appellant’s case;
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That the appellant’s representative ‘totally fails’ to appreciate that he cannot argue Article 8;
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The respondent in submissions relied upon the Entry Clearance Officer’s decision and the Entry Clearance Manager’s decision, that as an EEA decision the Immigration Rules do not apply;
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The appellant’s representative relied upon his handwritten skeleton argument, prepared on the day of the hearing which said, inter alia, the sponsors had complied with the advice of adoption agencies, the ECO appeared to have considered and been satisfied that the sponsor/appellant met paragraph 316A Immigration Rules; the appellant relies upon paragraph 309B of the Rules and s83 Adoption and Children Act 2002 and thus regulation 7 is engaged.
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The First-tier Tribunal judge did not permit the appellant’s representative to make submissions regarding Article 8 even though (albeit in badly formulated grounds of appeal) the Immigration Rules were raised as an issue and, as per Sales LJ in Amirteymour [2017] EWCA Civ 3531 [33] “the Immigration Rules have always covered many if not most cases in which a right to enter or remain could be established under Article 8… and a common way in which a claim based on Article 8 arises is as an adjunct to a claim based on the Immigration Rules themselves.” Upon receipt of the grounds, the ECM considered and reviewed the decision of the ECO under Article 8. The First-tier Tribunal judge gave no reasons for refusing to hear the Article 8 appeal.
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It was not argued that the First-tier Tribunal judge had erred in concluding that adoptions completed under Nigerian law were recognised. As First-tier Tribunal Judge Davies said, the appellant’s ‘adoptive’ parents appear to have been misinformed that his Nigerian adoption order was recognised under Adoption (Recognition of Overseas Adoptions) (Order) 2013.
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It was accepted that the appellant had not made a paid application for entry clearance to be issued in accordance with the Immigration Rules. The decision the subject of appeal states
“You have applied for an EEA family permit to accompany [OE] to the United Kingdom as his adoptive child. I have considered your application under regulation 7 of the Immigration (European Economic Area) Regulations 2016.
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You are entitled to appeal against this decision under regulation 36 of the Immigration (European Economic Area) regulations 2016 …
The appeal must be brought on the ground t hath the decision breaches your rights under the EU Treaties in relation to entry to, or residence in, the United Kingdom …”
Ground 1- was there a human rights appeal that was not considered?
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Mr Tan submitted that Amirteymour was a complete answer: in an appeal under the EEA Regulations it was not possible to introduce a...
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