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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-002973
	First-tier Tribunal No: EA/08154/2022

 

THE IMMIGRATION ACTS

 

Decision & Reasons Issued:

On 11 February 2025

 

Before

 

UPPER TRIBUNAL JUDGE REEDS

 

Between

 

BERNICE BERCHIE

(NO ANONYMITY ORDER MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

Representation:

For the Appellant: Ms Chaudhry on behalf of the appellant

For the Respondent : Ms Z. Young, Senior Presenting Officer

 

Heard at (IAC) on 22 January 2025 (amended)

 

DECISION MADE PURSUANT TO RULE 40 OF THE TRIBUNAL PROCEDURE ( UPPER TRIBUNAL) RULES 2008

 

1.              T he appellant appeals with permission against the decision of the First-tier Tribunal Judge O'Hanlon (hereinafter referred to as the "FtTJ") who dismissed the appellant's appeal against the decision of the Entry Clearance Officer ("ECO") to refuse a family permit under EUSS in a decision promulgated on the 24 July 2023. It is right to add that on the same date the FtTJ heard the appeal of her son and child of the sponsor who had also applied for Family Permit and the FtTJ had allowed his appeal.

2.              Permission to appeal that decision was sought and permission was refused by a FtTJ and then on renewal to the Upper Tribunal the application was not admitted as being out of time.

 

3.              In a decision made on the 19 August, Upper Tribunal Rastogi set aside that decision under Rule 43(1) and (2)(d) of The Tribunal Procedure (Upper Tribunal) Rules 2008 having found that in all the circumstances, she would extend the time for the appeal to be lodged. UTJ Rastogi granted permission stating:

 

"I grant permission to appeal on the grounds pleaded at paragraph 18 that it is arguable the judge made a material misdirection in law when dismissing the appeal. The judge found the marriage was not one of convenience so was "subsisting in the legal sense" but proceeded to find that there was "no ongoing spousal relationship" so the first appellant could not "properly be considered to be a spouse of her sponsor for the purposes of Appendix EU (Family Permit)" [49]. It is arguable this was the wrong test to apply as there is arguably no such requirement within Appendix EU (Family Permit)".

 

4.              The FtTJ did not make an anonymity order, and no grounds were submitted during the hearing for such an order to be made.

 

5.              The background is set out in the electronic file. The appellant is a national of Ghana and the wife of an Italian national who is residing in the UK and who has leave under the EU settlement Scheme. The appellant and her son made applications for a Family Permit in March 2020, the Home Office lost the applications so new applications were submitted in September 2020. The appellant's son's application was refused in October 2020 however the appellant's application remained pending until June 2022 when it was refused. The appellant's son applied again in March 2021 and received a refusal in September 2021. The appeals were linked together and heard on 24 July 2023 , the appellant' appeal was dismissed however her son's appeal was allowed.

 

6.              The issue raised in the decision related to whether this was a "marriage of convenience". At paragraph 17 (d) of his decision, the FtTJ confirms that this was issue to be determined, and whether the appellant and sponsor entered a "marriage of convenience". The Judge made a finding at Paragraph 45 that the appellant and sponsor did not enter a marriage of convenience and accepted that the marriage was subsisting in the legal sense at paragraph 49. The issue raised in the grounds and subsequent skeleton argument was that the appellant and sponsor are still legally married as accepted by the FtTJ at paragraph 49 of the decision. The FtTJ had also accepted that it was not a marriage of convenience and therefore the appellant satisfied the definition of a spouse as set out in Annex l of Appendix EU.

 

7.              At the hearing of the appeal, Ms Young on behalf of the respondent relied upon her detailed skeleton argument in which she conceded that the decision of the FtTJ involved the making of a material error of law as set out in the appellant's grounds and as summarised by the grant of permission. It was accepted that in light of the finding made at paragraph 45, the requirements of Appendix EU (Family Permit) were met, and the appeal should have been allowed on that basis and that the FtTJ erred in law by looking at whether the marriage was subsisting which was not required by Appendix EU and by reference to the definitions set out in Annex 1. Ms Young invited the Upper Tribunal to set aside the decisions and as the findings at paragraph 45 were not challenged by the respondent, the appeal falls to be allowed. She submitted that the appeal should be remade by allowing it.

 

8.              The parties are in agreement that the decision discloses the making of an error of law and that in light of the factual assessment made by the FtTJ that this was not a marriage of convenience the appellant met the requirements of Appendix EU (Family Permit). Accordingly I am satisfied that it in all circumstances it is appropriate to set aside the decision and allow the appeal as the appellant met the requirements.

9.              Rule 40 of the Tribunal Procedure (Upper Tribunal) rules 2008 allows the Upper Tribunal to give a decision orally at a hearing. Rule 40 (3) states that the Upper Tribunal must provide written reasons with a decision notice to each party as soon as reasonably practicable after making a decision which finally disposes of all issues in the proceedings. Rule 40 (3) provides exceptions to the rule if the decision is made with the consent of the parties, or the parties have consented to the Upper Tribunal not giving written reasons. In this case the parties consented to a decision without reasons pursuant to Rule 40(3) of the Tribunal Procedure (Upper Tribunal) Rules 2008. I am satisfied that the parties have given such consent at the hearing.

Decision

10.           The decision of the First.-tier Tribunal involved the making of an error on a point of law; the decision is set aside; the appeal is allowed.

 

Upper Tribunal Judge Reeds

Upper Tribunal Judge Reeds

 

22 January 2025

(amended on 10 February 2025)