RH v The Secretary of State for the Home Department

Where an appeal concerns the discretionary issue of a residence card under regulation 17(4), the Tribunal must decide whether the discretion should have been exercised differently. It errs in law if it confines itself to whether the Secretary of State’s exercise of discretion was lawful.

The discretion must take account of whether refusal would hinder or frustrate the EEA national’s continuing exercise of free-movement rights. The duty to facilitate the residence of a durable partner cannot be exercised as positive discouragement. Following an error of law, remittal is exceptional under the applicable Practice Statement; the Upper Tribunal will ordinarily re-make the decision.

The appellant, a Jamaican national, appealed against the refusal of a residence card under the Immigration (European Economic Area) Regulations 2006. The First-tier Tribunal found that he had been in a durable relationship with a French EEA national since December 2007, but dismissed his appeal. It treated the Secretary of State’s refusal under regulation 17(4) as being in accordance with the Regulations and also rejected his Article 8 claim.

The appellant contended that the First-tier Tribunal should itself have exercised the regulation 17(4) discretion differently. After finding a material error of law, the Upper Tribunal also determined whether the appeal should be remitted and whether the discretion should be exercised in the appellant’s favour.

1. Appeal allowed. The First-tier Tribunal materially erred in law. Once an appellant challenges a discretionary immigration decision, the Tribunal must determine whether the discretion should have been exercised differently; it is insufficient to ask only whether the Secretary of State acted lawfully. The error was capable of affecting the result, so the decision was set aside.

2. The Upper Tribunal refused to remit. Under section 12 of the Tribunals, Courts and Enforcement Act 2007, it could either remit or re-make the decision, but paragraph 7.2 of the applicable Practice Statement made remittal exceptional. The case involved neither a deprivation of a fair hearing nor highly compelling reasons for remittal. Determining the residence-card appeal separately would clarify the appellant’s EEA rights for the pending deportation appeal.

3. The Tribunal re-made the decision under regulation 17(4) of the Immigration (European Economic Area) Regulations 2006. The appellant was accepted to be the durable partner of an EEA national who was exercising Treaty rights in the United Kingdom. A proper exercise of the discretion had to consider whether refusal would hinder or frustrate her effective exercise of free-movement rights. It could not treat the duty to facilitate residence as permitting positive discouragement.

4. On the evidence, removal to Jamaica would force the EEA partner to choose between remaining in the United Kingdom without her partner and her child’s father, or moving with her child to a country where she did not wish to live. A return to France was not an adequate answer, since it depended on French domestic law and the appellant could not invoke EEA free-movement rights there through a French partner. His offending and poor immigration history did not outweigh those considerations; nor did the evidence establish the stringent public-policy grounds required for deportation under the Regulations.

5. The Tribunal exercised the discretion in the appellant’s favour and allowed the residence-card appeal. In consequence, it also allowed the Article 8 claim, as there was no public interest in expulsion once the appellant had an EEA right to reside.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the appeal, set aside the First-tier Tribunal’s decision for material legal error, refused remittal, and re-made the decision by allowing the residence-card appeal.
• First-tier Tribunal: Immigration Judge P J Scott dismissed the appeal in a determination notified on 17 May 2010, despite finding that the appellant was in a durable relationship with an EEA national.