Similarly, in the Court of Appeal in FK (Kenya) v SSHD [2010] EWCA Civ 1302 , Lord Justice Sullivan observed,
"Question (iii): family life. Before dealing with this question I would observe that it is very doubtful whether it was appropriate for the Article 8 issues raised by the appellant to have been resolved at this stage when there had been no removal decision. If and when a removal decision is made the appellant will be able to appeal against that decision and as part of that appeal he will be able to include Article 8 grounds in his appeal. It will of course be for the Secretary of State to decide whether to deport the appellant as a person who has committed criminal offences or whether he should be removed under the Immigration Rules. It will be for the Tribunal at the stage of any appeal against such a decision to weigh the relevant factors as they exist at that time. It seems to me therefore that it was at best premature for the Tribunal to be asked to consider the Article 8 issue in this appeal."
As at the date of the hearing before the First-tier Tribunal the claimant was not compelled to leave the UK and thus the Convention should not have been a consideration. The application for a residence card is in effect a request to recognise an existing right. The decision does not in fact change the claimant's status at all. Article 8 does not arise in these circumstances.
It follows that Judge Afako was in error of law in considering and allowing the appeal on Article 8 ECHR.
It further follows from the above that the claimant's appeal could never have succeeded and should have been dismissed.
In passing I note that §1 of the decision is in error in stating that there is no appeal under section 82 of the Immigration and Asylum Act 2002, as no immigration decision has been made. However, the regulations apply section 82 as if the decision were an immigration decision.
Conclusions & Decision:
For the reasons set out above, I find that the making of the decision of the First-tier Tribunal did involve the making of an error on a point of law such that the decision should be set aside and remade by dismissing the appeal.
I set aside the decision.
I re-make the decision in the appeal by dismissing it.
Signed
Deputy Upper Tribunal Judge Pickup
Dated
Anonymity
I have considered whether any parties require the protection of any anonymity direction. No submissions were made on the issue. The First-tier Tribunal did not make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.
Given the circumstances, I make no anonymity order.
Fee Award Note: this is not part of the determination.
I make no fee award.
Reasons: The appeal of the claimant has been dismissed and thus there can be no fee award.
Signed
Deputy Upper Tribunal Judge Pickup
Dated