FD (EEA discretion: basis of appeal) Algeria  UKAIT 00049
Date of hearing: 3 April 2007
Date Determination notified: 12 June 2007
|Secretary of State for the Home Department||RESPONDENT|
The Tribunal has jurisdiction to review the exercise of the Secretary of State's discretion under the EEA Regulations applying to "extended family members". In such cases the Tribunal is not, therefore, confined to considering whether the decision was a lawful one.
(d) that the appellant is an EEA national or a member of the family of an EEA national and the decision breaches the appellant's rights under the Community Treaties in respect of entry to or residence in the United Kingdom;
(e) that the decision is otherwise not in accordance with the law;
(f) that the person taking the decision should have exercised differently a discretion conferred by immigration rules;
(3) the Tribunal must allow the appeal in so far as it thinks that –
(a) a decision against which the appeal is brought or is treated as being brought was not in accordance with the law (including immigration rules), or
(b) a discretion exercised in making a decision against which the appeal is brought or is treated as being brought should have been exercised differently.
(5) In so far as subsection (3) does not apply, the Tribunal shall dismiss the appeal.
(6) Refusal to depart from or to authorise departure from immigration rules is not the exercise of a discretion for the purposes of subsection (3)(b)."
"The provisions of or made under the 2002 Act referred to in Schedule 1 shall have effect for the purposes of an appeal under these Regulations to the Asylum and Immigration Tribunal in accordance with that Schedule.
"The following provisions of, or made under, the 2002 Act have effect in relation to an appeal under these Regulations to the Asylum and Immigration Tribunal as if it were an appeal against an immigration decision under section 82(1) of that Act:
section 84(1), except paragraphs (a) and (f);
sections 85 to 87;
sections 103A to 103E;
section 105 and any regulations made under that section; and
section 106 and any rules made under that section."
C M G OCKELTON
Note 1 AP and FP (Citizens Directive Article 3(2); discretion; dependence) India  UKAIT 00048