EA/00280/2016

• Status of case: Unreported
• Hearing date: 14 Feb 2017
• Promulgation date: 8 Mar 2017
• Publication date: 28 Jan 2022
• Last updated on: 28 Jan 2022

The decision

IAC-AH-CO-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/00280/2016


THE IMMIGRATION ACTS


Heard at Newport
Decision & Reasons Promulgated
On 14th February 2017
Signed and sent to Promulgation
on 20th February 2017
On 8th March 2017



Before

Upper Tribunal Judge Grubb
Upper Tribunal Judge Chalkley


Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

SHADY ABDELMONEIM SEDDIK MOHAMED ABOUBAKR
(ANONYMITY DIRECTION not made)
Respondent


Representation:
For the Appellant: The appellant in person. No appearance on behalf of the appellant
For the Respondent: Mr S Kotas, a Home Office Presenting Officer


DECISION AND REASONS

1. In this appeal, the Secretary of State for the Home Department is the appellant. To avoid confusion, I shall refer to her as being, “the claimant”. The respondent is a citizen of Egypt who was born on 1st March,1987.

2. The appellant claims to be married under Islamic law to Judit Molna, a citizen of Hungary born on 12th August 1979 (“the sponsor”). They claimed to be in a durable relationship and the appellant made application to the claimant for a family residence permit under Regulations 8 and 17 of the Immigration (European Economic Area) Regulations 2006 (“the Regulations”).

3. On 10th December 2015, the claimant concluded that the respondent and sponsor did not meet the requirements of the Regulations, since there was insufficient evidence before her to demonstrate they were in a durable relationship.

4. The appellant appealed and his appeal was heard by First-tier Tribunal Judge Archer on 1st May, 2016. Judge Archer found that the respondent and sponsor did meet all the requirements of the Regulations and was satisfied that the sponsor was an EEA national exercising treaty rights in the United Kingdom. She purported to allow the respondent’s appeal.

5. The claimant sought to challenge that decision, asserting that the judge erred in law by allowing the appeal outright, rather than allowing it to the extent that it still remained for the clamant to consider how she should exercise her discretion under Regulation 17(4) of the Regulations.

6. The respondent and sponsor both appeared before us in person, but unrepresented. We explained to them the purpose of the hearing and introduced the parties. We sought to explain to the respondent that the judge had erred in law because, since the date of the hearing before the judge, the Upper Tribunal have concluded that the decision by the Secretary of State in the exercise of her discretion not to issue an extended family member with a residence card under Regulation 17(4), is not a decision which concerns, ... a person’s entitlement to be issued with ..., a residence card and is not, therefore, appealable to the First-tier Tribunal (Sala (EFMs: right of appeal) [2016] UKUT 00411 (IAC).

7. The respondent never had a right of appeal. The First-tier Tribunal had no jurisdiction to hear the appeal and erred in law in doing so. We set aside the decision of the First-tier Tribunal to allow the appeal and substitute a decision that there was no valid appeal before the First-tier Tribunal.


No anonymity direction is made.

Richard Chalkley
A Judge of the Upper Tribunal