Tribunal decisions

The decision

St

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/00787/2015

THE IMMIGRATION ACTS

At North Shields
Decision and Reasons Promulgated
on 20th October 2016
on 28th November 2016

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL FARRELLY

Between
MR. MOHAMMAD RASHED AHMED
(NO ANONYMITY DIRECTION MADE)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

No application for anonymity was made and there is no apparent reason for anonymity.

Representation:
For the Appellant: MAC Solicitors.
For the Respondent: Mrs R.Petersen, Home Office Presenting Officer.

DECISION AND REASONS

Introduction

1. The appellant is a national of Bangladesh. He applied for a residence card under European Treaty provisions. This was on the basis he was an extended family member of his brother-in-law, an Italian citizen, hereinafter referred to as his sponsor.

2. His application was refused and he appealed. His appeal was heard by First-tier Tribunal Judge Doyle at North Shields on 21 April 2016. In a decision promulgated on 27 April 2016 his appeal was dismissed.

3. The judge found that the appellant entered the United Kingdom in October 2010 with entry clearance as a student valid until December 2012, subsequently extended to May 2015. In July 2015 he applied for a residence card on the basis he lived with and was dependent upon his sponsor.

4. His sponsor had lived with his wife, the appellant's sister, in Italy until November 2010 when they came to the United Kingdom. He is working part-time.

5. First-tier Tribunal Judge Doyle found that the appellant was not living as part of his sponsor's household; having concluded he lived in London whereas the sponsor lived in Newcastle. Furthermore, the judge did not consider him to be dependent upon his sponsor.

6. The appellant's application for leave to appeal to the Upper Tribunal was rejected on the grounds advanced. However, since the appeal the decision of Sala (EFM's: Right of Appeal: Albania [2016] UKUT 411(IAC) was promulgated. This decided that there was no right of appeal against the refusal to grant a residence card to a person claiming to be an extended family member. Consequently, permission to appeal was granted on the basis that it was arguable that First-tier Tribunal Judge Doyle did not have jurisdiction to hear the appeal.

7. The respondent has made a response under rule 24, submitting that the decision of First-tier Tribunal Judge Doyle materially erred in law and that the decision should be set aside and remade, dismissing the appeal for want of jurisdiction.

The Upper Tribunal

8. At hearing, the appellant's representative sought to argue that the decision of Sala (EFM's: Right of Appeal: Albania [2016] UKUT 411(IAC) did not apply to the appellant's appeal. His first point was that the decision did not have retrospective effect. The next point was that the appeal here was under regulation 26 (3) of the immigration EEA regulations 2006 (the 2006 regulations) rather than Reg 26(2A) which applied in Sala.

9. Mrs R.Petersen submitted that the decision of Sala (EFM's: Right of Appeal: Albania [2016] UKUT 411(IAC) was declaratory of the law and did not change it.

Consideration

10. The decision of Sala postdates the First-tier Tribunal. The decision does not change the law but is declaratory of what the law is. Consequently, as it does not change the law the argument that it is not retrospective is misconceived.

11. Sala is not concerned was the appeal rights of family members as defined in regulation 7. Rather, it concerns the appeal rights of extended family members as defined in regulation 8. The appellant is clearly not a family member of his sponsor as defined in regulation 7. Regulation 8 defines an extended family member as someone who satisfies regulation 8(2), (3) or (4). In Sala it was found by the First-tier Judge that the appellant was an extended family member is defined in regulation 8(5), namely as a partner. The claim in the present appeal is based on the appellant being a dependent relative and a member of the sponsor's household. Consequently regulation 8(2) is the relevant provision. On the facts however, First-tier Tribunal Judge Doyle found he was not a dependant or household member.

12. Sala considered the rights of appeal to extended family members within regulation 26. The Upper Tribunal compared regulation 26(2A) with regulation 26(3). The former was inserted by way of an amendment from 8 November 2012 and was concerned with a claim by a person to be in a durable relationship with an EEA national. Regulation 26(3) concerned the appeal rights of someone claiming to be a family member or relative of an EEA national to whom paragraph 26(2) did not apply. Reg 26(2) concerned someone claiming to be an EEA national.

13. Regulation 26(3) is as follows (my italics ):

(3) If a person to whom paragraph (2) does not apply claims to be a family member who has retained the right of residence or the family member or relative of an EEA national he may not appeal under these Regulations unless he produces-
(a)a passport; and
(b)either-
(i)an EEA family permit;
(ia)a qualifying EEA State residence card;
(ii) proof that he is the family member or relative of an EEA national; or
(iii) in the case of a person claiming to be a family member who has retained the right of residence, proof that he was a family member of the relevant person.

14. The Upper Tribunal at paragraph of Sala 35 stated:
The reference to a "relative" (which has existed since the Regulations were enacted) may to be a reference to a person who claims to be a "relative" of an EEA national, his spouse or civil partner and, for example, claims to be a dependent or member of the household of the EEA national and, as such, is an EFM by virtue of reg 8(2) (see also reg 8(3) and (4) for other 'relative' EFMs).
15. Regulation 2 defined an EEA decision as including a decision concerning the right to have a residence card (2(1)(b)). The Upper Tribunal considered the meaning of an EEA decision and in particular whether the term `entitlement' included a decision which entailed a discretionary element as in the case of extended family members. At paragraph 62 the Upper Tribunal stated:
? we see nothing in reg 26(3) to displace the natural and ordinary meaning of the definition of an EEA decision set out in reg 2(1) point (b) that a decision under reg 17(4) to refuse to issue a residence card to an EFM does not give rise to a right of appeal.
Conclusion
16. In light of the decision of Sala, notwithstanding the inclusion of `relative' in regulation 26(3) in relation to appeal rights, I am driven to conclude that this appellant has no right of appeal. This is because of the Upper Tribunal's analysis of an`EEA decision' in regulation 2(1)(b). I see nothing which distinguishes this case from the principle set out in Sala.Consequently, the First-tier Tribunal had no jurisdiction to hear the appeal and erred in law in doing so.
Decision

The decision of First-tier Tribunal Judge Doyle dismissing the appeal contains a material error of law and cannot stand. This is because there was no jurisdiction to hear the appeal. I set the decision aside and substitute a decision that there was no valid appeal before the First-tier Tribunal.

Deputy Upper Tribunal Judge Farrelly