Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal: EA/01606/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 22 November 2016
On 23 November 2016

Before

UPPER TRIBUNAL JUDGE WARR

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

FARZAN DALI PATEL
(No anonymity direction made)
Respondent

Representation:
For the Appellant: Mr Whitwell, Home Office Presenting Officer
For the Respondent: Ms I Iteva, (Duncan Lewis Solicitors)

DETERMINATION AND REASONS
1. This is the appeal of the Secretary of State but I will refer to the original appellant, a citizen of India born on 24 February 1987, as the appellant herein. He applied for a Residence Card as confirmation of the right of residence as the extended family member of an EEA national. His partner is Ms [VB] a Lithuanian national whom the appellant said he had met in November 2013. They had resided together since March 2014 and their daughter was born on 22 May 2015.
2. The Secretary of State refused the appellant's application for a Residence Card on 24 October 2015, not being satisfied the couple were in a durable relationship.
3. The appellant appealed and his appeal came before a First-tier Judge on 11 March 2016.
4. The judge having had the benefit of hearing oral evidence from the couple "had no hesitation in accepting that they were honest and genuine witnesses." He found in paragraph 68 "that the overwhelming weight of the evidence all was to the effect that the appellant and his partner were in a durable and subsisting relationship." The appeal was allowed.
5. The Secretary of State applied for permission to appeal on the basis that the judge had erred in allowing the appeal outright in the light of Ihemedu (OFMS - meaning) Nigeria [2011] UKUT. The Secretary of State argued that the matter should have been left to the Secretary of State to exercise discretion under regulation 17(4).
6. Permission to appeal was granted by the First-tier Tribunal on 19 September 2016.
7. At the hearing reference was made to a recent decision of the Tribunal chaired by the Vice President - Sala (EFMs: Right of Appeal) [2016] UKUT 00411 (IAC) - in which the Tribunal had decided that there was no right of appeal against the decision to refuse a residence card as an extended family member.
8. Mr Whitwell argued that the judge had been in error in allowing the appeal outright and in the light of Sala there was no right of appeal against the respondent's decision. Among the appellant's options would be to make a fresh application.
9. Ms Iteva referred to her skeleton argument and submitted the First-tier Judge had been entitled to allow the appeal in the light of the extensive evidence before him and the credibility of the witnesses was undisputed. Permission to appeal should only be granted where there was a material error of law.
10. Mr Whitwell made it clear that he did not seek to go behind any concessions that had been made by the Home Office Presenting Officer at the hearing before the First-tier Judge.
11. At the conclusion of the submissions I reserved my decision. It does appear that the decision in Sala establishes that the Tribunal had no jurisdiction to entertain this purported appeal. I have carefully considered the points made in the skeleton argument but I am not persuaded that I should do other than follow and apply Sala. I understand the decision is not the subject of further appeal.
12. As Ms Iteva argues favourable findings were made in respect of the couple and the respondent had not sought to go behind these in the grounds of appeal. I note that neither the appellant nor his partner were subject to cross-examination before the First-tier Judge. There were no questions for a third witness called on behalf of the appellant either.
13. I appreciate the respondent's grounds of appeal have been overtaken by the decision in Sala but unfortunately notwithstanding the points made by Ms Iteva I cannot do other than find that the Tribunal has no jurisdiction in this matter. No doubt the parties will arrange for a fresh application to the Home Office and it does appear that what they said before the First-tier Tribunal was not essentially disputed and it is to be hoped that they will not have to wait long for the outcome they want.

Decision
The First-tier Judge had no jurisdiction to allow the appeal in this case.
Accordingly I re-make the decision:
Appeal dismissed for want of jurisdiction.

Anonymity Direction.
The First-tier Judge made no Anonymity Order and I make none.

Fee Award
The judge made a fee award but it appears that he had no jurisdiction to make one.

Signed
G Warr, Judge of the Upper Tribunal

22 November 2016