Tribunal decisions

The decision

Upper Tribunal
Immigration and Asylum Chamber Appeal Number: EA/01631/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On: 28 November 2016
On: 30 November 2016

Before

UPPER TRIBUNAL JUDGE KAMARA

BETWEEN

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
And

MR MD SHOHEL RANA
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr D Clark, Senior Home Office Presenting Officer
For the Respondent: Miss D Qureshi, counsel instructed by Linga & Co Solicitors

DETERMINATION AND REASONS

1. This is an appeal against the decision, promulgated on 27 June 2016, of First-tier Tribunal Judge O'Flynn.
2. Permission to appeal was granted by Designated First-tier Tribunal Judge McCarthy on 25 October 2016.

Background
3. The respondent to this appeal sought a residence card as confirmation of a right to reside in the United Kingdom on the basis of being the unmarried partner of an EEA national.
4. In refusing the above-mentioned application, on 25 January 2016, the Secretary of State pointed to a number of discrepancies between the respondent's answers and those of his EEA national sponsor, when interviewed. It was concluded that these discrepancies, along with the limited documentary evidence "fatally and irreparably damaged the credibility of (the respondent's) claim to be in a genuine relationship?"
5. Following the hearing before Judge O'Flynn, the appeal was allowed; the judge accepting that the respondent was in a durable relationship with the sponsor.
6. The grounds of application simply argued that the judge erred in allowing the appeal of an extended family member outright rather than remitting the matter to the Secretary of State. There was no challenge to the favourable findings of the judge as to the relationship in question. Reliance was placed on Ihemedu (OFMs - meaning) Nigeria [2011] UKUT 00340 (IAC).
7. Permission to appeal was granted on the basis sought combined with the fundamental question raised by the decision in Sala (EFMs: Right of Appeal) [2016] UKUT 00411 (IAC).
The respondent did not lodge a Rule 24 response.
6. At the hearing before me, Mr Clark simply argued that the judge had no jurisdiction to consider the appeal in view of in Sala (EFMs: Right of Appeal) [2016] UKUT 00411 (IAC).
7. Miss Qureshi had no submissions to make on the jurisdiction point. She took the opportunity to highlight the unfairness to the respondent of having won his appeal but not being able to take advantage of this.
8. At the conclusion of the hearing, I announced that I had no jurisdiction to consider this appeal owing to Sala, where the following was decided; "There is no statutory right of appeal against the decision of the Secretary of State not to grant a Residence Card to a person claiming to be an Extended Family Member. "
9. Miss Qureshi alluded to the fact that there had always been a right of appeal in these circumstances. On this point, I have considered Virk & others [2013] EWCA Civ 652 at [23], as follows; "Statutory jurisdiction cannot be conferred by waiver or agreement; or by the failure of the parties or the tribunal to be alive to the point." I would add only that the Secretary of State did not challenge the judge's findings of fact and suggest that it is open to the respondent to provide the judge's decision to the Secretary of State in support of a further application for a residence card.
There is, therefore, no valid appeal before me.

Conclusions
I have no jurisdiction to consider this appeal.
No application for anonymity was made and I saw no reason to make such a direction.

Signed: Date: 29 November 2016

Upper Tribunal Judge Kamara