Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/01874/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 5 December 2016
On 6 December 2016

Before:

UPPER TRIBUNAL JUDGE GILL

Between

Nuzhat Naz
(ANONYMITY ORDER NOT MADE)

Appellant

and

Secretary of State for the Home Department

Respondent

Representation:
For the Appellant: In person
For the Respondent: Mr. P Duffy, Senior Presenting Officer.

DECISION AND REASONS
1. Permission has been granted to appeal to the Upper Tribunal against a decision of Judge of the First-tier Tribunal Birk who, following a hearing on 18 April 2016, dismissed the appeal of the appellant, a national of Pakistan born on 14 April 1987, against a decision of the Secretary of State of 1 February 2016 under the Immigration (European Economic Area) Regulations 2006 (the "2006 EEA Regulations").
2. The applicant had made an application, most recently on 10 August 2015, for a residence card as the extended family member of her uncle, Mr Mohmmad Arif Goher (hereafter the "sponsor") who is a Belgian national exercising Treaty rights in the United Kingdom. She said that Mr Goher is the first cousin of both of her parents and that she was dependent upon him when she was in Pakistan as well as in the United Kingdom.
3. The Secretary of State did not accept that the applicant was an extended family member under regulation 8(5) of the 2006 EEA Regulations. She decided that the appellant had not produced sufficient evidence to show that she was related as claimed to the sponsor. She therefore refused the application under regulation 17(1)(b) of the 2006 EEA Regulations.
4. In addition, the Secretary of State also decided that the applicant had not provided evidence of her dependency on the sponsor at any time, either in Pakistan or in the United Kingdom. Accordingly, she also refused the application under regulation 8(5).
5. The appellant requested that her appeal to the First-tier Tribunal ("FtT") be decided 'on the papers'. The judge therefore proceeded to decide the appeal on the material before him.
6. At [9] of his decision, the judge said that he did not have any of the documentary evidence that the appellant referred to in her statement as to birth or death certificates and he therefore had nothing from which he could ascertain or determine the relationship between the appellant and the sponsor. On that basis, he said that the appeal must fail to establish any family relationship between the appellant and the sponsor.
7. In addition, the judge said that he had no documentary evidence or any evidence from the sponsor to confirm the appellant's contention that her sponsor used to send her money every 6 months. He therefore found that the appellant had failed to establish prior and/or present dependency and/or residence and so she did not meet the criteria set out in regulation 8.
8. On 4 November 2016, an Upper Tribunal Judge ("UTJ") granted permission to appeal to the Upper Tribunal.
9. It appears that the UTJ was unaware of the fact that, on 19 September 2016, the Upper Tribunal reported the decision in Sala (EFMs: Right of appeal) [2016] UKUT 00411 (IAC). This was a decision in an appeal heard before Mr C M G Ockelton, Vice President, and Upper Tribunal Judge Grubb. The Upper Tribunal held in Sala that 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.
The hearing
10. The appellant was unrepresented at the hearing. She asked for an interpreter in the Urdu language but also said that she would be able to proceed without an interpreter. I informed her that a request for an interpreter has to be made in advance of a hearing date as it is not possible for an interpreter to be provided immediately upon request. I informed her that, in view of the fact that it appeared that the ambit of the hearing was limited as I would explain shortly, I would assess whether she was able to understand the proceedings and participate effectively before making a decision as to whether an adjournment was necessary.
11. In addition, given that there was a prior issue of jurisdiction, it was my preliminary view, having considered the overriding interest, that any adjournment would not serve any useful purpose as the appellant was not legally represented and therefore she would be in no better position to deal with the jurisdiction issue even if the hearing was adjourned. However, if I had formed the view that she was unable to participate in the hearing due to language difficulties, I would of course have adjourned the hearing.
12. In the event, I found that I was able to explain the legal issues to the appellant in simple terms so that she understood the issues and was able to participate effectively. I was satisfied that the appellant understood everything I said and that she was able to participate in the hearing fully.
13. I explained to the appellant that what appears to have happened in this case is that it appears that she (the appellant) had submitted documents to the Secretary of State which she said were relevant to the issues raised in the decision letter and that she did not know until she received the judge's decision that the judge did not have the documents she had submitted to the Secretary of State. I informed the appellant that, in such circumstances, it is likely that a case would ordinarily be remitted to the First-tier Tribunal for another decision to be made on the appeal.
14. However, in this particular case, the respondent relies on Sala in which it was held that an extended family member does not have a right of appeal. I explained in simple terms the meaning of the term "extended family member" and "family member". I explained that the Upper Tribunal had held in Sala that an extended family member does not have a right of appeal.
15. The appellant asked why in that case we were having a hearing before the Upper Tribunal at all. I explained that it may be that the judge who granted permission was not aware of the decision in Sala or that the decision was Sala was reported after permission had been granted. Either way, I had to deal with the issue as to whether she had a right of appeal.
16. The appellant asked me to take into account the fact that she had made her application some time ago, i.e. before the decision in Sala. She said that she first applied for a residence card as an extended family member on 28 February 2015 and that that application was refused on 20 April 2015. She said that her case is a genuine one. She was dependent upon her sponsor when she was in Pakistan as well as after her arrival in the United Kingdom.
17. The appellant also said that she had human rights which the respondent had not considered. I informed her that it is not possible for her to rely upon human rights grounds in an appeal under the 2006 EEA Regulations.
18. The appellant then said that she had a lot of diseases and did not feel well. I asked whether she was trying to say that she was not feeling well at the hearing. She said "No, not that". She then went on to say that she has a son in Pakistan. She and her husband are separated. There is no one to look after her in Pakistan. She would therefore like me to grant her some right to remain in the United Kingdom whether that be on the basis of Article 8 or some other basis.
19. I informed the appellant that I will have to decide, in the first place, whether she had a right of appeal. In that regard, I will consider whether the relevant regulations were worded differently as at the date of her application or the respondent's decision.
20. I reserved my decision.
Assessment
21. I have considered carefully the appellant's submission that Sala should not be applied because she first applied for a residence card as an extended family member in February 2015. It appears that she has made more than one application, her first being the application on 28 February 2015. Of course, strictly speaking, what matters is the legal position as at 1 February 2016 because this is the date of the decision. The date of application is not relevant to the issue of jurisdiction because a right of appeal (if there is a right of appeal) arises against the decision made.
22. However, whether one considers the wording of the relevant regulations as at February 2015 or February 2016, the result is the same. The wording of the following regulations have remained the same or materially the same at all relevant times:
i) regulation 17(4) (which confers a discretion on the Secretary of State to issue a residence card to an extended family member);
ii) regulation 17(5) which makes it clear that the right of extended family members to admission and residence is a procedural right to have their applications determined following the extensive examination of their personal circumstances demanded by regulation 17(5) and an exercise of discretion in their favour;
iii) regulation 7(3) from which it is clear that, once a residence card has been issued to an extended family member, that person will be treated as a family member only while he/she continues to satisfy the conditions of regulation 8 which resulted in him/her being accepted as an extended family member; and
iv) regulation 26 which sets out the right of appeal and regulation 2(1) which defines an EEA decision.
23. Accordingly, in the absence of any reasoned legal basis for not following Sala, I can see no reason not to follow it.
24. I have therefore concluded that the appellant did not have a right of appeal against the decision of the respondent of 1 February 2016. Accordingly, the judge erred in law in deciding the appeal. It is self-evident that the error was material.
25. I therefore set aside the decision of the judge in its entirety. None of his findings shall stand.
26. I proceed to re-make the decision on the appeal. For the reasons given above, my decision is that there is no valid appeal against the decision of the respondent. I therefore dismiss the appeal for want of jurisdiction.
27. The appellant sought to rely upon Article 8. However, there are two difficulties. Firstly, the appellant did not have a right of appeal against the Secretary of State's decision of 1 February 2016. Accordingly, she is precluded from relying upon Article 8 for the simple reason that she has no right of appeal. Secondly, and in any event, the Court of Appeal held in TY (Sri Lanka) v SSHD [2015] EWCA Civ 1233 human rights grounds cannot be relied upon in an appeal under the 2006 EEA Regulations unless the Secretary of State had issued a one-stop notice pursuant to the Nationality, Immigration and Asylum Act 2002. There is nothing before me that indicates that the appellant was served with a one-stop notice.
28. The remaining points raised by the appellant (as to her health and that she has no one to look after her in Pakistan) cannot overcome the hurdle that she does not have a right of appeal.

Decision

The making of the decision of the First-tier Tribunal involved an error on a point of law such that it fell to be set aside. I have set aside it. None of its findings shall stand.

I have proceeded to re-make the decision on the appeal. The decision is that there is no valid appeal against the Secretary of State's decision of 1 February 2016 because there was no right of appeal against that decision.

Signed Date: 5 December 2016
Upper Tribunal Judge Gill