EA/02002/2015 & EA/02000/2015

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The decision


IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: EA/02002/2015
EA/02000/2015

THE IMMIGRATION ACTS


Heard at First-tier Tribunal
Decision & Reasons Promulgated
On 30 January 2017
On 7 February 2017




Before

DEPUTY UPPER TRIBUNAL JUDGE HILL QC

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Mr Raja Farhan Aurangzeb
Mrs Shahzadi Romana
(anonymity direction NOT MADE)
Respondents


Representation:

For the Appellant: Mr S Whitwell, Home Office Presenting Officer
For the Respondents: No appearance


DECISION AND REASONS

1. This is an appeal brought by the Secretary of State from the decision of First-tier Judge Gribble which was promulgated on 15 June 2016. The appeal concerned the refusal by the Secretary of State to issue residence cards to the appellants on the basis that they were extended family members. That appeal was allowed by the First-tier Tribunal Judge and the Secretary of State duly appealed, raising a number of matters which were said to constitute material errors of law.

2. That was overtaken because by the grant of permission to appeal on 7 October 2016, by which time a decision of the Upper Tribunal, Vice President Ockelton and Upper Tribunal Judge Grubb, was in the public domain, namely Sala (EFMs: Right of Appeal) [2016] UKUT 00411. For present purposes, I need only set out the first two paragraphs:

"1. This appeal raises the issue of whether a person who is refused a residence card as an 'extended family member' under the Immigration (EEA) Regulations 2006 has a right of appeal to the First-tier Tribunal under Regulation 26 of the EEA Regulations 2006.

2. For the reasons we give below, we have reached the conclusion that no right of appeal exists."

3. Those acting for the respondents in this matter wrote to the Upper Tribunal on 25 January of this year, indicating that in the light of the decision in Sala, they wished to withdraw their appeal. However, it was not their appeal to withdraw but one brought by the Secretary of State, so a Judge of the Upper Tribunal directed that their attendance be excused today and indicated that the matter would be dealt with in their absence.

4. In the circumstances because as a matter of law no appeal existed from the Secretary of State's discretion to the First-tier Tribunal it follows that I must allow the Secretary of State's appeal to the Upper Tribunal and set aside the decision of the First-tier Tribunal as it had no jurisdiction to hear the appeal and it erred in law in doing so. In remaking the decision, I substitute a declaration that there was no valid appeal to the First-tier Tribunal.

Notice of Decision

The appeal is allowed and the decision of the First-tier Tribunal set aside, and substituted with a declaration that is no valid appeal from the Secretary of State's exercise discretion to the First-tier Tribunal.

No anonymity direction is made.


Signed Mark Hill Date 6 February 2017

Deputy Upper Tribunal Judge Hill QC