Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/02230/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 14 December 2016
On 13 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HANBURY

Between

prasad darshana gedara
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Slatter of Counsel
For the Respondent: Ms A Ahmad, Home Office Presenting Officer

DECISION AND REASONS

Introduction

1. This is an appeal by the respondent against the decision of the First-tier Tribunal. Judge of the First-tier Tribunal Lloyd (the Immigration Judge) decided following a hearing at Newport on 1 August 2016 to allow the appellant’s appeal against the decision of the respondent to refuse an application under the EEA Regulations 2006.

2. The respondent appeals the decision of the First-tier Tribunal by a notice of appeal dated 17 August 2016 in which she makes three points. However, following the grounds of appeal being lodged the decision of this Tribunal in the case of Sala [2016] UKUT 00411 was promulgated by Mr C M G Ockelton, a Vice President of this Tribunal. In that decision the Vice President makes a number of points relevant to the present grounds of appeal. Most pertinent amongst the observations and findings of law reached by the Vice President was the finding that a decision under Regulation 17(4) of the 2006 Regulations in relation to the issue or non-issue of a residence card to an extended family member (EFM) did not give rise to a right of appeal (see paragraph 62 of the decision in Sala).

3. The respondent’s application for permission to appeal came before Judge of the First-tier Tribunal Froom on 3 November 2016. Having considered the grounds Judge Froom found that they were arguable. He also indicated that following the case of Sala it was clear there was no right of appeal against a decision to refuse a residence card in an EFM case.

The hearing

4. At the hearing I heard oral submissions by both representatives. The hearing lasted approximately one hour. At the conclusion of the hearing I indicated that I would attempt to give a decision today which I am now giving.

5. Ms Ahmad took me through a number of the 2006 Regulations including Regulation 8(2)(a) which provides for an extended family member being a person who satisfies the condition in that subparagraph. Such a person who is a relative of an EEA national, his spouse or civil partner and the person concerned is residing in a country other than the United Kingdom and is dependent upon the EEA national will acquire rights as an EFM. It was pointed out by Ms Ahmad that there were no adequate reasons for the Immigration Judge to find that there had been prior dependency before 2009 when the appellant came to the United Kingdom. Prior dependency would include what happened before the appellant entered the United Kingdom. Ms Ahmad dealt with the jurisdiction point and pointed out that at paragraph 23 of Virk [2013] EWCA Civ 652 the Court of Appeal had considered the nature of a challenge on jurisdictional grounds. The court had concluded that once a decision was taken without jurisdiction, although it may in due course become irreversible, the position had not been reached in that case. It was in the judgment of the court open to either the FtT or the UT to take the point about jurisdiction notwithstanding the failure of the Secretary of State to raise the point. In this case that observation is pertinent because the respondent did not raise the specific jurisdiction point in her grounds of appeal.

6. Ms Ahmad took me to a number of passages in Sala most notably paragraph 62 where the Vice President states that there was nothing in Regulation 26(3) to displace the natural and ordinary meaning of the definition of an EEA decision which is set out in Regulation 2(1)(b) of the EEA Regulations. Therefore, there was, in the Vice President’s view, no right of appeal from the decision to refuse a residence card to an EFM. At paragraph 75 the Vice President makes that point explicitly. At paragraph 83 I was also taken to a further passage which states that in an appeal by an EFM relying on a durable relationship against the decision to issue a residence card the prohibition on any appeal rights contained in the Regulations subsists. In Ms Ahmad’s view Sala applied to all extended family members. She drew my attention to a Rule 24 response that had been filed and said that it was wrong for the appellant to say that this was not a case to which the relevant Regulations applied or that the restriction on the appeal rights set out by the Vice President in the summer applied. In summary Ms Ahmad pointed out that the notice of appeal following Sala must succeed. She also pointed out that there was a failure to give adequate reasons for filing a pre-2009 dependency. She accepted that grounds 2 and 3 essentially expanded on those grounds.

7. I also heard from Mr Slatter who stated that this case was distinguished from Sala because the Secretary of State in the Sala case had actually exercised her discretion. That was not the case here. I was taken to the refusal letter which confusingly contains three paragraph 12s on the same two pages. Nevertheless, we were able to ascertain that the paragraph 12 that Mr Slatter wished to refer to was the paragraph 12 that appears on page 3 of the file. There was a discretion which subsisted with the Secretary of State and the Secretary of State who had not considered Regulation 17(4) had not exercised that discretion. Therefore there was no prohibition on the right to appeal. I was also taken to other passages in the decision which tend to indicate Mr Slatter submitted that the Immigration Judge had exercised his discretion.

8. Ms Ahmad by way of reply re-submitted that Sala does apply. She did not understand how the appellant was able to distinguish that case. She also referred to paragraph 75 of Sala which seems to make the matter clear. She relies also on a case called Rahman but was unable to furnish a copy.

Conclusions

9. As I have indicated to the parties it appears to me that the question of jurisdiction is rightly important and must be decided, effectively, as a preliminary issue in this appeal. Obviously, if the FtT lacked jurisdiction to hear the appeal, that is the end of the matter. If, on the other hand they had jurisdiction it may be necessary to go on to consider the other grounds.

10. Having carefully considered the case of Sala I have reached the clear conclusion that the case of Sala does prohibit an appeal in the exercise of a discretion in relation to an application by an EFM under Regulation 17 of the EEA Regulations 2006. It is clear from the decision of the Vice President in that case that there is no right of appeal.

11. Accordingly, I am going to allow the respondent’s appeal.

Decision

I find a material error of law in the decision of the First-tier Tribunal. That decision is set aside. I substitute the decision of the Upper Tribunal which is to dismiss the appellant’s appeal against the decision of the respondent to refuse to issue a residence card in this case.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Hanbury

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal and therefore there can be no fee award.

Signed Date

Deputy Upper Tribunal Judge Hanbury