Tribunal decisions

The decision

IAC-fH-WYL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/02264/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 15 November 2016
On 18 November 2016

Before

LORD BANNATYNE
(SITTING AS A JUDGE OF THE UPPER TRIBUNAL)
UPPER TRIBUNAL JUDGE PITT

Between

QASIM SHAFIQUE
(anonymity direction not made)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr Bandegani, Counsel
For the Respondent: Mr Melvin, Home Office Presenting Officer

DECISION AND REASONS
Background
1. The appellant is a national of Pakistan whose date of birth is 2 March 1990. On 9 February 2016 the respondent refused the appellant's application for a residence card.
2. In brief, the decision of the respondent, so far as relevant to the present proceedings, was this: it was held that the appellant had not established that he was an "extended family member" under the Immigration (EEA) Regulations 2006 in that it was not held as established that the appellant and sponsor were in a durable relationship.
3. The appellant appealed the above decision to the First-tier Tribunal. The appeal was refused.
4. The appellant sought permission to appeal the decision of the First-tier Tribunal to the Upper Tribunal and permission was granted on 18 October 2016.
The Issue
5. In the Rule 24 response the respondent argued that the appellant had no right of appeal to the First-tier Tribunal. In support of this position the respondent directed our attention to the decision in Sala (EFMs: right of appeal: Albania) [2016] UKUT 411 in which it was held 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." (see: the headnote).
6. The determination in Sala was not before the First-tier Tribunal.
7. Mr Bandegani having sought an opportunity to consider (1) the terms of the determination in Sala and (2) its practical effect with respect to the appellant advised that he did not intend to advance any substantive argument in reply to the respondent's position based on Sala. It was therefore his position that he did not oppose the substantive argument put forward in the Rule 24 note in terms of Sala.
Error of Law
8. As above set out it was conceded on behalf of the appellant that there was in light of the decision in Sala a material error of law in the determination of the First-tier Tribunal in that it had no jurisdiction to hear the appeal from the respondent's decision.
Decision
9. We accordingly for the above reasons hold that the decision by the First-tier Tribunal was void for want of jurisdiction. We accordingly set aside the decision of the First-tier Tribunal.
10. With respect to the appellant's grounds of appeal, given the way that matters developed before us with respect to the Sala issue these were not argued as they were no longer relevant. In these circumstances we refuse the appellant's appeal.
Further Matters
11. Mr Bandegani addressed us on one further issue: he submitted that the findings of fact of the First-tier Tribunal should not be carried over by the respondent to any future consideration of applications made by the appellant. It was his position that in that the First-tier Tribunal's determination was void, the findings of fact were never made. We indicated to Mr Melvin that we believed that there was substantial merit in this submission. He conceded, on behalf of the respondent, that it would not be appropriate for any findings of fact made by the First-tier Tribunal to be had regard to by the respondent when considering any future applications.
12. We make no anonymity direction.

Signed Date

Lord Bannatyne
Sitting as a Judge of the Upper Tribunal