Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/02586/2015

THE IMMIGRATION ACTS

Heard at Birmingham
Decision & Reasons Promulgated
On 25 November 2016
On 02 December 2016

Before

UPPER TRIBUNAL JUDGE KOPIECZEK

Between

KENNETH NEHIKHARE OSADOLOR
(ANONYMITY DIRECTION not MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr A. Akindele, Solicitor
For the Respondent: Mr D. Mills, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Nigeria, born on 19 November 1980. On 27 April 2015 he made an application for a residence card as confirmation of a right of residence as the extended family member of an EEA national, namely his sister, a citizen of Germany. That application was refused in a decision dated 29 October 2015.
2. It seems that there had been an earlier application, and refusal, of the same kind, that earlier decision having been dated 31 March 2015.
3. The appellant's appeal against the later decision came before First-tier Tribunal Judge Duff ("the FtJ") on 21 January 2016. He dismissed the appeal under the Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations"). Permission to appeal having been granted in relation to that decision, the appeal came before me.
4. The FtJ found that the appellant had not established that he was dependent on the sponsor or a member of her household before he came to the UK and thus did not meet the requirements of regulation 8(2) of the EEA Regulations.
5. At the hearing before me, Mr Mills relied on the decision in Sala (EFMs: Right of Appeal) [2016] UKUT 00411 (IAC) to the effect that the appellant did not have a right of appeal to the First-tier Tribunal ("FtT"), and thus the FtJ had no jurisdiction to hear the appeal.
6. Mr Akindele was given time to consider that decision and the appeal was put back in the list to allow him to do so. I then heard submissions from the parties on the issue of jurisdiction.
7. Mr Akindele did not suggest that Sala was wrongly decided but contended that it illustrated that in certain circumstances there was a right of appeal available to an extended family member who has been refused a residence card. I was referred to [26] and what was said about the rights of extended family members being derived "from the procedural right to have their applications determined following extensive examination of their personal circumstances."
8. I was also referred to [86] where there is reference to an inadequate consideration by the Secretary of State of the reg 17(5) discretion in examining that appellant's personal circumstances.
9. As I understood the submissions on behalf of the appellant, they were to the effect that the respondent had not given adequate consideration to the appellant's circumstances when considering the application for a residence card, and thus the appellant did in fact have a right of appeal to the FtT. I was also referred to Yiadom (Free movement of persons) [2000] EUECJ C-357/98, although no copy of it was provided. It was relied on for what it has to say about the availability of appeal rights.
10. Mr Mills submitted that the decision in Sala was clear, and the FtT had no jurisdiction to consider the appeal. At [46] of that decision, it said the opposite of what is contended for on behalf of this appellant. The appellant would be entitled to challenge a decision of the respondent on the refusal to issue a residence card by way of judicial review.
Conclusion
11. The decision in Sala seems to me to be clear and is expressed pithily in the headnote as follows: "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." There is no qualification to that conclusion along the lines suggested on behalf of the appellant before me, and indeed Mr Akindele's submissions would seem to run counter to the very basis of the decision in Sala.
12. Similarly, I cannot see that the decision in Yiadom has any bearing on the matter, that being a case that was concerned with an EEA national (which this appellant is not), who was refused entry to the UK on the grounds of public policy, and whether such an individual is entitled to an in-country right of appeal.
13. The FtJ in this appeal referred to the appeal before him as concerning the decision of the respondent dated 31 March 2015 whereas there is reason to believe that in fact the appeal concerned the later decision dated 29 October 2015. The notice of appeal to the FtT refers to the later decision. What appears to have been the FtJ's error here may have come about because it would appear that, as Mr Mills said, the respondent's bundle only contained the earlier decision.
14. Be that as it may, whether in the case of the earlier or the later decision, I am satisfied that the FtJ lacked jurisdiction to hear the appeal. I adopt and apply the reasoning in Sala. Accordingly, I am satisfied that the FtJ erred in law in hearing the appeal at all, and his decision is set aside. Of course, the FtJ could not have been expected to have considered the jurisdiction point, since the guidance in Sala was not available to him at the time he heard the appeal.
15. At the hearing I announced my conclusion to the above effect, and accordingly I did not invite submissions on the merits of the appeal.
Decision
The First-tier Tribunal had no jurisdiction to hear the appeal and it erred in law in doing so. The decision of the First-tier Tribunal dismissing the appeal is set aside and a decision substituted that there was no valid appeal before the First-tier Tribunal.

Upper Tribunal Judge Kopieczek 02 December 2016