Tribunal decisions

The decision

IAC-AH-VP/DH-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/02609/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 23 March 2017
On 28 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAMBERLAIN

Between

SecRetARY OF STATE FOR the HOME DEPARTMENT

Appellant
and

KENNEDY OBENG
(anonymity direction NOT MADE)

Respondent

Representation:
For the Appellant: Mr. D. Clarke, Home Office Presenting Officer
For the Respondent: Mr. E. Ansah, Hammond Lloyd Legal

DECISION AND REASONS

1. This is an appeal by the Secretary of State against the decision of First-tier Tribunal Judge Wyman, promulgated on 23 May 2016, in which he allowed the appeal of Mr. Obeng against the Respondent’s decision to refuse to issue a residence card as confirmation of his right to reside in the UK.

2. For the purposes of this decision I refer to the Secretary of State as the Respondent, and to Mr. Obeng as the Appellant, reflecting their positions as they were before the First-tier Tribunal.

3. Permission to appeal was granted as follows:

“It is arguable that the Tribunal may have erred in allowing the appeal under Regulation 8 of the Immigration (EEA) Regulations 2006 (as amended) being satisfied that the Appellant and the EEA national were in a durable relationship.

This is arguable not only because the issue of a Residence card to an EEA national is discretionary but also because extended family members do not enjoy a statutory right of appeal to the First Tier Tribunal (Sala (EFMs: Right of Appeal) [2016] UKUT 00411 (IAC)).”

4. The Appellant and Sponsor attended the hearing. I heard brief submissions from both representatives following which I reserved my decision.

Error of law

5. Mr. Ansah confirmed that he accepted that there had been no right of appeal before the First-tier Tribunal following the case of Sala. The headnote to Sala states:

“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.”

6. Paragraph [84] states:

“A decision, taken by the Secretary of State in the exercise of her discretion, not to issue an EFM with a residence card under reg 17(4) is not a decision under the EEA Regulations 2006 which “concerns… a person’s entitlement to be issued with…a residence card”.”

7. Mr. Ansah submitted that although there had been no right of appeal to the First-tier Tribunal, nevertheless I should preserve the finding that the Appellant and Sponsor were in a durable relationship, and remit the appeal to the Respondent to consider whether to issue a residence card. Mr. Clarke submitted that, as the First-tier Tribunal had not had jurisdiction to hear the appeal, the appeal before me should simply be dismissed.

8. Given that there was no right of appeal against the Respondent’s decision before the First-tier Tribunal under regulation 26(1), with reference to regulation 2(1), the appeal should not have proceeded as there was no jurisdiction. I therefore find that the decision should be set aside, and no findings be preserved.

Notice of Decision

9. The appeal is dismissed. The decision of the First-tier Tribunal is set aside. There was no right of appeal.

10. No anonymity direction is made.

Signed Date 24 March 2017

Deputy Upper Tribunal Judge Chamberlain

TO THE RESPONDENT
FEE AWARD

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

Signed Date 24 March 2017

Deputy Upper Tribunal Judge Chamberlain