Tribunal decisions

The decision

IAC-FH-nl-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/03361/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 16th February 2017
On 24th February 2017

Before

DEPUTY upper tribunal judge ROBERTS

Between

Secretary of State for the Home Department
Appellant

and

arrey susana egbe
(ANONYMITY DIRECTION not made)

Respondent

Representation:

For the Appellant: Ms J Isherwood, Senior Home Office Presenting Officer
For the Respondent: The Appellant in person

DECISION AND REASONS

1. The Secretary of State for the Home Department appeals with permission to this Tribunal against the decision of the First-tier Tribunal in which it allowed the appeal of Arrey Susana Egbe against the refusal of the Secretary of State to grant her a residence card as the extended family member (EFM) of an EEA national exercising treaty rights in the UK.
2. For the sake of clarity throughout this decision I shall refer to Arrey Susana Egbe as "the Appellant" and to the Secretary of State for the Home Department as "the Respondent" which reflects their respective position before the First-tier Tribunal.
Background
3. The Appellant is a citizen of Cameroon (born on 20th October 1980). She claims to be the unmarried partner of a French national, Mr Jean Bonnet "the Sponsor".
4. On 12th May 2015 the Appellant applied for a residence card as the extended family member of Jean Bonnet. The Respondent refused the application as she did not accept that the Appellant and Mr Bonnet were in a durable relationship, not least because at the date of application the Appellant was still married to a Belgian national.
5. The Appellant appealed the decision to refuse her application and her appeal came before Judge Hopkins, sitting at the Birmingham Tribunal on 8th September 2016.
6. After hearing evidence from both the Appellant and the Sponsor, the judge concluded that the Appellant was in a durable relationship with the Sponsor and that this relationship had endured for over two years. He concluded his decision by making a finding that the Appellant is the extended family member of a qualified person and consequently she was eligible to be considered for the issue of a residence card [42].
7. The Respondent sought and was granted permission to appeal. The grounds seeking permission quite simply rely upon the reported decision of this Tribunal in Sala (EFM's: Right of Appeal) [2016] UKUT 00411 (IAC). The Respondent's case is that the First-tier Tribunal had no jurisdiction to entertain the appeal and therefore erred in its decision as there was no valid appeal before it.
The Error of Law Hearing
8. Ms Isherwood appeared for the Respondent. The Appellant appeared in person, but was assisted by her Sponsor, Mr Bonnet. Ms Isherwood relied on the grounds seeking permission and submitted that following Sala the First-tier Tribunal had no jurisdiction to entertain an appeal against the Respondent's refusal to grant a residence card to the Appellant as an extended family member.
9. Mr Bonnet on behalf of the Appellant said he would like to speak on her behalf. Permission was given. He said that the Appellant had lodged her appeal before Sala was reported and therefore the Appellant's appeal should "go through".
10. Ms Isherwood responded by indicating that there was no challenge to the positive findings made in Judge Hopkins' decision on the durability of the relationship, but nevertheless the judge had no jurisdiction to entertain the appeal.
Consideration
11. The hearing of the Appellant's appeal before the First-tier Tribunal, took place on 8th September 2016. Judge Hopkins' decision was not promulgated until 12th September 2016. The UT decision in Sala was reported on 7th September 2016 and therefore in any event it was incumbent on the First-tier Tribunal to follow the rationale of Sala.
12. I am satisfied therefore that the FtT materially erred in its decision, by a failure to follow Sala. I find further that the FtT had no jurisdiction to entertain the appeal and that the appeal should have been rejected on the same basis as the decision in Sala. The decision is therefore set aside in its entirety, save that the finding that the Appellant and the Sponsor are in a durable relationship is preserved.
Notice of Decision
13. The Secretary of State's appeal is allowed to the extent that the First-tier Tribunal materially erred in law. The FtT had no jurisdiction to entertain this appeal and therefore there was no valid appeal before it.

No anonymity direction is made.

Signed C E Roberts Date 23 February 2017

Deputy Upper Tribunal Judge Roberts