EA/03481/2015

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The decision



Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/03481/2015


THE IMMIGRATION ACTS


Heard at Manchester
Decision and Reasons Promulgated
On 28 March 2017
On 20 April 2017



Before

UPPER TRIBUNAL JUDGE PLIMMER


Between

EMAD HAMMOUDA
ANOYNIMITY DIRECTION NOT MADE
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Representation:
For the appellant: None
For the respondent: Mr Bates (Home Office Presenting Officer)


DECISION AND REASONS
1. This is an appeal by the Secretary of State for the Home Department (‘SSHD’) against a decision of the First-tier Tribunal (‘FTT’) dated 2 March 2016 allowing the appeal of Mr Hammouda (‘the claimant’) against the SSHD’s decision dated 25 November 2015 to refuse his application for a residence card as confirmation his right to reside in the UK as a person in a durable relationship with an EEA national under the Immigration (European Economic Area) Regulations 2006 (as amended) (‘the 2006 Regulations’).
2. The SSHD was not satisfied that the parties were in a durable relationship. The FTT reviewed detailed and varied evidence, not before the SSHD, in support of the claimed relationship. The FTT found that this evidence entirely supported the appellant’s claim [18] and allowed the appeal.
3. The SSHD’s position before me was put simply: Sala (EFMs: Right of Appeal) [2016] UKUT 411 (IAC) (19 August 2016) makes it clear that the FTT did not have jurisdiction to hear the appeal. That this is correct, is explained in detail in the judgment of the Upper Tribunal.
4. In any event, Regulation 17(4) of 2006 Regulations provides discretion to the SSHD to issue a residence card to an ‘extended family member’. In the claimant's case the SSHD has not yet considered the exercise of such discretion because she did not have the full facts available. It was therefore not open to the FTT to consider the exercise of discretion for itself, absent the SSHD first doing so: see FD (EEA discretion - basis of appeal) Algeria [2007] UKAIT.
5. The SSHD did not appeal the FTT’s findings of fact and Mr Bates candidly accepted there was no reason to doubt the findings. He indicated that any further application is likely to be viewed positively given the FTT’s findings of fact.

Decision
6. The appellant has no right of appeal. The FTT had no jurisdiction to hear the appeal. It erred in law in doing so.
7. I set aside the decision to dismiss the appeal and substitute a decision that there was no valid appeal before the FTT.


Signed:
Ms M. Plimmer
Judge of the Upper Tribunal

Date:
28 March 2017