Tribunal decisions

The decision

St

The Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/03535/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 3rd April 2017
On 4th April 2017

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL FARRELLY

Between

Mr. RAJA ASRAR AHMED.
(NO ANONYMITY DIRECTION MADE)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Himself.
For the Respondent: Mrs. Aboni, Home Office Presenting Officer.

DECISION AND REASONS

Introduction

1. This is the respondent's appeal against the decision of First-tier Judge Taylor allowing the appellant's appeal against the respondent's refusal to issue him with a residence card.
2. The appellant is from Pakistan. On 10 July 2015 application was made on his behalf for a residence card on the basis he was an extended family member of the European national exercising Treaty rights. This related to Ms Karolina Sobieska, a Polish national. He said they had been cohabiting since 31 January 2014. They have a child, born on 1 November 2014.

3. His application was refused on the 1st December 2015. This was because he had failed to provide a valid passport with his application or proof he was unable to do so. As an unmarried partner the respondent required evidence of a relationship similar to marriage of at least two years duration. The birth of a child in itself did not demonstrate a relationship with durable.

The First tier Tribunal.

4. First-tier Judge Taylor heard the appeal on 16 September 2016. The appellant indicated that he was due to marry Ms Sobieska on 3 December 2016. The judge heard from the appellant and Ms Sobieska. The judge accepted that the relationship with genuine. At that stage they had been together over two years. The appellant had also produced a certified copy of his original passport with the application and at hearing produced a copy of his new passport.

The Upper Tribunal

5. The respondent sought permission to appeal on the basis of the decision in Sala (EFMs:Right of Appeal) [2016] UKUT 00411.It held that in the case of an extended family member there was no right of appeal. Consequently, the respondent submitted the First-tier tribunal did not have jurisdiction.

6. The appellant attended and indicated the hardship it would cause him to have to reapply. He indicated he had been waiting a number of years to regulate his situation and could not lawfully work in the interval. He produced a marriage certificate which confirms he and his partner married on 18 November 2016. He indicated an understanding of the impact of the Sala decision but made the point that his application and indeed the tribunal decision predated it. He also said that his wife is now expecting their second child.

Consideration.

7. Sala (EFMs: Right of Appeal: Albania) [2016] UKUT 411 (IAC) held 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. The decision appealed against here was therefore not in fact an appealable decision.
8. The admission of the appeal and the hearing by First-tier Judge Taylor predated promulgation of Sala. That decision does not change the law but is declaratory of rights of appeal. Where there is no jurisdiction, there can be no findings of fact or decision. Whilst First-tier Judge Taylor is not to be faulted given that the Sala decision was not promulgated at the time: nevertheless, in allowing the appeal there was a material error of law. There was no jurisdiction to hear the appeal. On the facts there was no other basis for bringing an appeal.

9. There has been a change of circumstance since the original application and appeal. The appellant has now married Ms Sobieska and consequently his status is that of an immediate family member. Procedurally having found an error of law in the decision of First-tier Judge Taylor on jurisdictional grounds I cannot remake that decision on the basis he is now an immediate family member. It is open to the appellant to make another application as an immediate family member which, if unsuccessful, will carry appeal rights.
Decision

The decision of First-tier Judge Taylor allowing the appeal contains a material error of law and cannot stand. This is because there was no jurisdiction to hear the appeal. I set the decision aside and substitute a decision that there was no valid appeal before the First-tier Tribunal.

Deputy Judge Farrelly

3rd April 2017