Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/03673/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20 February 2017
On 24 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

ENTRY CLEARANCE OFFICER - LAGOS
Appellant
and

Mr Adepoju Olayeni Immanuel
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:

For the Appellant: Mr T Melvin, Home Office Presenting Officer
For the Respondent: No Appearance

DECISION AND REASONS

1. This is an appeal by the Respondent, the Entry Clearance Officer, against a decision of Judge of the First-tier Tribunal Bradshaw, who heard the Claimant's appeal on the papers on 5 August 2016.
2. The basis of the appeal before him was that the Claimant had applied for an EEA family permit to visit the United Kingdom in order to enter into a civil partnership ceremony with his partner, Mr Jacob, who is a national of Germany. A previous application had been made which had been refused on 5 August 2014. An appeal against that decision was successful and in a decision promulgated on 19 June 2015, Immigration Judge Norton-Taylor allowed the appeal to the limited extent that the decision was not in accordance with the law and remitted it back to the Entry Clearance Officer. However, upon reconsideration on 25 November 2015, the Entry Clearance Officer again examined the relationship between the Claimant and Mr Jacob and concluded that the Claimant had failed to prove that he was in a durable relationship with an EEA national.
3. When the appeal came before Judge of the First-tier Tribunal Bradshaw, he applied the decision in the case of Devaseelan and found, taking that as a starting point, the Claimant was in a durable relationship with Mr Jacob and held that the Respondent had not exercised her discretion under Regulation 12(2) and again at [18] found that the appeal should be allowed to the limited extent that the Respondent's decision was otherwise not in accordance with the law on the basis that an applicable discretion had not been exercised in terms of Regulation 12(2).
4. Whilst the appeal was heard on 5 August 2016, the Decision and Reasons were not promulgated until 6 October 2016. However, in the interim, as is made clear in the application for permission to appeal by the Entry Clearance Officer, the decision of the Upper Tribunal in Sala (EFMs: Right of Appeal) [2016] UKUT 00411 (IAC) had been promulgated and that makes clear that the First-tier Tribunal had no jurisdiction to determine the appeal.
5. Permission to appeal in respect of the Respondent's application, which was made on 19 October 2016, was granted by Judge of the First-tier Tribunal Froom on 13 January 2016.
6. There was no appearance by or on behalf of the Claimant before me. Mr Melvin, on behalf of the Entry Clearance Officer, sought to rely on the grounds in support of the application for permission to appeal and the decision in Sala (EFMs: Right of Appeal) [2016] UKUT 00411 (IAC). He submitted that I should find a material error of law in the decision of First tier Tribunal Judge Bradshaw. There was nothing before the First-tier Tribunal to consider and that this also applied to the previous decision of Immigration Judge Norton-Taylor.
Discussion
7. It is clear in light of the decision in Sala (EFMs: Right of Appeal) [2016] UKUT 00411 (IAC) that there is no longer a right of appeal in respect of decisions refusing applications by extended family members. That was the position in relation to the extant appeal and as a consequence the First-tier Tribunal had no jurisdiction to entertain the appeal.

Notice of Decision

The appeal by the Entry Clearance Officer allowed on the basis that there was no jurisdiction for the appeal to be heard.

No anonymity direction is made.

Rebecca Chapman

Deputy Upper Tribunal Judge Chapman