Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/02120/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 9 March 2017
On 16 March 2017

Before

UPPER TRIBUNAL JUDGE CRAIG

Between

mohammad zeesham aslam
(ANONYMITY DIRECTION NOT MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms A Vatish of Counsel instructed by Wilsons Solicitors
For the Respondent: Mr S Kotas, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant in this case is a national of Pakistan born on 22 August 1982 who applied for a residence card as the extended family member of an EEA national exercising treaty rights in the United Kingdom. That application was refused and he appealed against the decision. His appeal was heard before First-tier Tribunal Judge Nightingale sitting at Hatton Cross on 15 June 2016 but in a decision and reasons promulgated on 23 June 2016 Judge Nightingale dismissed his appeal.
2. The appellant appealed against this decision but before that appeal was put before a judge for consideration as to whether or not to grant permission to appeal, the reported decision of this Tribunal in Sala (EFMs: right of appeal) [2016] UKUT 00411 was promulgated. This decision found, as summarised in the head note, that “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”.
3. This case falls squarely within the category of cases considered within Sala, because this is an appellant who has never been granted any form of recognition as a family member of an EEA national exercising treaty rights, and on behalf of the appellant, Ms Vatish accepts that if Sala is rightly decided, the First-tier Tribunal lacked jurisdiction to entertain his appeal. I note that under “disposal” in Sala, it had been stated as follows:
“The appellant has no right of appeal. The First-tier Tribunal had no jurisdiction to hear the appeal. It erred in law in doing so.”
4. For this reason the decision of the First-tier Tribunal in that case had been set aside and a decision was substituted that there was not a valid appeal before the First-tier Tribunal.
5. Although in exceptional circumstances an Upper Tribunal Judge might decide not to follow a previous decision of this Tribunal, in my judgment on the facts of this case this is not such a case. The decision of this Tribunal in Sala was given by a strong panel consisting of the Vice President and Upper Tribunal Judge Grubb, and it is undesirable save in very exceptional circumstances indeed for this Tribunal to depart from a reported decision unless and until a higher Court indicates that that decision was wrongly decided (although in exceptional circumstances, such as when the differently constituted Tribunal in KMO reached a different conclusion from the Tribunal in MAB this may be inevitable).
6. I note with regard to this appeal that although the application for permission to appeal had been made on behalf of the appellant, permission was not given (by First-tier Tribunal Judge Andrew) on the basis that there was merit in the grounds (on which the judge was silent when giving her reasons) but rather on the basis that “there is an arguable error of law in this matter as the judge had no jurisdiction to consider the appeal in accordance with the guidance in Sala”. As already indicated, the judge herself cannot be faulted in this regard because the decision in Sala was promulgated after the decision in this case and until that time it was believed by almost everyone (including by both parties in Sala) that a decision refusing to grant a residence card to a person claiming to be an extended family member did give rise to a right of appeal.
7. However, for the reasons given, and unless and until the Court of Appeal considers that Sala was wrongly decided, this Tribunal considers itself bound to conclude that the First-tier Tribunal, for the reasons given by this Tribunal in Sala, did not have jurisdiction to entertain the appeal and the appeal must accordingly be allowed on that basis.
8. I record that after this decision had been given orally following the hearing , Ms Vatish, on behalf of the appellant asked for permission to appeal to the Court of Appeal and I informed the parties that I could not consider such an application unless and until it is made following the promulgation of this Decision. Such an application, if made, would now be considered.
Notice of Decision
The decision of the First-tier Tribunal, dismissing the appellant’s appeal is set aside because the appellant had no right of appeal, and the First-tier Tribunal accordingly erred in law in finding that he had.
The decision is accordingly set aside and the following decision is substituted:
The First-tier Tribunal lacked jurisdiction to determine the appeal because there was not a valid appeal before the First-tier Tribunal.

No anonymity direction is made.

Signed:

Upper Tribunal Judge Craig Date: 13 March 2017