IA/02180/2015

• Status of case: Unreported
• Hearing date: 19 Sep 2016
• Promulgation date: 12 Oct 2016
• Publication date: 5 Sep 2018
• Last updated on: 5 Sep 2018

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number IA/02180/2015


THE IMMIGRATION ACTS


Heard at Centre City Tower
Decision and Reasons Promulgated
On 19th September 2016
On 12th October 2016


Before

DEPUTY UPPER TRIBUNAL JUDGE PARKES


Between

MUHAMMAD YASIR KHAN
(ANONYMITY DIRECTION NOT MADE)
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


For the Appellant: Mr J Komolafe (Solicitor,
For the Respondent: Mrs H Abone (Home Office Presenting Officer)


DETERMINATION AND REASONS

1. The Appellant is a citizen of Pakistan. He applied for a residence card as an Extended Family Member (EFM) on the basis of his dependency on his uncle, a Germany national exercising treaty rights in the UK. The appeal was heard by Judge Birk on the 9th of October 2015 who allowed the appeal outright in a decision promulgated on the 21st of October 2015.

2. The Secretary of State sought permission to appeal to the Upper Tribunal in grounds of the 26th of October 2015. The grounds noted the findings made by the Judge on the credibility of the Appellant. It was argued in the grounds that the Appellant had not actually shown dependency. It was also argued that the Appellant had not shown that he met the test of prior dependency. In allowing the appeal outright the Judge had erred as it was for the Secretary of State to consider the exercise of discretion. Permission was granted on the 11th of April 2016 by the First-tier Tribunal.

3. The hearing was conducted before the decision in Sala (EFMs: Right of Appeal) [2016] UKUT 411 (IAC). That decision has a publication date of the 19th of August 2016 but it was not known to the parties or myself at the hearing and was first published to my knowledge by the Tribunal's Legal and Research Unit in the bulletin of the 20th of September 2016.

4. Under the law as it was understood when the First-tier Tribunal hearing took place in allowing the appeal outright the Judge had erred in any event. At the very least I would have had to remit the case to the Secretary of State to consider the exercise of her discretion to issue a residence card. Having considered the First-tier Tribunal decision I would have held that the decision was flawed in the approach to the issue of dependency pre-entry and within the UK and would have remitted the decision to the First-tier Tribunal for re-hearing on all issues with no findings preserved. However following Sala that is not a course of action that is open to me.

5. The effect of Sala is that there is no right of appeal in cases involving EFMs and that in this case the Judge had no jurisdiction to hear the appeal or to make findings. On that basis there is a clear error of law and I set aside the decision of the First-tier Tribunal and remake the decision finding that there is no valid appeal.

CONCLUSIONS

The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.

I set aside the decision.

I re-make the decision in the appeal finding that there was no valid appeal.

Anonymity

The First-tier Tribunal did not make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 and I make no order.

Fee Award

In finding that there was no valid appeal I make no fee award.

Signed:

Deputy Judge of the Upper Tribunal (IAC)

Dated: 11th October 2016