Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/08787/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
Heard on 5th January 2017
On 25th January 2017
Prepared on 18th January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE WOODCRAFT

Between

MR AASHIK HUSSAIN MOHAMMED
(Anonymity order not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr R Solomon of counsel
For the Respondent: Mr S Whitworth, Home Office Presenting Officer

DECISION AND REASONS

The Proceedings

1. The Appellant is a citizen of Sri Lanka born on 30th of August 1989. He appeals against a decision of Judge of the First-tier Tribunal Onoufriou sitting at Hatton Cross on 23rd of February 2016 in which the Judge dismissed the Appellant's appeal against a decision of the Respondent dated 14th of February 2015. That decision was to refuse to issue the Appellant with a residence card as the confirmation of a right of residence under European Community law as the extended family member of an EEA national exercising treaty rights in the United Kingdom pursuant to regulation 8 (2) of the immigration (EEA) regulations 2006 ("the 2006 regulations").

2. The application was based on the Appellant's claim that he was dependent upon his uncle, a German national ("the sponsor"). The biological relationship was accepted by the Judge but the appeal was dismissed because the Judge was not satisfied that the Appellant was dependent on the sponsor whilst in Sri Lanka nor that the Appellant was of the same household and/or dependent on his sponsor whilst in the United Kingdom.

3. The Appellant appealed against that decision arguing that the Judge had fallen into error in his decision on the question of dependency. Permission to appeal was refused by the First-tier on 21 October 2016 but on renewal to the Upper Tribunal was granted by Upper Tribunal Judge Plimmer on 28 November 2016 who found it arguable that the First-tier had failed to make adequate findings regarding the credibility of the oral evidence.

4. The Judge's decision was dated 2 March 2016. On 7 June 2016 the Upper Tribunal completed its consideration in the case of Sala [2016] UKUT 411. The Upper Tribunal decided that there was no right of appeal against a Respondent's decision under Regulation 8 of the 2006 Regulations to refuse to issue a residence card to extended family members. There continued to be a right of appeal against decisions under Regulation 7 (refusal to issue a residence card to family members).

5. By letter dated 15 December 2016 the Respondent replied to the grant of permission to appeal citing Sala. The Upper Tribunal was invited to strike out the proceedings and the permission to appeal for want of jurisdiction. When the matter came before me counsel made brief submissions as to whether there was a right of appeal indicating that there was presently outstanding an appeal to the Court of Appeal on the Sala point. I indicated however that I was bound by the decision in Sala which applied to the facts in this case. I noted that once the decision of the First-tier in this case was declared to be invalid it meant that none of the findings of the First-tier could be preserved in the event for example that the Appellant were to make another application under the 2006 Regulations.

Findings

6. At the time the First-tier Judge heard the case there was thought to be a right of appeal against decisions taken by the Respondent to refuse Regulation 8 applications for extended family members. By the time the matter came before the Upper Tribunal on the renewal of the permission to appeal and certainly by the time the matter came before me it was known that there was not in fact a right of appeal and thus there had never been a valid appeal before Judge Onoufriou. This meant, because of the retrospective application of the common law, that the First-tier decision contained a material error of law since the Judge had had no jurisdiction to hear the appeal in the first place. One must of course have some considerable sympathy for the position of the First-tier Judge in this case whose decision was in accordance with the law at the time it was taken but is no longer in accordance with the law following the decision in Sala. Nevertheless the decision of the first-tier did contain a material error of law and I set it aside. I remake the decision in this case by finding that there is no valid right of appeal against the Respondent's decision.

Notice of Decision

The decision of the First-tier Tribunal involved the making of an error of law and I have set it aside. I remake the decision in this case by finding that there is no valid appeal before the Tribunal and the Appellant's appeal is dismissed for want of jurisdiction.

Appellant's appeal dismissed.

I make no anonymity order as there is no public policy reason for so doing.

Signed this 24th January 2017

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Judge Woodcraft
Deputy Upper Tribunal Judge

TO THE RESPONDENT
FEE AWARD

Although I have set aside the decision at first instance, since there was no valid right of appeal there can be no fee award in this case.

Signed this 24th January 2017

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Judge Woodcraft
Deputy Upper Tribunal Judge