Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/12660/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17 October 2016
On 26 January 2017

Before

UPPER TRIBUNAL JUDGE KOPIECZEK

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MONISOLA OLUTOYIN OKULAJA
Respondent

Representation:

For the Appellant: Ms J. Isherwood, Home Office Presenting Officer
For the Respondent: No appearance and not represented

DECISION AND REASONS
1. Although the appellant in these proceedings is the Secretary of State, for convenience I refer to the parties as they were before the First-tier Tribunal ("FtT")
2. The appellant is a citizen of Nigeria, born on 19 October 1979. On 1 April 2014 she made an application for a residence card as confirmation of a right of residence as the family member (spouse) of an EEA national, a Portuguese citizen. That application was refused in a decision dated 12 March 2015.
3. The appellant's appeal came before First-tier Tribunal Judge Wyman ("the FtJ") on 11 April 2016. She allowed the appeal under the Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations") on the basis that she was satisfied that the appellant is in a durable relationship with her partner and thus qualified as an extended family member under reg 8 of the EEA Regulations. The reason that she allowed the appeal on that basis only was because she concluded that the appellant's proxy marriage was not a valid marriage.
4. The Secretary of State's grounds of appeal upon which permission to appeal was granted were that the FtJ had erred in not making any findings in terms of whether the sponsor was a 'qualified person' and therefore exercising Treaty rights, and secondly in terms of the FtJ having apparently allowed the appeal outright, when it was for the respondent to consider the exercise of her discretion to grant a residence card (see Ihemedu (OFMs - meaning) Nigeria [2011] UKUT 00340(IAC)).
5. The appeal came before me on the above date but by letters dated 15 and 17 October 2016 the appellant's solicitors requested that the appeal to be dealt with 'on the papers'. However, whilst I noted the very regrettable circumstances in which the appellant did not feel able to attend the hearing, I nevertheless considered that I should proceed in the appellant's absence pursuant to rule 38 of the Tribunal Procedure (Upper Tribunal) Rules 2008. I took into account that the respondent was represented and ready to proceed, as well as the fact that the request for the matter to be dealt with on the papers was only received by the Tribunal on the day of the hearing. Furthermore, even though the appellant was unable to attend, no explanation was offered as to why the appellant's representatives did not attend. It may be that there was an explanation, but none was offered.
6. At the hearing Ms Isherwood relied on the grounds and made some limited submissions as to the evidence of employment. However, there was no appellant's bundle on the Tribunal's file. Furthermore, I raised the question of the effect of the decision in Sala (EFMs: Right of Appeal) [2016] UKUT 00411 (IAC). In the circumstances, I considered it appropriate to issue directions to the parties before deciding the appeal. Those directions, in summary, required written submissions from the parties in relation to the Sala point, in relation to the sponsor's employment, and for service of an appellant's bundle.
7. In due course submissions were received from both parties, as well as an appellant's bundle which had been before the FtJ.
8. In Sala it was decided 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. The parallel with the appeal before me is immediately obvious. The FtJ allowed the appeal on a basis which, according to Sala, there would otherwise have been no right of appeal.
9. In the written submissions sent on behalf of the appellant it is contended, in summary, that Sala is not binding on me, and that it was in any event wrongly decided. With reference to the EEA Regulations, in particular regs 2 and 26, and Article 31 of Directive 2004/38/EC ("the Citizens Directive") as well as domestic and European authorities, it is submitted that the appellant did/would have had, a right of appeal against a refusal to issue her with a residence card as a person in a durable relationship. Reference is also made to the documentary evidence in support of the contention that there was evidence establishing the exercise by the sponsor of Treaty rights.
10. Ms Isherwood's submissions contend to the contrary, although recognising that Sala was a case in which the application and refusal had been in relation to a person claiming 'only' to be an extended family member as a person in a durable relationship, and not a family member as a spouse.
11. However, the Tribunal in Sala considered both the Citizens Directive and all relevant aspects of the EEA Regulations, including reg 26. It considered various authorities. I cannot see that the cases relied on in support of the appellant's submissions in this appeal support the contention that Sala was wrongly decided.
12. The decision in Sala seems to me to be clear. It was a decision taken by a senior panel of the Upper Tribunal, including the Vice-President. I adopt and apply the reasoning in Sala to the appeal before me. Although this appellant applied for a residence card as a family member and the FtJ therefore had jurisdiction to hear the appeal, she had no jurisdiction to allow the appeal on a basis in respect of which the appellant had no right of appeal to the Tribunal. It is not argued on behalf of the appellant, nor could it be, that because she had a right of appeal on the basis upon which she advanced it, she could succeed on a basis upon which she would not have had a right of appeal initially.
13. I am satisfied that the FtJ lacked jurisdiction to hear the appeal. Accordingly, I am satisfied that the FtJ erred in law in hearing the appeal at all, and her decision is set aside. Of course, the FtJ could not have been expected to have considered the jurisdiction point, since the guidance in Sala was not available to her at the time she heard the appeal.
14. In the circumstances, it is not necessary to resolve the respondent's grounds of appeal to the Upper Tribunal in terms of the employment of the appellant's partner, or in terms of the decision of the FtJ seemingly to have allowed the appeal 'outright'.
Decision
The First-tier Tribunal had no jurisdiction to hear the appeal and it erred in law in doing so. The decision of the First-tier Tribunal allowing the appeal is set aside and a decision substituted that there was no valid appeal before the First-tier Tribunal.

Upper Tribunal Judge Kopieczek 25/01/17