Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/13947/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 16 November 2016
On 23 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE SHERIDAN

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

SUMAIR ASLAM
(ANONYMITY DIRECTION NOT made)
Respondent

Representation
For the Appellant: Mr P Singh, Home Office Presenting Officer
For the Respondent: Mr T Gaisford, Counsel instructed by M R Solicitors

DECISION AND REASONS
1. The respondent is a citizen of Pakistan born on 18 November 1978. On 3 December 2014 he applied for a residence card under the Immigration (EEA) Regulations 2006 ("2006 Regulations") as an extended family member of an EEA national.
2. His appeal was refused and he appealed to the First-tier Tribunal. In a decision promulgated on 17 February 2016 First-tier Tribunal Judge Singh allowed the appeal on the basis that the respondent satisfied the definition of an extended family member in Regulation 8(2).
3. The Secretary of State appealed on the ground that there was not a lawful basis to allow the appeal outright as the Secretary of State had not yet applied her discretion under Regulation 17(4) of the 2006 Regulations.
4. Before me, Mr Singh, on behalf of the Secretary of State, argued, firstly, that following Sala (EFMs: Right of Appeal) 2016 UKUT 00411 (IAC) I should find an error of law on the ground that there is no statutory right of appeal in this case. Secondly, he argued that the judge was not, in any event, entitled to allow the appeal under the 2006 Regulations and at the most could only have found that the decision was not in accordance with law as the Secretary of State had yet to exercise her discretion.
5. Mr Gaisford's response was that if the judge erred by allowing the appeal outright the error was not material. He stressed that the judge's findings of fact had not been challenged and should stand, regardless of my finding regarding jurisdiction. He also noted that jurisdiction has not been raised in the grounds.
Consideration
6. Although there has been a longstanding assumption that there is a right of appeal under Regulation 26 of the 2006 Regulations against a decision of the Secretary of State to not grant a residence card under Regulation 17(4) of the 2006 Regulations to a person claiming to be an extended family member of an EEA national, the Upper Tribunal panel in Sala has made clear that there is no such right. For the reasons given in Sala, with which I agree, the respondent did not have a right of appeal against the Secretary of State's decision and the First-tier Tribunal did not have jurisdiction to hear the appeal.
7. The judge's decision was made before Sala was promulgated and therefore the judge cannot be faulted for proceeding on the basis that there was jurisdiction to hear the appeal. However, for the reasons given in Sala, there was no jurisdiction and it was an error of law to proceed on the basis that there was.
8. This finding is sufficient to dispose of the matter. However, for completeness, and in any event, I find that a further error arises from the judge allowing the appeal when whether or not to issue a residence card to an extended family member is at the Secretary of State's discretion. Where, as in this appeal, the Secretary of State's discretion has not yet been exercised the most the judge could have done (if he had jurisdiction) was to allow the appeal as not being in accordance with the law, leaving the matter of how to exercise that discretion to the Secretary of State. See Ihemedu (OFMs - meaning) Nigeria [20111] UKUT 340 (IAC).

Decision
1. The First-Tier Tribunal did not have jurisdiction to hear the appeal.
2. Given the absence of jurisdiction, it was an error of law to hear the appeal and the decision of the First-tier Tribunal is set aside.
3. I remake the decision of the First-tier Tribunal by dismissing the respondent's appeal as he does not have a statutory right of appeal against the Secretary of State's decision to not grant him a residence card as an extended family member of an EEA national.

Signed

Deputy Upper Tribunal Judge Sheridan

Dated: 22 November 2016