Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/14179/2015

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 4 October 2016
On 6 October 2016

Before

UPPER TRIBUNAL JUDGE WARR

Between

SECRETARY OF STATE
Appellant
and

GRACE [K]
(No anonymity direction made)
Respondent

Representation:
For the Appellant: Mr Bramble, Home Office Presenting Officer
For the Respondent: Mr Ansah, Hammond Lloyd Legal

DETERMINATION AND REASONS
1. This is the appeal of the Secretary of State but I will refer to the original appellant, a citizen of Ghana born on 7 July 1991, as the appellant herein. She applied for a residence card as confirmation of the right of residence as the family member of an EEA national. Her claimed spouse is Belgian.
2. The parties went through a proxy marriage and the Secretary of State did not consider that the marriage by proxy was conducted in accordance with the laws of Ghana. She further considered that the parties had not established they were in a durable relationship and refused the application on 24 March 2015.
3. The appellant appealed and her appeal came before a First-tier Judge on 6 April 2016. Having helpfully set out regulations 7 and 8 of the Immigration (European Economic Area) Regulations 2006 and directed himself by reference to TA and Others (Kareem explained) Ghana [2014] UKUT 00316 (IAC) and Kareem (Proxy marriages - EU law) [2014] UKUT 00024 (IAC) he records that the Presenting Officer conceded that the appellant's partner was exercising Treaty rights in the United Kingdom. For her part, the appellant's representative conceded that regulation 7 could not be satisfied as she could not provide any details regarding whether proxy marriages were recognised in Belgium. It was accordingly agreed that the appeal would proceed by reference to the appellant's claim as an extended family member under regulation 8.
4. The judge having had the benefit of hearing oral evidence from the couple considered their testimony to be credible and noted that the appellant was expecting a child, the estimated day of delivery being 31 May 2016. The judge allowed the appeal.
5. The Secretary of State applied for permission to appeal and permission was granted by the First-tier Tribunal on 7 September 2016 on the basis that the judge had erred in allowing the appeal outright in the light of Ihemedu (OFMS - meaning) Nigeria [2011] UKUT. The Secretary of State argued that the matter should have been left to the Secretary of State to exercise discretion under regulation 17(4).
6. At the hearing reference was made to a recent decision of the Tribunal chaired by the Vice President - Sala (EFMs: Right of Appeal) [2016] UKUT 00411 (IAC) - in which the Tribunal had decided that there was no right of appeal against the decision to refuse a residence card as an extended family member.
7. Mr Bramble argued that the judge had been in error in allowing the appeal outright and in the light of Sala there was no right of appeal against the respondent's decision. Among the appellant's options would be to make a fresh application.
8. Mr Ansah agreed with Mr Bramble's submissions. The judge's findings had however been open to him and it was clear in the light of the fact that the couple had a child that the relationship was durable. He accepted that there was no jurisdiction, however, in the light of Sala.
9. At the conclusion of the submissions I reserved my decision. It does appear that the decision in Sala establishes that the Tribunal had no jurisdiction to entertain this purported appeal. I heard no argument that Salah should not be followed and I apply it. As Mr Ansah notes favourable findings were made in respect of the couple and the respondent had not sought to go behind these in the grounds of appeal. Moreover the couple had a child who they brought to the hearing before me. Mr Bramble suggested one option was to make a fresh application and that it of course a matter for the representatives to explore no doubt among other options.

Decision
The First-tier Judge had no jurisdiction to allow the appeal in this case.
Accordingly I re-make the decision:
Appeal dismissed for want of jurisdiction.

Anonymity Direction.
The First-tier Judge made no Anonymity Order and I make none.

Fee Award
The judge made no fee award and I make none.

Signed

G Warr, Judge of the Upper Tribunal 5 October 2016