Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/14416/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10th October 2016
On 13th October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE M A HALL

Between

the Secretary of State for the Home Department
Appellant
and

Suranga Sampath Liyanage
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr S Whitwell, Senior Home Office Presenting Officer
For the Respondent: Mr B Lams of Counsel, instructed by SBG Solicitors

DECISION AND REASONS
Introduction and Background
1. The Secretary of State appeals against the decision of Judge Lingam of the First-tier Tribunal (the FtT) promulgated on 9th May 2016.
2. The Respondent before the Upper Tribunal was the Appellant before the FtT and I will refer to him as the Claimant.
3. The Claimant is a male Sri Lankan citizen born 30th September 1983 who claimed to have entered the United Kingdom on 11th May 2007. On 9th July 2014 the Claimant applied for a residence card as the extended family member of an EEA national, which application was refused with no right of appeal.
4. On 19th November 2014 the Claimant made a further application for a residence card as the extended family member of an EEA national, that being his cousin Pathiranage Don Nilanka Sampath Yapa Subasinghe (the Sponsor) who is a citizen of the Netherlands.
5. The application was refused on 29th March 2015 with reference to regulation 8(2) of The Immigration (European Economic Area) Regulations 2006 (the 2006 Regulations).
6. In giving reasons for refusal the Respondent did not accept that the Claimant and the Sponsor were related as claimed as original birth certificates together with English translations had not been provided. In addition it was contended that the Claimant had not provided any evidence of dependency upon the Sponsor at any time, either in Sri Lanka, or in the United Kingdom. The Claimant had not provided any evidence that he was dependent on the Sponsor immediately prior to entering the United Kingdom, and had not provided any evidence that he was residing with, or had been dependent upon the Sponsor since entering the United Kingdom. The application was therefore refused with reference to regulation 8(2)(a) and (c) of the 2006 Regulations.
7. The Claimant appealed, and his appeal was heard by the FtT on 12th April 2016. The FtT heard evidence from the Claimant and Sponsor and was satisfied that the Claimant and Sponsor were related as first cousins. The FtT found that the Claimant had proved past membership of the Sponsor's household. The FtT also found that the Claimant had been financially supported by the Sponsor prior to entering the UK, and that the Claimant was a current member of the Sponsor's household, and currently financially dependent upon him. The FtT found that the requirements of regulation 8 were satisfied and the appeal was therefore allowed.
8. The Secretary of State applied for permission to appeal to the Upper Tribunal. In summary it was contended the FtT had erred in finding that the Claimant had been part of the Sponsor's household prior to coming to the UK in 2007. It was pointed out that the Sponsor is two years younger than the Claimant, and it was not the Sponsor's household in which the Claimant lived in Sri Lanka, but the household of the Sponsor's father, the Claimant's uncle. The property in which the Claimant lived, was transferred into the Sponsor's name in 2013 by way of a deed of gift, but by this time the Claimant had already been in the UK for approximately six years. He had therefore never been a member of the Sponsor's household prior to coming to the United Kingdom.
9. It was contended that the FtT had erred by finding any evidence that the Sponsor had made financial contributions to the Claimant, prior to the Claimant coming to live in the United Kingdom.
10. Permission to appeal was granted by Designated First-tier Tribunal Judge Macdonald in the following terms;
"The grounds of application point out that the Sponsor is two years younger than the Appellant and it was not his household but that of his father, namely the Appellant's uncle. While there was a deed of gift to the Sponsor the Appellant had already been in the UK for around six years. He had never therefore been a member of the Sponsor's household at the relevant time. Reference is made to Moneke.
The judge did find that the Appellant had shown past membership of his Sponsor's household but it may be, as the grounds suggest, that there has been a material error in fact by the judge which translates into an arguable error in law."
11. Following the grant of permission the Claimant lodged a response pursuant to rule 24 of The Tribunal Procedure (Upper Tribunal) Rules 2008. In summary it was denied that the FtT had erred in law materially or at all, and reliance was placed upon the skeleton argument that had been before the FtT.
12. Directions were subsequently issued that there should be an oral hearing before the Upper Tribunal to ascertain whether the FtT had erred in law such that the decision must be set aside.
The Upper Tribunal Hearing
13. Mr Whitwell raised an issue that had not been in the Grounds of Appeal, that being the validity of the Claimant's appeal to the FtT, and relied upon Sala (EFMs: Right of Appeal) [2016] UKUT 00411 (IAC).
14. Mr Lams raised no objection to this point being considered and was not taken by surprise, as he had addressed this issue in his skeleton argument dated 9th October 2016 which was provided to the Tribunal, and Mr Whitwell.
15. In brief summary Mr Whitwell submitted that the Claimant claimed to be the extended family member of an EEA national, being related to the Sponsor as a first cousin. Therefore Sala was authority to confirm that the Claimant did not have a statutory right of appeal to the FtT, and the FtT had materially erred in law in considering the appeal.
16. If I did not accept Mr Whitwell's submissions in relation to the invalidity of the appeal, Mr Whitwell relied upon the grounds contained within the application for permission to appeal, as disclosing a material error of law.
17. Mr Lams relied upon his skeleton argument, acknowledging that the principal issue related to jurisdiction.
18. Mr Lams submitted copies of the case law referred to in paragraph 3 of his skeleton argument, and in very brief summary, argued that Sala was wrongly decided and was not binding on the Upper Tribunal.
19. Mr Lams argued that the submissions made in Sala by the Claimant, and the Respondent, were in fact correct and should have been accepted by the Upper Tribunal, and Mr Lams adopted those submissions before me.
20. If I found that Sala should not be followed, and therefore the Claimant had lodged a valid appeal, Mr Lams submitted that the grounds relied upon by the Secretary of State did not disclose a material error of law. I was invited to find that the FtT was entitled to conclude that the Claimant had been a member of the Sponsor's household, and also had been financially dependent upon him prior to entering the United Kingdom.
21. At the conclusion of submissions I reserved my decision.
My Conclusions and Reasons
22. Both representatives agreed that the initial issue to be considered related to jurisdiction, and I find this to be the case.
23. I have taken into account the oral submissions made by both representatives, and Mr Lams' skeleton argument.
24. I made the representatives aware that the Upper Tribunal file did not contain the bundle submitted on behalf of the Claimant before the FtT. It is clear that such a bundle was before the FtT as there is reference to it in the decision. Mr Whitwell supplied me with the relevant pages from that bundle, that related to the issues before me.
25. I am unable to accept that Sala has been wrongly decided. I set out below the headnote to that decision;
"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."
26. Sala was decided by a Vice-Presidential panel, and the panel considered forensically and comprehensively the issues in appeals relating to extended family members.
27. The Claimant in this case claims to be the extended family member of an EEA national. It is not disputed that they are related as cousins.
28. However, because the Claimant relied upon regulation 8 of the 2006 Regulations, and relied upon being an extended family member of an EEA national, I have to conclude that he had no statutory right of appeal against the decision of the Secretary of State to refuse to grant him a residence card, and the error of law was the failure of the FtT to recognise that. It should go without saying that no blame can be attached to the FtT, as Sala had not been published when the FtT decision was made.
29. Nevertheless, because the FtT had no jurisdiction to hear the appeal, it erred in law in doing so. It is therefore not necessary to go on and examine the Grounds of Appeal initially submitted by the Secretary of State. I set aside the decision of the FtT. The decision is re-made in that I find there was no valid appeal before the FtT.
Notice of Decision

The decision of the FtT involved the making of an error of law such that it is set aside. I substitute a fresh decision that there was no valid appeal before the FtT.

Anonymity

The FtT made no anonymity direction. There has been no request for anonymity made to the Upper Tribunal and I see no need to make an anonymity order.

Signed Date 10th October 2016

Deputy Upper Tribunal Judge M A Hall

TO THE RESPONDENT
FEE AWARD

The Claimant's appeal is invalid. There is no fee award.

Signed Date 10th October 2016

Deputy Upper Tribunal Judge M A Hall