Tribunal decisions

The decision

IAC-FH-nl-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/14621/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision sent to parties on
On 22 December 2016
On 20 January 2017

Before

UPPER TRIBUNAL JUDGE GLEESON

Between

Secretary of State for the Home Department
Appellant
and

kopano wyne motasi
(no anonymity order made)
Respondent

Representation:
For the Appellant: Mr S Walker, a Senior Home Office Presenting Officer
For the Respondent: Mr B Inquai, instructed by Immigration Law LLP, solicitors

DECISION AND REASONS
1. The Secretary of State appeals with permission against the decision of the First-tier Tribunal, allowing the claimant's application for an EEA residence card as an extended family member, and directing that she issue such a residence card.
2. When deciding the appeal, on 4 May 2016, First-tier Tribunal Judge Martins did not have the benefit of the decision of the Upper Tribunal in Sala (EFMS: Right of Appeal) [2016] UKUT 00411 (IAC) which was promulgated on 19 August 2016. Before that date, it had been thought that there was a right of appeal to the First-tier Tribunal and onwards for extended family members challenging decisions under the EEA Regulations. The position now is that the Upper Tribunal has held that there is no such right, and that therefore the only route to challenge such a refusal is judicial review.
3. When granting permission, again before the decision in Sala, First-tier Tribunal Judge Chohan considered that there was an arguable error of law by the First-tier Tribunal in allowing the appeal outright and directing the issue of a residence card. The Secretary of State contends that the Judge should have allowed the appeal to the extent that the application remains before her for a lawful decision and that the direction to issue a residence permit is ultra vires the First-tier Tribunal.
4. However that argument is only reached if the Upper Tribunal's decision in Sala that there is no right of appeal is wrong. I accept that the decision in Sala is not binding upon me, although it is binding upon the First-tier Tribunal, but it is at least highly persuasive. Sala stands unappealed and unchallenged in any court higher than the Upper Tribunal. I am persuaded by the reasoning in Sala and accordingly I conclude that I have no jurisdiction, that there has never been any jurisdiction in the Upper Tribunal to examine this application and that there is no valid appeal before me.
The Regulations
5. The EEA Regulations at Regulation 26(1), define the circumstances in which there is a right of appeal:
"Appeal rights
26(1) Subject to the following paragraphs of this regulation, a person may appeal under these Regulations against an EEA decision. ?" [Emphasis added]
6. The definition of 'EEA decision' is to be found at Regulation 2(1):

"2(1) In these Regulations ....'EEA decision' means a decision under these Regulations that concerns -
(a) a person's entitlement to be admitted to the United Kingdom;
(b) a person's entitlement to be issued with or have renewed, or not to have revoked, a registration certificate, residence card, derivative residence card, document certifying permanent residence or permanent residence card;?
but does not include decisions under regulations 24AA (human rights considerations and interim orders to suspend removal) or 29AA (temporary admission in order to submit case in person);" [Emphasis added]
There is no mention in Regulation 2(1) of a discretion to issue a residence card, which the Upper Tribunal found was the case in applications by extended family members.
The Upper Tribunal's reasoning in Sala
7. The Upper Tribunal's decision is Sala held that in relation to an extended family member there is no entitlement in the Directive or in EU law or indeed in the Regulations. It is a question of the exercise of the Secretary of State's discretion. At paragraph 44 of Sala the Upper Tribunal held that:
"44. The fact that the right of appeal has been long assumed or accepted is not in itself determinative of how we should decide this appeal which must be based upon the proper construction of the EEA Regulations 2006 taking into account, perhaps for the first time, detailed submissions on the point. 'Longstanding universal mistake' is not a canon of construction of a legislative instrument; nor, in the case of domestic legislation, is there any equivalent of art 31(3)(b) of the Vienna Convention on the Law of Treaties) adopted 23 May 1969, Vienna, Austria) which requires subsequent practice 'which establishes the agreement of the parties regarding its interpretation' to be taken into account in construing an international treaty."
8. The Upper Tribunal rejected an argument by Mr O'Callaghan to describe the individual's position when discretion is exercised in his favour as amounting to an entitlement to a residence card and at paragraph 46 the Tribunal said this:
"46. ...The plain fact is that the exercise of discretion sits upon the basis upon which he or she qualifies as an EFM and the outcome of whether or not the residence card is to be issued. If this latter situation can properly be described as an entitlement to the residence card, it would merge into one category situations where choice exists (a discretion) and those where a duty or obligation arises. Only in the latter case can it be said that the individual seeking the benefit of the decision-making process has a right to that benefit or outcome. There is a clear jurisprudential distinction, well recognised in public law generally, between the exercise of discretion and the carrying out of a duty. That distinction is, in our judgment, reflected in the provisions dealing with the issue of residence cards under the EEA Regulations 2006. As the case law makes clear, the only right or entitlement that an EFM has in the decision-making process is that the discretion whether to issue a residence card is exercised lawfully and in accordance with the Citizens Directive (Rahman at [21]-[25])".
(The reference to Rahman is to SSHD v Rahman and Others (Case C-8311) [2013] Imm AR 73 which held that the Member State's obligations to EFMs are limited, only requiring it to facilitate entry and residence in accordance with national legislation founded on an extensive examination of an individual's personal circumstances.)
9. The Tribunal concluded, at paragraph 84 as follows:
"84. Although we have found the issue raised in this appeal a difficult one, we see no sustainable argument to deflect us from the natural meaning of the definition of an EEA decision in reg 2(1) point (b) that we identified earlier. A decision taken by the Secretary of State in the exercise of her discretion not to issue an EFM with a residence card under reg 17(4) is not a decision under the EEA Regulations 2006 which 'concerns a person's entitlement to be issued with... a residence card."
Claimant's arguments
10. Mr Inquai came prepared to argue whether Sala should be followed. I have agreed to record his arguments in my decision, in case the question of want of jurisdiction should be disputed elsewhere. Mr Inquai relied on [22], [41]-[49] and [84] in the reasoning of Upper Tribunal Judge Grubb in Sala.
11. Put shortly, and I hope I do his argument no injustice by so doing, he argued that the Upper Tribunal had taken an unnecessary legalistic approach to the wording of the EEA Regulations, and in particular to the definition of 'EEA decision' at Regulation 2(1) which underpins the right of appeal at Regulation 26(1), and should, instead, have taken a purposive approach which would have included extended family members.
12. For the purpose of clarity, I consider these submissions unarguable. The decision in Sala is clear and there is no need for a purposive approach in these circumstances. I follow Sala and allow the Secretary of State's appeal.
Conclusions
The First-tier Tribunal made a material error of law. I set aside the decision and remake it.
There is no valid appeal before the Upper Tribunal.

Signed: Judith A J C Gleeson Date: 19 January 2017
Upper Tribunal Judge Gleeson