Tribunal decisions

The decision

Upper Tribunal
Immigration and Asylum Chamber Appeal Number: IA/14800/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On: 3 October 2016
On: 5 October 2016

Before

UPPER TRIBUNAL JUDGE KAMARA

BETWEEN

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MRS MABEL [E]
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Ms Z Ahmad, Senior Home Office Presenting Officer
For the Respondent: In person

DETERMINATION AND REASONS
1. This is an appeal against the decision, promulgated on 9 March 2016, of First-tier Tribunal Judge E B Grant.
2. Permission to appeal was granted by First-tier Tribunal Judge Mark Davies on 17 August 2016.

Background
3. The respondent to this appeal sought a residence card as confirmation of a right to reside in the United Kingdom on the basis of being the unmarried partner of [TB], an EEA national.
4. In refusing the above-mentioned application, the Secretary of State noted that the respondent had previously, unsuccessfully, applied for a residence card during 2011 as the spouse of [JG]. The tenancy agreement provided showing the respondent and [TB] as tenants overlapped the earlier application which brought the genuineness of the relationship into serious doubt. No divorce certificate had been provided to show the previous relationship had broken down. The said tenancy agreement was considered to be an unreliable document; no weight was placed upon the birth certificate showing the respondent and [TB] as parents of a child and the findings in relation to their interviews, it was not accepted that they were in a durable relationship.
5. At the hearing before Judge Grant, the Secretary of State was unrepresented. The respondent and the EEA sponsor attended the hearing and submitted DNA evidence showing that the child in question was theirs. They had also had another child and both children had been issued with Spanish passports. The appeal was allowed; the judge accepting that the respondent was in a durable relationship with the sponsor.
6. The grounds of application argued that the judge erred in allowing the appeal of an extended family member outright rather than remitting the matter to the Secretary of State. Reliance was placed on Ihemedu (OFMs - meaning) Nigeria [2011] UKUT 00340 (IAC).
7. Permission to appeal was granted on the basis sought.
8. The respondent did not lodge a Rule 24 response.
9. At the hearing before me, Ms Ahmed simply argued that the judge had no jurisdiction to consider the appeal in view of in Sala (EFMs: Right of Appeal) [2016] UKUT 00411 (IAC). She also relied on Virk & others [2013] EWCA Civ 652 at [23], as follows; "Statutory jurisdiction cannot be conferred by waiver or agreement; or by the failure of the parties or the tribunal to be alive to the point." She confirmed that the Secretary of State did not challenge the judge's findings of fact and suggested that it was open to the respondent to supply the judge's decision to the Secretary of State in support of a further application for a residence card.
10. At the conclusion of the hearing, I announced that I had no jurisdiction to consider this appeal owing to Sala, where the following was decided; "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. "
11. There is no valid appeal before me.
Conclusions
I have no jurisdiction to consider this appeal.
No application for anonymity was made and I saw no reason to make such a direction.

Signed: Date: 4 October 2016

Upper Tribunal Judge Kamara