Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/14909/2015
IA/33002/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 25 January 2017
On 15 February 2017

Before

UPPER TRIBUNAL JUDGE CANAVAN

Between

HIRALBEN NIMESHKUMAR PATEL
NIMESHKUMAR GHANSHAYAMBHAI PATEL
Appellants

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the appellant: Ms L. Turnbull, Counsel instructed by Krish Ratna & Co.
For the respondent: Ms Z. Ahmad, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellants appealed against the respondent's decision dated 28 March 2015 to refuse to issue a residence card recognising a right of residence as the extended family members of an EEA national.

2. First-tier Tribunal Judge Quinn dismissed the appeal in a decision promulgated on 03 August 2016 because he was not satisfied that the appellants produced sufficient evidence to show prior dependency on the EEA sponsor in India for the purpose of regulation 8 of The Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations 2006").

3. On 17 August 2016 the appellants applied to the First-tier Tribunal for permission to appeal to the Upper Tribunal asserting that the judge erred in failing to give sufficient weight to evidence of remittances made by the EEA sponsor to them in India.

4. The Upper Tribunal decided the case of Sala (EFMs: Right of Appeal) [2016] UKUT 00411 on 19 August 2016. In that case the Tribunal concluded that there was in fact no statutory right of appeal against a decision of the Secretary of State to refuse to issue a residence card to a person claiming to be an extended family member.

5. In a decision sent on 29 December 2016 First-tier Tribunal Judge Chohan granted permission to appeal to the Upper Tribunal on the ground that it was arguable that the judge failed to give sufficient consideration to the money transfers, which might have made a material difference to the outcome of the appeal. Judge Chohan made no reference to the decision in Sala despite the fact that it was a reported decision of the Upper Tribunal.

Decision and reasons

6. The appellants' application for a residence card comes squarely within the parameters of the Upper Tribunal decision in Sala. They applied for a residence card as extended family members and asserted that they met the requirements of regulation 8 of the EEA Regulations 2006.

7. Ms Turnbull said that she was aware of the decisions in Sala and Virk v SSHD [2013] EWCA Civ 652. She acknowledged that she was in some difficulty following the decision in Sala but she asked me to consider the fact that the appellants had a right of appeal at the time when the case was heard before the First-tier Tribunal. It is clear that at the date of the First-tier Tribunal hearing in June 2016 the law, as it then stood, did not preclude the appellants from pursuing an appeal against the respondent's decision. No issue had been taken as to jurisdiction at that time. However, the effect of the subsequent decision in Sala was to shine a light on the legal position. Following Sala the legal position is that there is in fact no right of appeal against a decision to refuse a residence card as an extended family member of an EEA national.

8. Even if Judge Chohan thought that there was arguable merit in the grounds of appeal the Upper Tribunal does not have jurisdiction to consider whether there are any arguable errors of law in the First-tier Tribunal decision and has no jurisdiction to set aside the decision let alone remake it. In light of the decision in Sala I conclude that there is no valid appeal before the Upper Tribunal.

DECISION

The appeal to the Upper Tribunal is dismissed for want of jurisdiction

Signed Date 14 February 2017
Upper Tribunal Judge Canavan