Tribunal decisions

The decision

IAC-FH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/15317/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 16 December 2016
On 11 January 2017

Before

DR H H STOREY
JUDGE OF THE UPPER TRIBUNAL

Between

the Secretary of State for the Home Department

Appellant
and

Oladapo Abayomi Ogunsola
(ANONYMITY DIRECTION NOT MADE)

Respondent

Representation:

For the Appellant: Mr N Bramble, Home Office Presenting Officer
For the Respondent: In person

DECISION AND REASONS

1. The respondent (hereafter the claimant) is a citizen of Nigeria. On 5 July 2016 a First-tier Tribunal (Judges Appleyard and Mulholland) allowed his appeal against a decision made by the appellant (hereafter the Secretary of State or SSHD) on 8 April 2015 refusing to grant him a residence card as confirmation of a right of residence as an extended family member (EFM) of an EEA national exercising Treaty rights. The claimant had applied for a residence card on the basis that he was in a durable relationship with a Polish national, Miss Palka, who he had met in April 2013. The SSHD appealed, arguing that the judge erred in allowing the appeal outright when the SSHD had yet to exercise her discretion under regulation 17(4) of the Immigration (European Economic Area) Regulations 2006. By the time this appeal was considered as to whether to grant permission by FtT Judge Davidge, the Upper Tribunal had reported its decision in Sala (EFMs: Right of Appeal) [2016] UKUT 00411 (IAC) stating in its head note that "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". Judge Davidge concluded that the grounds were arguable and had also to be considered in the light of Sala.

2. At the hearing I heard submissions from Mr Bramble and the claimant. Mr Bramble argued that in light of Sala I should find that the FtT judge erred in law through wrongly assuming he had jurisdiction to decide the appeal. Even if Sala were left to one side, submitted Mr Bramble, the judge erred in allowing the appeal outright. The claimant submitted that since at the time of the decision of the FtT Sala had not been reported, it could not be an error on the part of the judge to consider he had jurisdiction. The claimant outlined all the difficulties he had had with the immigration authorities since they refused his application for leave to remain.

3. I am satisfied that the judges erred in law in assuming they had jurisdiction. They cannot be criticised for assuming they had since that is what judges at all levels had been doing before Sala. But the recent decision in Sala now stands as the correct interpretation of the relevant law by the Upper Tribunal. Following established principles, it must be taken to declare what the law must be understood to have always been. Accordingly the decision of the FtT judges must be set aside.

4. Even had I not applied Sala I would still have found that the FtT judges erred in law and I would have set aside the decision because the SSHD is unassailably right to submit that the judges were not entitled to allow the appeal outright, since the grant of a residence permit for EFMs is under regulation 17(4) of the EEA Regulations is a matter of discretion and she had not as yet exercised that discretion.

5. Assuming Sala is upheld by the higher courts, the claimant may well have to switch his intention to lodging an application for Judicial Review. In this connection I make the observation that the claimant may be entitled to approach the SSHD for a fresh decision on the basis that a judicial body (two judges of the FtT) have found the account given by him and his partner to be truthful, both being "credible and reliable witnesses" (para 35). In the SSHD's grounds of appeal she raised no challenge to the FtT's findings of fact and she herself argued that the case should be remitted to her to consider whether to grant a residence permit under regulation 17(4).

6. For the above reasons the FtT judge erred in law. The decision I re-make is to find that the claimant has no right of appeal and therefore I have no jurisdiction to hear the appeal: Sala.

No anonymity direction is made.

Signed Date

Dr H H Storey
Judge of the Upper Tribunal