Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/17549/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 5 December 2016
On 6 December 2016

Before:

UPPER TRIBUNAL JUDGE GILL

Between

The Secretary of State for the Home Department
Appellant

and

Vidharshana Bhathiya Bandara S Palihana Wickramasinghe Mudiyanselage
(ANONYMITY ORDER NOT MADE)

Respondent

Representation:
For the Appellant: Mr. P Duffy, Senior Presenting Officer.
For the Respondent: Ms. B Daykin, of Counsel, instructed by Theva Solicitors.

DECISION AND REASONS
1. Permission has been granted to appeal to the Upper Tribunal against a decision of Judge of the First-tier Tribunal Graham who, following a hearing on 2 June 2016, allowed outright the appeal of Mr Mudiyanselage (hereafter the "applicant"), a national of Sri Lanka born on 28 March 1983, against a decision of the Secretary of State of 28 April 2015 under the Immigration (European Economic Area`) Regulations 2006 (the "2006 EEA Regulations").
2. The applicant had made an application on 29 December 2014 for a residence card as the unmarried partner of a Ms Prianka Sinnathamby (hereafter the "sponsor"), an EEA national exercising Treaty rights in the United Kingdom. The Secretary of State did not accept that the applicant was an extended family member under regulation 8(5) of t 2006 EEA Regulations. She did not accept that the applicant was in a durable relationship with the sponsor.
3. The judge found the applicant and the sponsor credible witnesses and that they were in a durable relationship. She allowed the appeal outright under the 2006 EEA regulations.
4. The Secretary of State's grounds, which were lodged on 15 June 2016, contended that the judge had materially erred in law, in that, she failed to follow the decision in Ihemedu (OFMs - meaning) Nigeria [2011] UKUT 00340 (IAC) head note (iii) of which states:

Regulation 17(4) makes the issue of a residence card to an OFM/extended family member a matter of discretion. Where the Secretary of State has not yet exercised that discretion the most an Immigration Judge is entitled to do is to allow the appeal as being not in accordance with the law leaving the matter of whether to exercise this discretion in the appellant's favour or not to the Secretary of State.
5. On 19 September 2016, the Upper Tribunal reported the decision in Sala (EFMs: Right of appeal) [2016] UKUT 00411 (IAC). This was a decision in an appeal heard before Mr C M G Ockelton, Vice President, and Upper Tribunal Judge Grubb. The Upper Tribunal held in Sala 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.
6. At the hearing, Ms Jones informed me that she could not go behind the decision in Sala on the basis of which she said she had to accept that the applicant did not have a right of appeal. However, she was keen to ensure that the finding of the judge, that the applicant and the sponsor were in a durable relationship, be preserved.
7. I drew the attention of Ms Jones to the fact that, if the judge did not have jurisdiction to entertain an appeal, her reasoning and findings are in law something that should not have taken place. Nevertheless, it is right to acknowledge that the Secretary of State did not take issue with the judge's reasoning and her finding that, as at the date of the hearing before the judge, the applicant was an extended family member because he was in a durable relationship with the sponsor.
8. Given that Ms Jones accepted that the judge did not have jurisdiction to entertain an appeal, I have decided that the decision of the judge does involve an error on a point of law such that it should be set aside. The error is that the judge did not have jurisdiction and therefore she erred in proceeding to decide the appeal. The error as to jurisdiction is self-evidently material.
9. I have re-made the decision on the appeal. On the authority of Sala and as accepted by Ms Jones, I have concluded that the applicant's appeal to the First-tier Tribunal was not a valid appeal against the decision of the Secretary of State to refuse the applicant's application for a residence card as an extended family member.
10. On this basis, the Secretary of State's appeal to the Upper Tribunal is allowed.
11. However, given that the Secretary of State did not challenge the judge's reasoning, I record that, although she is not bound to do so in law, the Secretary of State ought to take the judge's reasoning into account if the issue as to whether the applicant was an extended family member of the sponsor as at 2 June 2016 (the date of the hearing before the judge) is relevant to any further decision that the Secretary of State may make.
12. Mr Duffy informed me that he would note in the respondent's records that the Secretary of State had granted a residence card to the applicant in Sala in any event.

Decision

The making of the decision of the First-tier Tribunal involved an error on a point of law such that it fell to be set aside. I have set aside it. I have proceeded to re-make the decision on the appeal. The decision is that there is no valid appeal against the Secretary of State's decision of 28 April 2015 because there was no right of appeal against that decision.

Signed Date: 5 December 2016
Upper Tribunal Judge Gill