Tribunal decisions

The decision

IAC-fH-WYL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/19157/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 15 November 2016
On 18 November 2016

Before

LORD BANNATYNE
(SITTING AS A JUDGE OF THE UPPER TRIBUNAL)
UPPER TRIBUNAL JUDGE PITT

Between

Secretary of State for the Home Department
Appellant
and

ANTHONY GABRIEL IYAKI
(anonymity direction not made)
Respondent

Representation:
For the Appellant: Mr Melvin, Home Office Presenting Officer
For the Respondent: Ms C H Bexson, Counsel

DECISION AND REASONS
Background
1. For the sake of continuity we will refer to the parties as they were before the First-tier Tribunal, although technically the Secretary of State is the appellant in the appeal to the Upper Tribunal.
2. The appellant is a citizen of Nigeria. The appellant's date of birth is 31 December 1987. On 9 January 2015, the appellant's solicitors applied on his behalf for a residence card as confirmation of a right to reside in the United Kingdom. On 13 May 2015, the appellant's application was refused under Regulation 8 of the Immigration (EEA) Regulations 2006. The respondent refused to issue the appellant a residence card as confirmation of a right of residence under European Community Law on grounds that the appellant had not provided sufficient evidence of a dependency on his EEA sponsor.
3. The appellant appealed against this decision to the First-tier Tribunal and in a determination promulgated on 3 June 2016 the First-tier Tribunal allowed the appeal under the said Regulations.
4. The respondent sought permission to appeal to the Upper Tribunal and this was granted on 21 October 2016.
5. The issue before the First-tier Tribunal was this: had the appellant established that on the balance of probabilities he satisfied Regulation 8(5) of the Immigration (EEA) Regulations 2006 in that he had been in a durable relationship as an unmarried partner of an EEA sponsor and therefore that he qualified as an extended family member of such person.
The Issue Before the Upper Tribunal
6. On the matter coming before us the respondent sought leave to amend their grounds of appeal by making reference to the determination in Sala (EFMs: right of appeal: Albania) [2016] UKUT 411. In terms of the foregoing determination it was held:
"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." (see: the headnote).
7. No objection was taken on behalf of the appellant to the amendment of the grounds of appeal and we accordingly allowed the grounds of appeal to be amended to include a ground of appeal based on the decision in the above case. The amendment having been made Mr Melvin submitted that given the decision in Sala the First-tier Tribunal had no jurisdiction to hear the appeal and accordingly its determination should be set aside.
8. With respect to Mr Melvin's position based on the determination in Sala only a single argument was put forward on behalf of the appellant which was this: the decision in Sala post-dated the determination of the First-tier Tribunal and should not for that reason be applied retrospectively to the determination of the First-tier Tribunal. No submissions were put forward on behalf of the appellant challenging the substance of the decision in Sala and arguing that it was wrongly decided in law.
Discussion
9. We are satisfied that there is no merit in the argument put before us on behalf of the appellant. Sala, in the absence of a challenge to the effect that it is not properly decided in law, (and no such challenge was made here) is the appropriate law to apply when an appeal comes before this Tribunal raising the issue of the jurisdiction of the First-tier Tribunal to hear an appeal against a decision of the Secretary of State not to grant a residence card to a person claiming to be an extended family member. It is clearly open to us to apply the law as set out in Sala to the determination of the First-tier Tribunal, although Sala post-dates the determination of the First-tier Tribunal. We accordingly reject the argument advanced on behalf of the appellant.
10. There being no challenge to the substance of the decision in Sala we find that there is a clear material error of law in the decision of the First-tier Tribunal. It had no jurisdiction to hear the appeal from the respondent's decision.
Decision
11. We accordingly set aside the determination of the First-tier Tribunal as it is void for want of jurisdiction.
12. We make no anonymity direction.

Signed Date

Lord Bannatyne
Sitting as a Judge of the Upper Tribunal