Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/21262/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 9 December 2016
On 5 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SYMES

Between

CAROLINA THERESA BASTERO
(ANONYMITY ORDER NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Herself
For the Respondent: Mr N Bramble (Senior Home Office Presenting Officer)

DECISION AND REASONS

1. This is the appeal of Carolina Theresa Bastero, a citizen of the Philippines born 15 October 1967, against the decision of the First-tier Tribunal of 12 July 2016, dismissing her appeal against a refusal to issue a residence card of 17 August 2015.

2. Her application had been for a residence card as an extended family member on the basis of her membership of the household of Marian Urbanek, a citizen of Slovakia exercising Treaty Rights in the United Kingdom, and the spouse of her sister Ms Cherry Urbanek. The representations of 14 January 2015 from Alcantara Consultancy Services Ltd explained the background to that application. The Appellant lived with her sister and brother-in-law in a self-sufficient family unit without any recourse to public funds.

3. The application was refused because the evidence attesting to the relationship between the sisters was illegible, and because no history of dependency was established, the decision maker noting that the Urbaneks had married in 2010 whereas the Appellant had entered the United Kingdom in 2005: accordingly it was presumed that they could not have cohabited abroad such that it could be said that she was accompanying or joining a relevant extended family member in this country.

4. The Appellant appealed against that decision. There was no appearance on behalf of the Appellant at the hearing. An application had previously been made by the Appellant's sister for an adjournment on grounds of a lack of legal representation, and refused, because it had been formulated too late. The First-tier Tribunal dismissed the appeal because the Appellant had not discharged the burden of proof that lay upon her, absent attending the hearing to explain herself and without having provided a witness statement explaining her case as to how she met the requirements of the EEA Regulations.

5. The First-tier Tribunal granted permission to appeal to the Upper Tribunal on 3 November 2016 on the basis that it was arguably unlawful for the Judge below to have fond there to have been no material evidence before him upon which the Appellant could succeed, without having regard to the covering letter supporting her application.

Findings and reasons

6. The Tribunal's understanding of the availability of appeal rights in extended family member cases has progressed since this appeal was first listed and heard in the First-tier Tribunal. The issue has been thoroughly examined in Sala (EFMs: Right of Appeal: Albania) [2016] UKUT 411 (IAC). Reg 26(1) of The Immigration (European Economic Area) Regulations 2006 sets out a 'general' right of appeal against an "EEA decision" which based any such right upon possession of an entitlement to EEA residence rights.

7. The Tribunal in Sala noted the two broad classes of case found within the EEA Regulations, i.e. those where there was an automatic right to the recognition of residence subject to certain criteria being satisfied, and those where the satisfaction of particular requirements only entitled a person to the exercise of discretion by the Secretary of State. It then explained that, given the legal difference between cases where there is an unequivocal right which the government could not refuse so long as the necessary conditions were established, as opposed to cases where there is merely an ability to apply for consideration via a favourable exercise of discretion, it was only in the former class of case that an entitlement, and thus a right of appeal, arose, following the refusal of an application for a residence card.

8. Accordingly the First-tier Tribunal erred in law in failing to appreciate that there was in truth no appealable decision under the EEA Regulations before it. I substitute a decision for its dismissal of the merits of the appeal before it, with a dismissal of the appeal for want of jurisdiction.

Decision:

The decision of the First-tier Tribunal contained a material error of law.
The appeal is dismissed.

Signed: Date: 4 January 2017
Deputy Upper Tribunal Judge Symes