Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/21336/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6th April 2017
On 19th April 2017

Before

DEPUTY upper tribunal judge ROBERTS

Between

SAHAYAVATHANI PONNUCHAMY
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No representation
For the Respondent: Mr E Tufan, Senior Presenting Officer

DECISION AND REASONS
1. The Appellant, a citizen of Sri Lanka, appeals with permission to the Upper Tribunal against a decision of the First-tier Tribunal (Judge Seelhoff) promulgated on 10th October 2016, finding the Appellant had no valid appeal against the Respondent’s refusal to grant her a residence permit as the extended family member (EFM) of her uncle, a Dutch national. The refusal was made by the Respondent pursuant to Regulation 8 of the 2006 EEA Regulations.

Background
2. The Appellant arrived in the UK in January 2010. Her claim has always been that her paternal uncle who is a Dutch national has supported her (and other family members) over a period of time.
3. When she arrived in the UK her uncle met her here, helped her get settled but then returned to the Netherlands. In August 2014 her uncle returned to the UK apparently exercising treaty rights and since that time he and the Appellant have lived in the same household.
4. The Respondent was not satisfied that the Appellant had shown dependency within the EEA Regulations and therefore refused the Appellant’s application by a decision letter dated 22nd May 2015. The decision letter informed the Appellant there was a right of appeal against the decision and accordingly she appealed to the First-tier Tribunal.
FtT Hearing
5. The hearing came before the First-tier Tribunal on 21st September 2016. Shortly before the hearing, there had been published and reported, the Upper Tribunal decision in Sala v Secretary of State for the Home Department [2016] UKUT 00411 (IAC). This decision determined that a discretionary decision by the Secretary of State not to issue a residence permit to an EFM was not a decision enjoying appeal rights under Regulation 17(4) and 26 of the 2006 EEA Regulations. The Upper Tribunal reinforced the position by saying that the courts had for some years mistakenly understood there to be a statutory right of appeal in the case of EFMs but “such error did not establish a right of appeal”.
6. In the present case, the judge decided that the FtT had no jurisdiction to hear the appeal and that there was no valid appeal before it. He recorded that both the Appellant’s representative and the Respondent’s representative made submissions that Sala was wrong. No doubt this line being taken by the Respondent put the judge in a difficult position. He informed the parties that given that the tribunal in Sala recognised that their findings were likely to be contentious, he would hear the case substantively but make a decision that there was no valid appeal “so as to allow the Appellants (sic) an effective onward appeal in the event that the decision in Sala does not stand.” [8]
7. The Appellant sought and was granted permission to appeal to the Upper Tribunal. The grounds of application say that the judge was in error
by finding in the alternative if there was no jurisdiction to hear the appeal; and
by factually making errors in the substantive findings

UT Hearing
8. Before me Mr Tufan appeared for the Respondent. No-one appeared for the Appellant. I was satisfied that both the Appellant and her named representative had been served with a correct notice of the hearing. In the absence of any explanation for the Appellant’s non attendance I found no reason not to proceed with the matter forthwith. I heard submissions from Mr Tufan.
9. His submissions referred to the grant of permission and referred to the Appellant’s grounds. As I understood his submissions, he said it was clear from the decision that the judge recognised he had no jurisdiction to hear the appeal. He should have stopped at that point. He was wrong to go on and make alternative findings. If there is no valid appeal then the alternative findings simply fall away.
Consideration
10. I find I am essentially in agreement with Mr Tufan’s submissions. Had the judge simply stopped at saying in his decision that there was no valid appeal then there would be no issue before me. However he did not and I find he was wrong to go on and substantively consider the decision in the alternative. It is not in dispute that the Appellant in this case was applying for a residence permit as an EFM. Sala gives clear guidance that such applicants do not enjoy appeal rights and the FtT was bound to follow that guidance.
11. I find therefore the judge was in error to consider the matter substantively and set aside that part of the decision dealing with the substantive consideration. Thus I remake the decision by substituting the following decision concerning the Respondent’s refusal to grant the Appellant a residence permit as an EFM.

Notice of Decision
12. No valid appeal.
13. No anonymity direction is made.

Signed C E Roberts Date 14 April 2017

Deputy Upper Tribunal Judge Roberts

TO THE RESPONDENT
FEE AWARD

No fee award is payable because there is no valid decision.

Signed C E Roberts Date 14 April 2017

Deputy Upper Tribunal Judge Roberts