Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/22411/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 16 November 2016
On 23 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE SHERIDAN

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

AKASH SAINI
(ANONYMITY DIRECTION NOT made)
Respondent

Representation
For the Appellant: Mr P Singh, Home Office Presenting Officer
For the Respondent: Mr R Ahmed, Counsel instructed by Expert Law Solicitors

DECISION AND REASONS
1. The respondent is a citizen of India born on 6 March 1990 who has been in the UK since 2011. On 15 November 2014 he married a woman whose father is a Polish national. On 16 December 2014 he applied for a residence card under the Immigration (EEA) Regulations 2006 ("the 2006 Regulations") as a family member of an EEA national (his father in law).
2. The Secretary of State rejected the application on the basis that the respondent's marriage was one of convenience that was entered into for the purpose of remaining in the UK and therefore he was not a family member under Regulation 7 of the 2006 Regulations. The respondent appealed and his appeal was heard by First-tier Tribunal Judge Hussain.
3. Judge Hussain found that it was a misnomer for the Secretary of State to decide the application under Regulation 7, which concerns "family members", as the respondent's case was that he was an "extended family member" of an EEA national under Regulation 8. The judge then proceeded to consider whether the marriage between the respondent and his wife was one of convenience and concluded that it was not. Having reached this finding, the judge allowed the appeal.
4. The grounds of appeal argue that the judge erred in law because once he found the respondent was not in a marriage of convenience he was required to consider whether the respondent met the definition of an extended family member under Regulation 8(2) of the 2006 Regulations.
5. Before me, Mr Singh argued, firstly, that following Sala (EFMs: Right of Appeal) 2016 UKUT 00411 (IAC) I should find an error of law on the ground that there is no statutory right of appeal in this case. Secondly, he argued that the judge had failed to consider the factors in Regulation 8(2) of the 2006 Regulations that are relevant to the question of whether the respondent is an extended family member. Thirdly, he argued that the judge was not, in any event, entitled to allow the appeal under the 2006 Regulations and could only have found that the decision was not in accordance with law as the Secretary of State had yet to exercise her discretion.
6. Mr Ahmed argued that that as the Secretary of State's refusal decision was solely concerned with the question of whether there was a marriage of convenience there was no error in the judge's approach which was to deal with that issue. He noted that the decision predates Sala and submitted that the factual findings should stand in order that the Secretary of State should consider its discretion under Regulation 8 on the basis of those findings.
Consideration
7. Although there has been a longstanding assumption that there is a right of appeal under Regulation 26 of the 2006 Regulations against a decision of the Secretary of State to not grant a residence card under Regulation 17(4) of the 2006 Regulations to a person claiming to be an extended family member of an EEA national, the Upper Tribunal panel in Sala has made clear that there is no such right. Accordingly, for the reasons given in Sala, with which I agree, the respondent did not have a right of appeal against the Secretary of State's decision and the First-tier Tribunal did not have jurisdiction to hear the appeal.
8. The judge's decision was made before Sala was promulgated and therefore the judge cannot be faulted for proceeding on the basis that there was jurisdiction to hear the appeal. However, for the reasons given in Sala, there was no jurisdiction and it was an error of law to proceed on the basis that there was.
9. This finding is sufficient to dispose of the matter. However, for completeness, and in any event, I find that the judge made two further errors of law.
10. Regulation 8 sets out a number of conditions that a person must satisfy to meet the definition of being an "extended family member". The judge failed to consider whether any of these applied to the respondent and instead allowed the appeal on the basis that the respondent is in a genuine marriage with the daughter of an EEA national. This is a clear error of law as the respondent's marriage cannot, of itself, bring him within any of the conditions specified in Regulation 8.
11. A further error arises from the judge allowing the appeal when the issuing of a residence card to an extended family member is at the Secretary of State's discretion. If the judge was satisfied the respondent was an extended family member then (leaving aside the jurisdiction point) the correct course of action was to allow the appeal as not being in accordance with the law, leaving the matter of how to exercise that discretion to the Secretary of State. See Ihemedu (OFMs - meaning) Nigeria [20111] UKUT 340 (IAC).

Decision
12. The First-Tier Tribunal did not have jurisdiction to hear the appeal.
13. Given the absence of jurisdiction, it was an error of law to hear the appeal and the decision of the First-tier Tribunal is set aside.
14. I remake the decision of the First-tier Tribunal by dismissing the respondent's appeal as he does not have a statutory right of appeal against the Secretary of State's decision to not grant him a residence card as an extended family member of an EEA national.

Signed

Deputy Upper Tribunal Judge Sheridan

Dated: 22 November 2016