Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/22426/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 14 March 2017
On 20th March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

Secretary of State for the Home Department
Appellant
and

HEKURAN ETHEMI
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr E Tufan, Senior Home Office Presenting Officer
For the Respondent: Ms K Sandhu, Legal Representative from Solacexis Solicitors

DECISION AND REASONS
1. I shall refer to the parties as they were before the First-tier Tribunal. Therefore, the Secretary of State is the Respondent and Mr Ethemi is once more the Appellant.
2. This is an appeal by the Respondent against the decision of First-tier Tribunal Judge Robison (the judge), promulgated on 22 July 2016, in which he allowed the Appellant’s appeal against the Respondent’s decision of 8 June 2015. That decision had been one to refuse to issue a residence card with reference to Regulations 8(5) and 17(4) of the Immigration (European Economic Area) Regulations 2006 (the Regulations). The application leading to that refusal, made on 29 January 2015, had been on the basis that the Appellant was in a durable relationship with an EEA national.

The judge’s decision
3. At paragraph 3 it is confirmed that the basis of the Appellant’s case was that he was an extended family member of the EEA national. Having heard and considered all of the evidence before him the judge concludes at paragraphs 36 and 37 that the Appellant and the EEA national were indeed in a durable relationship. At paragraph 38 the judge concludes: “the Appellant meets the requirement as a family member under the 2006 Regulations”. Under the sub-heading ‘Notice of Decision’ the judge states that, “the appeal under the EEA Regulations is allowed”.

The grounds of appeal and grant of permission
4. The Respondent sought permission to appeal on one ground only, namely that having found the Appellant to be in a durable relationship with the EEA national he should then have allowed the appeal only to the limited extent that the Respondent would then exercise her discretion under Regulation 17(4) of the Regulations. It is said that in allowing, or at least purporting to allow, the appeal outright the judge had materially erred in law. It is to be noted that the judge’s positive credibility findings on the nature of the relationship are not challenged.
5. Permission to appeal was granted by First-tier Tribunal Judge Shimmin on 9 January 2017. He granted permission in line with the Respondent’s grounds of appeal.

The hearing before me
6. At the outset of the hearing I raised the issue of the decision in Sala (EFMs: Right of Appeal) [2016] UKUT 00411 (IAC). It was my view that Sala applied in this case, given that the Appellant was claiming to be an extended family member of the EEA national. Both representatives agreed with this. Ms Sandhu initially suggested that there may not be an error because the judge’s decision was promulgated before Sala came out. However, as I pointed out to her at the hearing, this suggestion was misconceived because Sala was merely stating the true legal situation all along.

Decision on error of law
7. Although the jurisdictional point was not taken by the Respondent in her grounds of appeal, there was nonetheless clearly an error by the judge in this case, albeit one made prior to the decision in Sala. The Appellant did not have a right of appeal to the First-tier Tribunal and the judge proceeded to hear and decide the appeal in excess of his jurisdiction. This was an error of law.
8. I therefore set aside the judge’s decision.
9. I would add that if the judge had had jurisdiction, I would have concluded, albeit with some hesitation, that the judge did error by purporting to allow the appeal outright. Whilst it is not entirely clear whether this was his intention, the manner in which he has expressed his decision in paragraphs 36 and 37, and the statement under the Notice of Decision reads to me as though this was the effect of his conclusion. In light of the case-law on the issue of discretion under Regulation 17(4), the judge should not have sought to allow the appeal outright. Despite the assertion made in the Appellant’s rule 24 that the judge was entitled to exercise his own discretion under Regulation 17(4), he did not in fact set out a comprehensive assessment of all of the Appellant’s circumstances, nor might he have known what all of these were.

Remaking the decision
10. There was no suggestion by either representative that I should not proceed to re-make the decision. This I now do.
11. I decide that there is no valid appeal before me.
12. I would just add that it is open to the Appellant to make a fresh application under the EEA Regulations 2016.

Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I set aside the decision of the First-tier Tribunal.
I re-make the decision by determining that there was no valid appeal before the First-tier Tribunal and thus there is no valid appeal before the Upper Tribunal.
No anonymity direction is made.

Signed Date: 20 March 2017
Deputy Upper Tribunal Judge Norton-Taylor

TO THE RESPONDENT
FEE AWARD
There is no valid appeal and so I cannot make a fee award.

Signed Date: 20 March 2017
Deputy Upper Tribunal Judge Norton-Taylor