Tribunal decisions

The decision

IAC-AH-SC-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/22666/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 30th January 2017
On 8th February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

mr Mohamed Mubarak Mohammed Rafeek
(ANONYMITY DIRECTION not made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr N Paramjorthy (Counsel)
For the Respondent: Mr I Jarvis (Senior HOPO)

DECISION AND REASONS

1. The Appellant is a male, a citizen of Sri Lanka, who was born on 25th March 1989. He appealed to the First-tier Tribunal against the decision of the Respondent, taken on 2nd June 2015, to reject his application for a residence card under the Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations"). The appeal was brought under Regulation 26 of the EEA Regulations.
2. The Appellant's appeal was heard by First-tier Tribunal Judge Shergill at Birmingham on 8th March 2016. It was promulgated on 18th March 2016. At paragraphs 20 to 29 of the determination, the judge determined the Appellant's claim to dependency and rejected it giving reasons for doing so. He concluded that the appeal was dismissed by reference to the EEA Regulations.
3. In the Grounds of Appeal dated 1st April 2016, Mr Paramjorthy appealed to the Upper Tribunal arguing that the judge made material mistakes as to fact and listed the reasons for so stating.
4. On 13th October 2016, permission to appeal was granted on the basis that the judge had not taken into account the documentary evidence which bore relevance to the judge's resolution of the capacity of the Appellant and the Sponsor to give truthful evidence.
5. On 21st October 2016, a Rule 24 response was entered by the Respondent Secretary of State to the effect that there is a preliminary point in this appeal which concerns the existence of an appeal in relation to an extended family member following the decision of the Upper Tribunal in Sala (EFMs: Right of Appeal: Albania) [2016] UKUT 411, which determined that the Appellant does not have a 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.
6. At the hearing before me on 30th January 2017, Mr Paramjorthy, having discussed this matter in relation to the availability of a right of appeal before the Tribunal with Mr Jarvis, submitted that it did very much appear to be the case that there was no jurisdiction for the Tribunal to determine this appeal in the first instance. He submitted that it was unfortunate that the appeal had been listed, and even more unfortunate that it had been in the pipeline waiting to be heard ever since 13th October 2016 when permission to appeal was granted. He asked that there should be a decision from this Tribunal there is no jurisdiction for it to determine this appeal so that the Appellant can make a judicial review application.
7. For his part, Mr Jarvis submitted that he would have to agree, having discussed this matter also with Mr Paramjorthy, that this was the right course of action. As a consequence of Sala there was no right of appeal and the Tribunal had no jurisdiction to determine this matter.
8. In reply, Mr Paramjorthy submitted that the only other outstanding matter was that the decision of this Tribunal should be sent directly to the Appellant at 5 Trafalgar Mews, Coventry, CV6 5DQ, as he was having recourse to the direct access procedures for litigating this matter before the courts.
9. It is plain that Rule 22 of the 2014 FtT (IAC) Procedure Rules identifies the circumstances in which the Tribunal may not accept a Notice of Appeal. Rule 22(2)(a) provides that the Tribunal may not accept the Notice of Appeal where there is no appealable decision. For he reasons given in Sala, there is no appealable decision in this case.
10. Where an appeal has been listed in error for a hearing then it is clear from Article 3(4) of the Senior President of Tribunals Practice Statement of the Immigration and Asylum Chamber of the First-tier and Upper Tribunal, that the judge shall issue a determination:
"3.4. The fact that a hearing may have been given to the parties does not mean that the appeal must treated as valid. Accordingly, if at the hearing (including a CMR hearing) it transpires that the Notice of Appeal does not relate to a decision against which there is, in the circumstances, an exercisable right of appeal, the Tribunal must so find; but it would do so in the form of a determination, rather than by means of a notice under First-tier Rule 22".
11. For the reasons given in Sala there is no jurisdiction to determine this appeal. As there is no jurisdiction to determine this appeal there can be no findings of fact or a decision. Insofar as Article 33 (procedural safeguards) of the Citizens' Directive (2004/38/EC) is concerned, it is plain that a judicial review provides an effective remedy in terms of Article 33 (and this was made clear at paragraph 23 of Sala). Accordingly, it is open to the Appellant in this matter to bring a judicial review claim. This Tribunal has no jurisdiction to hear this appeal.
Notice of Decision

The appeal is dismissed.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Juss 7th February 2017