Tribunal decisions

The decision

IAC-FH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/23504/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 1st March 2017
On 7th March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE GRIMES

Between

the Secretary of State for the Home Department
Appellant
and

mr Muhammad Sohail zubair
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr N Bramble, Home Office Presenting Officer
For the Respondent: Mr S Mustafa, Counsel instructed by Britain Solicitors

DECISION AND REASONS
1. Although the Secretary of State is the Appellant in these proceedings in the Upper Tribunal I refer to the parties as they were in the First-tier Tribunal.
2. The Appellant, a national of Pakistan, appealed to the First-tier Tribunal against a decision made by the Respondent on 16th June 2015 to refuse his application for a residence card as the extended family member of his uncle, an EEA national. First-tier Tribunal Judge Davey allowed the Appellant’s appeal, being satisfied that the Appellant had demonstrated that he is financially dependent upon the Sponsor and that the Appellant had therefore demonstrated that he meets the requirements of Regulation 8 of the Immigration (EEA) Regulations 2006 (as amended).
3. The Secretary of State appealed against that decision on two grounds. The first ground is that, following the decision of the Upper Tribunal in Sala (EFMs: Right of Appeal) [2016] UKUT 00411 (IAC), no right of appeal lay against the decision and therefore the First-tier Tribunal had no jurisdiction to determine the appeal. The second ground contends that the First-tier Tribunal erred in law by failing to consider the nature of the claimed level of dependency and as to whether the financial assistance provided by the Sponsor amounted to dependency rather than additional financial assistance.
4. At the hearing before me Mr Bramble indicated that he was not pursuing the second ground as he has now seen the Appellant’s bundle and is satisfied that the evidence before the First-tier Tribunal was sufficient to demonstrate the Appellant’s dependence upon the Sponsor.
5. Although Mr Mustafa initially submitted that he understood that the decision in Sala was being appealed to the Court of Appeal and that hearing was pending he accepted, after checking this matter, that he could not confirm that this was the case. Mr Mustafa submitted that Sala could be distinguished in this case. He submitted that Regulation 26(2A) in relation to unmarried partners could be distinguished from 26(3) which applies to other extended family members like the Appellant in this case.
6. However, I do not see any distinction in the decision in Sala in relation to those in a durable relationship and other extended family members. In particular I note paragraph 48 of Sala where the Tribunal said:-
“48. In our judgment, the natural and ordinary meaning of the definition of an EEA decision in reg 2(1), point (b) with which we are concerned in this appeal does not include a decision to refuse a residence card to an EFM under reg 17(4) or, by parity, to refuse a registration certificate to an EEA national EFM under reg 16(5). The consequence of that would be that the decision in the present case was not an 'EEA decision' and the appellant has no right of appeal. The question then is whether there is anything in the context or other material demonstrating that the natural and ordinary meaning was not intended.”
At paragraph 62 the Tribunal stated:-
“62. Thus far, therefore, we see nothing in reg 26(3) to displace the natural and ordinary meaning of the definition of an EEA decision set out in reg 2(1) point (b) that a decision under reg 17(4) to refuse to issue a residence card to an EFM does not give rise to a right of appeal.”
I further note the conclusion of the Tribunal at paragraph 84 where it said:-
“84. Although we have found the issue raised in this appeal a difficult one, we see no sustainable argument to deflect us from the natural meaning of the definition of an "EEA decision" in reg 2(1) point (b) that we identified earlier. A decision, taken by the Secretary of State in the exercise of her discretion, not to issue an EFM with a residence card under reg 17(4) is not a decision under the EEA Regulations 2006 which "concerns… a person's entitlement to be issued with…a residence card".
7. In my view it is clear from reading the decision in Sala that there is no distinction between those claiming to be in a durable relationship and other extended family members. Therefore in my view it is clear that the decision in Sala applies to the instant appeal.
8. In these circumstances applying the decision in Sala I am satisfied that the Appellant has no statutory right of appeal against the decision of the Secretary of State dated 16th June 2015. There was therefore no valid appeal before the First-tier Tribunal.
Notice of Decision
9. The appeal is dismissed for want of jurisdiction.
10. No anonymity direction is made.

Signed Date: 6 March 2017

Deputy Upper Tribunal Judge Grimes

TO THE RESPONDENT
FEE AWARD

The appeal is dismissed therefore there is no fee award.

Signed Date: 6 March 2017

Deputy Upper Tribunal Judge Grimes