IA/23621/2015

• Status of case: Unreported
• Hearing date: 21 Feb 2017
• Promulgation date: 2 Mar 2017
• Publication date: 13 Jan 2022
• Last updated on: 13 Jan 2022

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/23621/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 21 February 2017
On 2 March 2017


Before

DEPUTY UPPER TRIBUNAL JUDGE A M BLACK

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MD AFZAL HUSSAN
(ANONYMITY DIRECTION NOT MADE)
Respondent



Representation:

For the Respondent: Ms Taiwo, legal representative
For the Appellant: Mr Bramble, Home Office Presenting Officer


DECISION AND REASONS

1. The Secretary of State pursues this appeal. The respondent was the appellant in the First–tier Tribunal. Nonetheless, for the sake of convenience, I henceforth refer to the appellant in the First-tier Tribunal as the appellant in these proceedings, albeit it is the Secretary of State who pursues this appeal in the Upper Tribunal.

2. The appellant is a citizen of Bangladesh. He appealed against the decision of the Secretary of State to refuse to issue a residence card on the grounds of his relationship with a citizen of the European Union. The respondent was not satisfied the appellant met the requirements of Regulation 8 of the Immigration (European Economic Area) Regulations 2006.

3. In a decision promulgated on 16 September 2016 First-tier Tribunal Judge Herbert OBE (“the FTTJ”) allowed the appeal on the grounds the appellant was in a durable relationship. He did so to the limited extent that “this matter be remitted back to the respondent in order that they can issue a residence card to the appellant under Regulation 17(1) of the Immigration (EEA) Regulations 2006”.

4. The Secretary of State sought permission to appeal and this was granted on the ground it was arguable that the decision was contrary to Sala (EFMs: Right of Appeal) [2016] UKUT 411 (IAC) . Hence the matter came before me.

5. I indicated at the outset of the hearing my preliminary view that there was an error of law as identified in the permission to appeal. Ms Taiwo accepted that her client was in a difficult position, being bound by the decision in Sala.

Discussion

6. Regulation 8(1) defines “extended family member” as a “person who is not a family member of an EEA national under regulation 7(1)(a), (b) or (c) and who satisfies the conditions in paragraph (2), (3), (4) or (5)”. Regulation 8(5) provides that “A person satisfies the condition in this paragraph if the person is the partner of an EEA national (other than a civil partner) and can prove to the decision maker that he is in a durable relationship with the EEA national.”

7. In Sala it was held that there is no 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. Thus the FTTJ had no jurisdiction to hear the appeal and he erred in law in so doing. His decision must be set aside.

8. The FTTJ did not make an anonymity direction and such a direction is not required now.

Decision

9. The FTTJ’s decision is set aside. There is no jurisdiction to entertain the appeal and I do not therefore remake the decision which remains set aside.


A M Black
Signed:
Deputy Upper Tribunal Judge A M Black Dated: 27 February 2017


Fee Award

The decision having been set aside, the fee award made by the FTTJ is also set aside, there being no jurisdiction to hear the appeal.


A M Black
Signed:
Deputy Upper Tribunal Judge A M Black Dated: 27 February 2017