Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/24225/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 14 September 2016
On 24 October 2016

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

Secretary of State for the Home Department
Appellant
and

MR SHAHRUKH KHAN
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:

For the Appellant: Mr T Melvin, Home Office Presenting Officer
For the Respondent: Ms S Haji of Counsel instructed by Lincolns Solicitors

DECISION AND REASONS
1. This is the appeal of the Secretary of State against the decision of First-tier Tribunal Judge Thanki promulgated on 29 February 2016 in which the judge allowed the appeal of Mr Shahrukh Khan to whom I refer to as the appellant. That appeal was against a decision by the Secretary of State that the applicant was not entitled to a residence card as confirmation of his right to reside as the extended family member of his paternal uncle, that being a decision made pursuant to Regulations 8 and 17 of the Immigration (European Economic Area) Regulations 2006. The judge found materially that the appellant is a dependant of an EEA national exercising treaty rights in the United Kingdom, that he satisfied the requirements of Regulation 8 and he therefore allowed the appeal remitting it to the respondent to consider the case again under Regulation 17(4).
2. The Secretary of State appealed against that decision on the grounds that I summarise as follows in that the judge firstly failed to address himself properly according to the decision in Dauhoo (EEA Regulations - reg8(2)) [2012] UKUT 79 (IAC), in that the judge failed to identify whether there was prior dependency or prior membership of a household and that the judge's findings were not sustainable insofar as they related to findings of present dependency.
3. A separate issue arises in this case as a result of a decision which I brought to the attention of the parties, that being Sala (EFMs: Right of Appeal) [2016] UKUT 00411 (IAC), a decision of the Vice President and Upper Tribunal Judge Grubb. In summary, the Upper Tribunal concluded that panel there is no right of appeal against a decision to refuse a residence card as an extended family member owing to the proper interpretation of Regulation 2 of the EEA Regulations in which an EEA decision is defined.
4. Ms Haji for the appellant submitted that the decision in could be distinguished on the basis first that this is not a case in which discretion had in fact been exercised, the Secretary of State concluding that there was no entitlement under Regulation 8 in the first place. Second, that it could be distinguished on the basis that this was not about a durable relationship and thus this was not the type of appeal to which Regulation 26(2)(a) related. It was in fact an appeal to which Regulation 26(3) applied. Mr Melvin's submissions were that I should follow Sala.
5. In addition to these submissions I heard submissions as to whether, assuming that the First-tier Tribunal did have jurisdiction, there was an error of law and I will turn to those submissions in due course.
6. Having paid close attention to the decision in Sala I consider that it cannot be distinguished on the basis submitted by Ms Haji. Whilst I note in particular the submissions made by the parties in that case, and while it is unusual that the Secretary of State in Sala did not assert the opinion that there was a right of appeal, I do not consider that the distinctions can be made out. The ratio is Sala applies to all those who fall within Regulation 8 (as this appellant does). In particular I do not consider that the reasoning of the Tribunal at paragraphs 46 to 48 in particular can be distinguished on this issue and first I come to the conclusion for the reasons given by the Tribunal in Sala that there is no right of appeal in this case and that accordingly the First-tier Tribunal had no jurisdiction to determine the appeal
7. If however I am wrong about that I do consider that Judge Thanki's decision does involve the making of an error of law. It is evident from the decision in Dauhoo that the first question that had to be considered is whether there was prior membership of a household or prior dependency on the part of the appellant before he came to the United Kingdom. Ms Haji accepted that the trigger was the appellant coming to the United Kingdom and not the EEA national. She also accepted that the judge found that there had been no prior membership of the household.
8. The question then arises is whether the judge properly found that there was prior dependency. The evidence is somewhat thin regarding the prior dependency. The judge records at paragraph [59] that on 1 October 2007 prior to the appellant entering the United Kingdom on 13 October 2007, there had been a money transfer to the appellant in the sum of Euros 365. There is, as Ms Haji accepted no evidence of any other transfers prior to 1 October. It would therefore follow the only basis on which the judge could have found prior dependency was on the basis of that one payment.
9. There is however, contrary to the decisions in Moneke (EEA - OFMs - assessment of evidence) Nigeria [2011] UKUT 00430 (IAC) no analysis of whether that was a dependency of necessity. There is no assessment of what the essential needs were and in that context it is difficult to discern if the judge has indeed found that there was prior dependency. Whilst it is arguable that the judge must of necessity have made that finding before proceeding to go any further, there is insufficient reasoning in respect of that it being entirely unclear that the judge was aware that it was necessary to make a finding on prior dependency as a preliminary matter before going on to consider the other matters on which he does make findings that of his current membership of household and current dependency.
10. For these reasons, were I to find that there is jurisdiction in this case, I am satisfied that the decision of the First-tier Tribunal did involve the making of an error of law and on that basis it would require to be set aside and remade on the issue of whether there was dependency of the appellant on his uncle prior to the appellant's arrival in the United Kingdom, and as to his current status in terms of household and/or dependency.
11. For these reasons I find that there was no jurisdiction and I order accordingly.

SUMMARY OF CONCLUSIONS
1. The appellant has no right of appeal. The First-tier Tribunal had no jurisdiction to hear the appeal. It erred in law in doing so.
2. I set aside its decision to allow the appeal and substitute a decision that there was not a valid appeal before the First-tier Tribunal.

Signed Date: 19 September 2016

Upper Tribunal Judge Rintoul