Tribunal decisions

The decision

IAC-HW-AM-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/25816/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 8th December 2016
On 9th December 2016

Before

UPPER TRIBUNAL JUDGE REEDS

Between

the secretary of state for the home department
Appellant
and

Melody frimpong
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:

For the Appellant: Mr Melvin, Senior Presenting Officer
For the Respondent: Mr A. Khusi, instructed by Bedford Solicitors

DECISION AND REASONS

1. The Secretary of State appeals with permission against the decision of the First-tier Tribunal (Judge Heatherington) who, in a determination promulgated on 26th July 2016, allowed her appeal against the decision of the Secretary of State to refuse her application for a residence card under the EEA Regulations. No request was made on behalf of the Appellant for anonymity nor are there any grounds that would support such a direction.
2. Whilst the Appellant is the Secretary of State, for ease of reference I intend to refer to the parties as they were before the First-tier Tribunal.
3. The Appellant's immigration history can be summarised as follows. The Appellant entered the United Kingdom illegally and on the 16th April 2011 she met her partner who is Dutch national. They began to live together in or about May 2012. A customary marriage took place on the 4th July 2015.
4. The present application was made on 19th February 2015 for a residence card as a family member of an EEA national who had been exercising treaty rights in the United Kingdom. The application was refused on 7th July 2015.
5. The Appellant appealed that decision and it came before the First-tier Tribunal on 24th June 2016. The conclusions are set out by the judge at paragraphs [5] to [31]. It was conceded before the Judge that the evidence provided of the customary marriage was insufficient to discharge the burden of proof that the marriage was valid in the Netherlands) see [9]). This had been one of the reasons the Secretary of State refused the application. However, the judge reached the conclusion that it had been demonstrated that this was a genuine relationship and was a durable relationship and having considered the evidence set out at paragraphs 27 -29 found it was a relationship which had existed for 4 years and that her partner was an EEA national exercising Treaty Rights. Thus the judge allowed the appeal.
6. The Secretary of State sought permission to appeal that decision and permission was granted by First-tier Tribunal (E.B Grant) on the 27th October 2016.
7. The matter comes before the Upper Tribunal to decide whether the First-tier Tribunal's decision involved the making of an error on a point of law. After having considered the Grounds of Appeal advanced on behalf of the Secretary of State and the submissions of the advocates, it is common ground between the advocates that in the light of the recent decision of Sala (EFMs: Right of Appeal) [2016] UKUT 00411 (IAC) the decision of the First-tier Tribunal did involve the making of an error on a point law. In the light of that decision, the First-tier Tribunal had no jurisdiction to hear the appeal as set out in the decision of Sala ( as cited) that there is no statutory appeal against the Secretary of State not to grant a residence card to a person claiming to be an Extended Family Member, which was the nature of the appeal before the First-tier Tribunal, it having been accepted that she was not a "Family Member" and the case being advanced on the basis that she was an "Extended Family Member". Therefore whilst the Secretary of State is correct in her grounds that this was a case where the Secretary of State had yet to exercise discretion conferred upon her under Regulation 17(4) of the EEA Regulations, even if that were not the case, the appellant had no statutory right of appeal in the light of the decision in Sala and there was no jurisdiction for the First-tier Tribunal to make any decision.
8. In those circumstances, it is open to the appellant to make a fresh application. Whilst Mr Melvin submitted that the hearing was void, it seems to me that the findings made by the First-tier Tribunal and sitting in a judicial capacity are capable of being taken account in any application as the judge gave reasons, which have not been challenged in these grounds, that there was sufficient evidence before the Tribunal to demonstrate that the parties were in a durable relationship and that the appellant's partner was exercising Treaty Rights.
Notice of Decision
9. The decision of the First-tier Tribunal involved the making of an error on a point of law. The decision is set aside. There was no valid appeal before the First-tier Tribunal.

No anonymity direction is made.

Signed Date 8/12/2016

Upper Tribunal Judge Reeds