IA/26791/2015

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The decision



Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/26791/2015


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 23rd November 2016
On 24th November 2016



Before

UPPER TRIBUNAL JUDGE MARTIN


Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

BENJAMIN ABIODUN KAYODE
(ANONYMITY DIRECTION NOT MADE)
Respondent


Representation:
For the Appellant: Mr P Singh (Senior Home Office Presenting Officer)
For the Respondent: Mr S M Khan (SMK Solicitors)


NOTICE OF DECISION
1. This is an appeal to the Upper Tribunal by the Secretary of State in relation to a Decision of the First-tier Tribunal, Judge Ohbi, promulgated on 1st March 2016 by which she allowed the Appellant's appeal against the Secretary of State's decision to refuse to issue him with a residence card as the family member (spouse) of an EEA national.
2. The Appellant is a national of Nigeria married to an EEA national. The Secretary of State refused the application believing this to be a sham marriage.
3. Judge Obhi heard evidence from the Appellant and from his wife. The Judge considered in some detail the question of the genuineness of the marriage and her deliberations with regard to that start at paragraph 27 and conclude at paragraph 32 where she finds it to be a genuine marriage. She then allowed the appeal.
4. The Secretary of State applied for permission to appeal and in fact it was I who granted permission. The "killer" point on Secretary of State's behalf is that the appellant had not produced a valid passport and in accordance with Regulation 26 of the EEA regulations therefore had no right of appeal. That was the basis upon which I granted permission to appeal.
5. Mr Khan sought to argue that Regulation 26 is discretionary because it states that a person "may" not appeal under the Regulations unless he produces a passport. I disagree with his submission that this creates a discretion upon the Secretary of State whether or not to confer a right of appeal. The wording is quite clear that a person has no right of appeal unless they produce a passport. Thus the first-tier Tribunal made a material error of law in hearing and deciding the appeal at all when it had no jurisdiction to do so. Accordingly, the Decision and Reasons must be set aside in its entirety and the appeal dismissed for want of jurisdiction.
6. Mr Khan requested that I should indicate that there is no error in the actual findings made by the Judge in relation to the nature of the marriage. Mr Singh had no objection to me making that indication and I do so.

Notice of Decision
The Secretary of State's appeal to the Upper Tribunal is allowed and in re-deciding the appeal it is dismissed for want of jurisdiction.
No anonymity direction is made.


Signed Date 23rd November 2016

Upper Tribunal Judge Martin