IA/27427/2015

• Status of case: Unreported
• Hearing date: 22 Mar 2017
• Promulgation date: 13 Apr 2017
• Publication date: 19 May 2022
• Last updated on: 19 May 2022

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number IA/27427/2015

THE IMMIGRATION ACTS

Heard at Centre City Tower, Birmingham Decision and Reasons Promulgated
On 22nd March 2017 On 13th April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE PARKES

Between

NAZAR MHAMED SAFI MOTEGERIA MUDDSAR
(ANONYMITY DIRECTION NOT MADE)
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Ms Alfred (Counsel, instructed by Bhavsar Patel Solicitors)
For the Respondent: Mrs R Pitterson (Home Office Presenting Officer)

DECISION AND REASONS

1. The Appellant applied for a residence card as an extended family member (EFM) of an EEA national in the UK exercising treaty rights. The application was refused for the reasons given in the Refusal Letter of the 16th of July 2015. The appeal was heard by First-tier Tribunal Judge Birrell at Stoke on the 28th of June 2016. The appeal was allowed outright for the reasons given in the decision promulgated on the 5th of July 2016.

2. The Secretary of State sought permission to appeal to the Upper Tribunal in grounds of the 16th of July 2016. This was on the basis that where an EFM appeal was allowed there was still a discretion whether to grant a residence card and the case had to be returned to the Secretary of State for consideration of the discretion. Permission was granted by First-tier Tribunal Judge Pedro on the 24th of October 2016 who also raised the issue of whether there had been a right of appeal following the decision in Sala (EFMs: Right of Appeal) [2014] UKUT 411 (IAC).

3. At the hearing it was accepted that the decision had been overtaken by the case of Sala and I was urged by Miss Alfred to preserve findings that were made in the Appellant's favour. I indicated that in my view that could not be done, the error lay in the Judge hearing and determining an appeal in which there was no right of appeal. Accordingly the Judge had no jurisdiction to entertain the case and no power to consider evidence or make findings. It follows that if the First-tier Tribunal had no jurisdiction then the Upper Tribunal has none other than to declare what the error is and act accordingly. Even if there had been a right of appeal the Judge erred in allowing the appeal outright and my decision would have been that the Secretary of State would have to make a lawful decision applying Greenwood No 2

4. For the reasons given and applying the case of Sala to this case the Judge erred in considering the appeal and could only have found that the appeal was not valid.

CONCLUSIONS

The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.

I set aside the decision.

I re-make the decision in the appeal finding that the First-tier Tribunal did not have jurisdiction to consider the Appellant's appeal as there was no right of appeal being an EFM application.

Anonymity

The First-tier Tribunal did not make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 and I make no order.

Fee Award

In finding that there was no jurisdiction to consider the appeal I make no fee award.

Signed:

Deputy Judge of the Upper Tribunal (IAC) Parkes

Dated: 22nd March 2017