Tribunal decisions

The decision

IAC-AH-CO-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/27712/2014
IA/27724/2014
IA/27728/2014
ia/27734/2014

THE IMMIGRATION ACTS

Heard at Newport
Decision & Reasons Promulgated
On 22ndFebruary 2017
On 24th February 2017

Before

Upper Tribunal Judge Grubb
Upper Tribunal Judge Chalkley

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

NASSER [C]
SADIA [Z]
[F A]
[Z A]
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr R Ahmed, of Counsel, instructed by Fawad Law Associates
For the Respondent: Mr McVeety, a Senior Home Office Presenting Officer

DECISION AND REASONS
1. In this appeal, the Secretary of State for the Home Department is the appellant. To avoid confusion, I shall refer to her as being, "the claimant". The respondents are a family and all are citizens of Pakistan.
2. The first named respondent is the husband of the second named respondent and they are the parents of the third and fourth named respondents. The respondents'' sponsor is Shameen Sharif, an Irish National who was married to the brother of the first named respondent ("the sponsor"). The respondents all claimed to be to be supported by the sponsor before they came to the United Kingdom and sought residence cards as extended family members of an EEA national under the Immigration (European Economic Area) Regulations 2006 ("the Regulations").
3. On 17th June 2014, the claimant concluded that there was insufficient evidence before her to demonstrate that the respondents were being supported by the sponsor before coming to the United Kingdom.
4. The respondents appealed and their appeals was heard by First-tier Tribunal Judge Fowell on 13th July 2015. Judge Fowell found that the respondents and sponsor did meet all the requirements of the Regulations and was satisfied that the sponsor was supporting the respondents and was an EEA national exercising treaty rights in the United Kingdom. She purported to allow the respondents 'appeal.
5. The claimant sought to challenge that decision, asserting that the judge erred in law by allowing the appeal outright, rather than allowing it to the extent that it still remained for the clamant to consider how she should exercise her discretion under Regulation 17(4) of the Regulations.
6. Both Mr McVeety and Mr Ahmed agreed that there was no material error of law, the Upper Tribunal having since the hearing of the respondents' appeals, concluded that the decision by the Secretary of State in the exercise of her discretion not to issue an extended family member with a residence card under Regulation 17(4), is not a decision which concerns, ... a person's entitlement to be issued with ..., a residence card and is not, therefore, appealable to the First-tier Tribunal (Sala (EFMs: right of appeal) [2016] UKUT 00411 (IAC)). Mr Ahmed said, however that he relied on the judge's findings. We believe that may be difficult, given that there was no valid appeal for the judge to hear.
7. The respondents never had a right of appeal. The First-tier Tribunal had no jurisdiction to hear the appeal and erred in law in doing so. We set aside the decision of the First-tier Tribunal to allow the appeal and substitute a decision that there was no valid appeal before the First-tier Tribunal.
No anonymity direction is made.

Richard Chalkley
A Judge of the Upper Tribunal