IA/28345/2015

• Status of case: Unreported
• Hearing date: 2 Dec 2016
• Promulgation date: 5 Dec 2016
• Publication date: 18 Nov 2020
• Last updated on: 18 Nov 2020

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/28345/2015


THE IMMIGRATION ACTS


Heard at Field House
Decision and Reasons Promulgated
On 2 December 2016
On 5 December 2016



Before

UPPER TRIBUNAL JUDGE KEKI?


Between

IBRAHIM NAYAN
(anonymity order not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Representation:
For the Appellant: Mr A Agbim, Solicitor
For the Respondent: Mr T Melvin, Senior Home Office Presenting Officer


DETERMINATION AND REASONS

1. This appeal is brought by the Secretary of State however for convenience I shall refer to the parties as they were before the First-tier Tribunal.

2. The appellant is a national of Ghana. He entered the UK in 2003 as a visitor and overstayed. In March 2012, March 2014 and November 2014 he made applications for a residence card as the unmarried partner of an EEA national. All have been refused and the most recent refusal gave rise to these proceedings.

3. The appeal was allowed by First-tier Tribunal Judge S Taylor by way of a determination promulgated on 5 July 2016. There was no appearance on behalf of the respondent at the hearing.

4. Permission to appeal was granted by First-tier Tribunal Judge Chohan on 7 November 2016. Whilst he considered that the judge arguably erred in allowing the appeal outright instead of remitting it to the respondent to consider her discretion, he observed that the issue was academic following the case of Sala (EFMs: right of appeal) [2016] UKUT 00411 (IAC) where it had held by the Tribunal that there was no statutory right of appeal against the decision of the Secretary of State to refuse to issue a residence card to an extended family member of an EEA national.

5. At the hearing before me Mr Melvin sought permission to rely on the judgment in Sala. Mr Agbim did not object and I granted the application.

6. Mr Melvin submitted that following the decision in Sala, there was no right of appeal against a decision taken under reg. 8(5) and that there had therefore been nothing before the Tribunal to decide. It followed that the determination was void.

7. Mr Agbim submitted that Sala had been promulgated after Judge Taylor's determination and did not address the issue of discretion. He disagreed with the proposition that there was no right of appeal.

8. Mr Melvin briefly responded. He submitted that it was clear that the judgment impacted on all decided cases involving extended family members. There had been no appeal before the Tribunal to decide and the determination was void.

9. At the conclusion of the hearing I indicated that I concurred with the respondent's submissions and that my determination would follow.

10. As the unmarried partner of the sponsor, the appellant is an extended family member. He therefore falls within the category of persons that the Tribunal dealt with in Sala. On the reasoning of that appeal, the First-tier Tribunal had no jurisdiction to hear the appeal against the refusal to document him as the EFM of the sponsor. It does not matter that Sala was promulgated after the appellant's determination as the judgment sets out the law as it should have been applied regardless of when the appeal was heard. It follows that the determination is rendered void.




11. Decision

12. There was no appeal before the First-tier Tribunal to determine. The determination is set aside and the appellant's appeal is dismissed for want of jurisdiction.


Signed




Upper Tribunal Judge

Date: 2 December 2016