Tribunal decisions

The decision

IAC-AH-sc-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: ia/28510/2015

THE IMMIGRATION ACTS

Heard at Field House
Determination & Reasons Promulgated
On 20th February 2017
On 02 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

mr Lateef Olanrewaju Onafuwa
(ANONYMITY DIRECTION not made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: No legal representation
For the Respondent: Mr K Norton, Senior HOPO

DETERMINATION AND REASONS

1. This is appeal against the determination of First-tier Tribunal Judge B. Lloyd, promulgated on 23rd February 2016, following a hearing at Newport on 10th February 2016. In the determination, the judge allowed the Appellant as an “extended family member” of an EEA national, Ms Noelia Ruiz, a Spanish national, with whom he had an Islamic marriage (“nikah”), following which a child, Noelia, was born.
The Appellant
2. The Appellant himself is a citizen of Nigeria, a male, and was born on 11th November 1987. He applied on 5th March 2015 for a residence card as confirmation of a right of residence under the provisions of the Immigration (European Economic Area) Regulations 2006. The application was considered by the Secretary of State under Regulation 8(5) and refused. The Secretary of State was concerned that the Appellant had failed to provide sufficient documentation to suggest that he was in a durable relationship with his sponsoring alleged partner. He had provided only one joint utility bill with both his and his Sponsor’s name on it and it was dated February 2015. The photographs which had been provided by the Appellant had shown some evidence that he was in a genuine, durable relationship but they appear to have been taken over a short period of time (paragraph 12).
The Judge’s Findings
3. The judge concluded that there was no manipulation as alleged, designed to bring about a sham marriage to support the Appellant’s application for residence as the extended family member of an EEA national, and allowed the appeal.
Grounds of Application
4. The grounds of application state that the judge ought not to have allowed the appeal outright, because the grant of a residence card was a “discretionary” matter and the judge really ought to have limited the matter back to the Secretary of State to make a final decision on it.
5. On 16th January 2017, permission to appeal was granted on the basis that the Appellant did not even have a right of appeal to begin with given the decision in Sala (EFMs: Right of Appeal) [2016] UKUT 411 (IAC) which confirmed that alleged extended family members have no right of appeal against the decision to refuse to issue documentation in connection with that status.
The Hearing
6. At the hearing before me on 20th February 2017, Mr Norton, appearing on behalf of the Respondent submitted that the Upper Tribunal’s decision in Sala [2016] UKUT 411 was determinative and there was no right of appeal before the judge below which could lead to any conclusion whatsoever.
7. For his part, Mr Onafuwa, representing himself, stated that Mr Norton had, prior to this hearing, explained matters to him, but he has been in this country since he was a teenager, completing classes ten and eleven, before going on to do A-levels, and he could not return to Nigeria. He submitted that his wife was due to attend today at this hearing but she fell very sick and could not come.
8. In reply, Mr Norton submitted that Sala, nonetheless, governs and there was no jurisdiction to hear this matter.
My Decision
9. The decision of the Tribunal in Sala (EFMs: Right of Appeal) [2016] UKUT 411 (IAC) is clearly determinative of the issues before this Tribunal. The First-tier Tribunal had no jurisdiction to hear the appeal. As Sala confirms there is no statutory right of appeal against the decision of the Secretary of State not to grant a residence card to a person claiming to be an extended family member. No deportation decision has been taken against the Appellant and the matters that he has raised today may well be appropriate for a later occasion. As far as this Tribunal is concerned, however, nothing falls to be determined as there is no right of appeal. The decision of the First-tier Tribunal involved the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that it falls to be set aside. I set aside the decision of the First-tier Tribunal and I dismiss the appeal for the reasons I have given.
Notice of Decision
10. The decision of the First-tier Tribunal involved the making of an error of law in that there was no jurisdiction to hear the appeal. I set aside the decision of the original judge. I remake the decision as follows. The appeal of the Secretary of State is allowed and the Appellant’s appeal is dismissed.
11. No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Juss 28th February 2017