Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/28525/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20 March 2017
On 21 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE ESHUN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

MR JALNA DARSHANA SILVA MANIKKU BADATURGE
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:

For the Appellant: Mr T Melvin, Home Office Presenting Officer
For the Respondent: Mr D Bazani, Counsel

DECISION AND REASONS

1. The Secretary of State has been granted permission to appeal the determination of First-tier Tribunal Judge Zahed in which he allowed the appeal of the respondent against refusal of his application for a residence card as confirmation of a right to reside in the United Kingdom as an extended family member of a European Economic Area (EEA) national who was exercising treaty rights in the UK.

2. The Secretary of State argued that:

(1) following Sala [2016] UKUT 411 (IAC) the respondent had no right of appeal against the Secretary of State’s decision; and

(2) that in any event the judge failed to make any finding as to a material issue affecting the authenticity of documents submitted by the respondent.

3. Mr Melvin relied on the grounds. He asserted that as a preliminary matter, following the recent conclusion of the Upper Tribunal in Sala, in fact no right of appeal lay against the Secretary of State’s decision and that the judge’s decision was a nullity. He acknowledged that the reported decision was not starred and that it could not have been anticipated before the First-tier Tribunal hearing, but the reasoning (which for avoidance of doubt the Secretary of State accepts and is not challenging) is sufficiently clear and persuasive that in the interests of consistency of treatment of like cases, it should stand as declaratory of the law.

4. Mr Bazani relied on the Practice Directions of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal issued by the Senior President to Tribunals dated 10 February 2010. He relied on paragraph 12 headed Starred and Country Guidance Determinations:

12.1 Reported determinations of the Tribunal, the AIT and the IAT which are “starred” shall be treated by the Tribunal as authoritative in respect of the matter to which the “starring” relates, unless inconsistent with other authority that is binding on the Tribunal.

12.2 A reported determination of the Tribunal, the AIT or the IAT bearing the letters “CG” shall be treated as an authoritative finding on the country guidance issue identified in the determination, based upon the evidence before the members of the Tribunal, the AIT or the IAT that determine the appeal. As a result, unless it has been expressly superseded or replaced by any later “CG” determination, or is inconsistent with other authority that is binding on the Tribunal, such a country guidance case is authoritative in any subsequent appeal …

5. Accordingly Mr Bazani argued that the Tribunal was not bound by the reported decision in Sala even though it had been heard and determined by the Vice President and an Upper Tribunal Judge.

6. Following consideration of all the arguments, I found that the reported decision of Sala was very persuasive in its decision. I am therefore applying it to this case.

7. I find that 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. Accordingly, I have no jurisdiction in this matter.

8. Mr. Bazini, in any event, asked me to made a finding in respect of the Secretary of State’s second ground of appeal. I found that this ground disclosed no error of law in the judge’s decision. The judge made very clear findings of fact on all the material issues that were before him. He found that the respondent has been financially dependent on the EEA sponsor before he came to the United Kingdom and was living with the EEA sponsor in the same household in the UK. I found that the judge’s conclusions were based on evidence that he found credible. His conclusions were perfectly sustainable.

9. My principal conclusion is that based on Sala, that the judge’s determination was a nullity.

No anonymity direction is made.

Signed Date: 18 April 2017

Deputy Upper Tribunal Judge Eshun