Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/28978/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17th January 2017
On 19th January 2017

Before

UPPER TRIBUNAL JUDGE LINDSLEY

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

BILAL JABARKHEL
(ANONYMITY ORDER NOT MADE)

Respondent
Representation:

For the Appellant: Mr A Malik, instructed by Kothala & Co
For the Respondent: Mr P Nath, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. The claimant is a citizen of Afghanistan born on 5th March 1992. He came to the UK in April 2006 when he was 14 years old as an unaccompanied minor asylum seeker. He was granted discretionary leave, but refused asylum in November 2010. He says he is in a relationship with Ms Alina Andreea Mitrea, a Romanian national who is exercising Treaty rights in UK as a self-employed person. He says they have cohabited since June 2014, and in March 2015 he applied for an EEA residence card on the basis that he is in a durable relationship and thus comes within the definition of an extended family member under Regulation 8 of the Immigration (EEA) Regulations 2006. This application was refused on 11th august 2015. His appeal against the decision was allowed under the EEA Regulations by First-tier Tribunal Judge Metzer in a determination promulgated on the 12th August 2016.
2. Permission to appeal was granted by Judge of the First-tier Tribunal Saffer on 14th December 2016 on the basis that it was arguable that the First-tier judge had erred in law as arguably there was no right of appeal given the claimant had applied to remain as an extended family member; and if there was jurisdiction to hearing the appeal then arguably the appeal should only have been allowed to the extent that the matter was remitted to the respondent to consider issuing a residence permit given the factual findings of the First-tier Tribunal that the claimant is in a durable relationship with Ms Mitrea.
3. The matter came before me to determine whether the First-tier Tribunal had erred in law
Submissions
4. In the grounds of appeal the Secretary of State argues that the First-tier Tribunal errs in law because having found that the claimant and his partner were in a durable relationship the First-tier Tribunal had to remit the matter to the Secretary of State to consider the exercise of discretion to issue a residence permit as there had been no previous decision on whether to exercise discretion. This was in accordance with Regulation 17(4) of the Immigration (EEA) Regulations 2006 and the guidance in Ihemedu (OFMs - meaning) Nigeria [2011] UKUT 00340.
5. Mr Nath also relied upon Sala (EFMs: Right of Appeal) [2016] UKUT 00411 (IAC) which holds that there is no jurisdiction for the First-tier Tribunal to have heard an appeal like the claimant's based on his being an extended family member.
6. Mr Malik tried to argue that I should somehow preserve the positive factual findings of the First-tier Tribunal.
Conclusions - Error of Law & Remaking
7. In the case of Sala the Upper Tribunal found that there was no right of appeal to the First-tier Tribunal under Regulation 26 of the Immigration (EEA) Regulations 2006 for a person who is refused a residence card as an extended family member. As such there was no jurisdiction for the First-tier Tribunal to have heard this appeal, and judicial review or a new application are the only remedies against such a refusal.
8. I thus find that the First-tier Tribunal erred in law in hearing this appeal, and I set the decision aside and substitute one that there was no valid appeal before the First-tier Tribunal. In this circumstance there is no possibility that I can legally preserve any of the factual findings of the First-tier Tribunal.
9. It will be for the claimant and his lawyers to decide whether to lodge a judicial review challenge against the decision of 11th August 2015 refusing a residence permit, however this would clearly now on the face of it be very substantially out of time, and a fresh application for a residence permit to the respondent, including all the evidence adduced at appeal and updating evidence up to the date of application, might be an alternative.

Decision:

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

2. I set aside the decision.

3. I re-make the decision in the appeal by finding there was no valid appeal before the First-tier Tribunal.

Signed: Fiona Lindsley Date: 17th January 2017
Upper Tribunal Judge Lindsley