Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/29296/2014
IA/29301/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 15 June 2016
On 4 October 2016

Before

Deputy Upper Tribunal Judge MANUELL

Between

(1) MR RUDOLFO APELADO MABALLO
(2) MRS VIOLETA GARCIA MABALLO
(ANONYMITY DIRECTION not made)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellants: Mr M Biggs, Counsel
(instructed by Universal Solicitors)
For the Respondent: Mr K Norton, Home Office Presenting Officer

DETERMINATION AND REASONS

1. These appeals were heard several months ago and the tribunal's decision was reserved. By administrative oversight, the files were misplaced and the preparation of the determinations was delayed, for which the tribunal expresses its regret to both parties. The delay has, however, had the important advantage that the relevant law has been clarified in Sala (EFMs: Right of Appeal [2016] UKUT 00411 (IAC): There is no statutory right of appeal against the decision of Secretary of State for the Home Department not to grant a residence card to a person claiming to be an extended family member. These appeals were brought by extended family members. The effect of Sala is that the First-tier Tribunal had no jurisdiction to hear these appeals. Accordingly the linked onwards appeals must be allowed to the extent that they must be remade and dismissed.

2. In deciding to remake and dismiss these appeals, the tribunal considered whether the appeal hearings should be reconvened in order to receive submissions concerning the effect of Sala. The tribunal saw no point in doing so. Neither of the parties in Sala has appealed. The decision was prepared by a senior panel after full argument and long consideration. Its official headnote is unequivocal.

3. The Appellants had appealed out of time with permission granted on 2 May 2016 with evident reluctance by First-tier Tribunal Judge Nicholson against the decision and reasons of First-tier Tribunal Judge Shepherd promulgated on 21 October 2015. In a full and careful decision, Judge Shepherd had dismissed the appeals of the Appellants, the grandparents of their EEA national sponsor, who had claimed that they were his dependants. Adverse credibility findings were made against all witnesses. The reality was that the sponsor was living on the state benefits received by his grandparents. Judge Nicholson nevertheless considered that some of the authorities relied on by the Appellants, such as Lebon C-316/85 [1987] ECR 2811, Jia v Migrationsverket C-1/05 and Pedro [2009] EWCA Civ 1358, merited further examination.

4. As noted above, however, whether or not the grant of permission to appeal was generous, the effect of Sala means that the First-tier Tribunal had no jurisdiction to hear the appeals in the first place. To that extent, and through no fault of the judge as Sala had not at that stage been reported, it was an error of law to hear the appeals. The decision is set aside. The arguments based on the cases mentioned in [3], above, do not arise for consideration in those circumstances and the tribunal can express no opinion on them. The only decision which can be made is to set aside the original decision and to dismiss the linked appeals.

DECISION

The appeals to the Upper Tribunal are allowed. The original decisions are set aside for want of jurisdiction. The following decision is substituted:

The appeals are dismissed

There can be no fee awards

Signed Dated 4 October 2016

Deputy Upper Tribunal Judge Manuell