IA/29301/2015

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The decision




Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/29301/2015


THE IMMIGRATION ACTS


Heard at: Liverpool
Decision and Reasons Promulgated
On: 1st February 2017
On: 3rd February 2017



Before

UPPER TRIBUNAL JUDGE BRUCE


Between

The Secretary of State for the Home Department
Appellant
And

Bilawal Rais
(No anonymity direction made)
Respondent


For the Appellant: Mrs Aboni , Senior Home Office Presenting Officer
For the Respondent: Mr Atuegbe, R & A Solicitors


DETERMINATION AND REASONS

1. The Respondent is a national of Pakistan born on the 17th November 1992. On the 7th July 2016 the First-tier Tribunal (Judge Ince) allowed his appeal with reference to the Immigration (European Economic Area) Regulations 2006, the Tribunal being satisfied that the respondent had demonstrated a dependency on his aunt, a German national exercising treaty rights. The Secretary of State now has permission to appeal against that decision.

2. The Secretary of State's complaint is that the Tribunal did not have the jurisdiction to 'allow' the appeal outright since the matter in issue was whether the then appellant was an extended family member under Regulation 8. The unchallenged findings being that he was, the most that the First-tier Tribunal could do would be to remit the matter to the Secretary of State so that she could exercise her discretion under Regulation 17(4). Mr Atuegbe did not dispute that this would have been the correct approach.

3. A further matter now arises. The grounds were drafted, and permission given, before the decision of the Upper Tribunal in Sala v Secretary of State for the Home Department [2016] UKUT 411 (IAC) was handed down. The effect of that decision is that there is no right of appeal to the Tribunal against a decision taken in respect of Regulation 8. That means that the First-tier Tribunal erred in law in proceeding to hear the appeal at all. There was no valid appeal before the First-tier Tribunal and its decision is therefore a nullity.

4. I note that the findings of fact made by the First-tier Tribunal are not challenged by the Secretary of State. Notwithstanding the ultimate fate of this careful judicial decision the Secretary of State will no doubt have regard to those findings in considering any future application or application for review.


Decisions

5. The determination of the First-tier Tribunal is a nullity as there was no appeal before the Tribunal. It is therefore set aside.

6. There is no appeal before the Upper Tribunal.

7. There is no order for anonymity.




Upper Tribunal Judge Bruce
1st February 2017