Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/29583/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 24 January 2017
On 25 January 2017

Before

UPPER TRIBUNAL JUDGE PLIMMER

Between

KHIZAR USMAN
NO ANONYMITY DIRECTION MADE
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Karnik (Counsel)
For the Respondent: Mr Diwnycz (Senior Home Office Presenting Officer)

DECISION AND REASONS

1. The appellant has appealed against a decision of the First-tier Tribunal dated 11 July 2016, in which it dismissed his appeal on human rights grounds. The appeal was made against the SSHD's decision dated 13 August 2015 to refuse the appellant's application for a residence card as confirmation of his right to reside in the UK as an extended family member ('EFM') of his brother, an EEA national under the Immigration (European Economic Area) Regulations 2006 (as amended) ('the 2006 EEA Regulations').

2. In her decision the SSHD was not satisfied that the appellant was dependent upon his brother as claimed.

First-tier Tribunal decision

3. The First-tier Tribunal heard oral evidence from the appellant and his brother. Having heard that evidence and having considered detailed documentary evidence the First-tier Tribunal made very clear factual findings that the appellant has remained dependent upon his brother for all material purposes, since 1990 [38 and 39].

4. The First-tier Tribunal dealt with the appeal on the basis that it could only be allowed on Article 8 grounds [6 and 40]. The First-tier Tribunal therefore applied its positive factual findings to the applicable Article 8 legal framework but dismissed the appeal on Article 8 grounds.

Issues arising

5. In the grounds of appeal prepared on behalf of the appellant it was submitted that the First-tier Tribunal was entitled to make its factual findings but that it erred in law in its application of the law to those facts. It was suggested that the First-tier Tribunal did not have jurisdiction to consider Article 8 (see Amirteymour and others [2015] UKUT 466 (IAC)) but that it should have considered whether the appellant met the requirements of the 2006 EEA Regulations i.e. whether or not he was entitled to a residence card as an EFM.

6. In her rule 24 notice the SSHD did not dispute the factual findings but submitted that the First-tier Tribunal did not have jurisdiction to entertain the appeal following Sala (EFMs: Right of Appeal) [2016] UKUT 411 (IAC). The headnote states: "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."

7. Both representatives accepted that the only issue in dispute is whether or not Sala was correctly decided. Mr Diwnycz relied upon the reasoning in Sala to support his submission that the failure to consider the appeal pursuant to the 2006 EEA Regulations was not a material error - it could not be because the First-tier Tribunal had no jurisdiction to consider any ground of appeal arising from the decision at all. Mr Karnik accepted that the grounds of appeal conceded an absence of jurisdiction to consider human rights but relied upon his skeleton argument to submit that Sala was wrongly decided. He therefore argued that the correct course is to allow the appeal to the extent that the matter is reconsidered by the SSHD.

Jurisdiction

8. The arguments employed by Mr Karnik have largely been considered and rejected by the Tribunal in Sala. The Tribunal acknowledged that it had long been assumed that EFMs had a right of appeal [43] but that upon hearing detailed argument, perhaps for the first time, the approach adopted previously was wrong. For the reasons set out in Sala and Amirteymour the First-tier Tribunal did not have jurisdiction to hear the appeal in question. I have also considered the separate argument relied upon by Mr Karnik that Sala should not have retrospective effect. This submission misses the point. Whatever the position that existed previously, the question for me is whether or not the First-tier Tribunal had jurisdiction. For the reasons identified in Sala it did not.

Other matters

9. In any event, even if Sala is wrong and the appellant has a right of appeal, the Tribunal would be limited to remitting the matter to the SSHD. Regulation 17(4) of 2006 EEA Regulations provides discretion to the SSHD to issue a residence card to an EFM. The SSHD has not yet considered the exercise of such discretion because she did not have the full facts available.

10. In this case there have been comprehensive clear findings of fact. Although the First-tier Tribunal did not have jurisdiction to make those findings, the reality of the situation is that a Judge has heard evidence from the appellant and his brother, and accepted the necessary dependency, in the course of making comprehensive credibility findings. These findings have not been appealed by the SSHD.

Disposal

11. The appellant has no right of appeal. The First-tier Tribunal had no jurisdiction to hear the appeal. It erred in law in doing so.

12. I set aside the decision to allow the appeal and substitute a decision that there was not a valid appeal before the First-tier Tribunal.

Signed:
Ms M. Plimmer
Judge of the Upper Tribunal

Date:
24 January 2017