IA/31259/2015

• Status of case: Unreported
• Hearing date: 16 Mar 2017
• Promulgation date: 21 Mar 2017
• Publication date: 7 Mar 2022
• Last updated on: 7 Mar 2022

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/31259/2015


THE IMMIGRATION ACTS


Heard at Glasgow
Determination issued
on 16 March 2017
on 21 March 2017



Before

UPPER TRIBUNAL JUDGE MACLEMAN


Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

ELIZABETH WOOD
Respondent


For the Appellant, Mr M Matthews, Senior Home Office Presenting Officer
No appearance by or for the respondent


DECISION
1) This is an appeal by the SSHD against a decision by First-tier Tribunal Judge Burnett, who allowed the appellant’s appeal against refusal of a residence card under the Immigration (EEA) Regulations 2006.
2) The case was before the UT on 15 December 2016, on 12 January and 16 February 2017, and again today.
3) This decision is to be read along with notes dated 12 January and 16 February 2017.
4) Information on the case file before me is unfortunately incomplete. It seems that Miss Wood communicated again with the UT (at Field House, London, from where the UT is administered) saying that she wished to withdraw. No copy is before me but I might guess, given proceedings so far, that her indication was unconditional. Unfortunately, she has been sent another reply advising her that she was not legally able to do so, this presently being not her appeal but that of the SSHD.
5) It appears that there is difference of opinion within the UT on this issue of interpretation of the rules.
6) The submission for the SSHD, assuming that the case remains for decision, is (put very briefly) as follows. The “Surinder Singh” principle does not extend to the unmarried partner of an EU citizen, nor does EU Directive 2004/38/EC. In any event, applying Sala [2016] UKUT 00411, Miss Wood had no right of appeal to the FtT.
7) Those submissions appear well founded in law. As Miss Wood now has such leave as she might reasonably have expected, they may be given effect without further ado, drawing this unfortunate and protracted saga, which has not to any significant extent been her fault, at last to a sensible close. There is no practical difference between recording withdrawal of the case by Miss Wood and recording that there was no valid appeal in the first place.
8) On authority of Sana, the appellant had no right of appeal. The First-tier Tribunal had no jurisdiction to hear the “appeal”. It erred in law in doing so. Its decision to allow the “appeal” before it is set aside.
9) The following decision is substituted: there was no valid appeal before the FtT.




16 March 2017
Upper Tribunal Judge Macleman