Tribunal decisions

The decision

IAC-AH-KRL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/32806/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3 November 2016
On 11 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

mr Lasisi Abudu Ibrahim
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr N Aghayere, Solicitor from Lawland Solicitors
For the Respondent: Mr P Singh, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Raymond, promulgated on 15 April 2016, in which the judge dismissed the Appellant's appeal under the Immigration (European Economic Area) Regulations 2006.
2. The appeal to the First-tier Tribunal was against the decision of the Respondent dated 6 August 2014 in which it was concluded that the Appellant did not have a durable relationship with the sponsor/EEA national.
Decision of the judge
3. The judge's decision is a lengthy document and I do not propose to set it out in great detail here, suffice it to say that the judge made detailed references to the evidence before him relating to bank accounts, insurance policies and other information. The judge concluded that the Appellant was not in a durable relationship with the EEA national and that in fact fraud of one sort or another had been practised, amounting it is said in paragraph 61 to "overarching money laundering" by the Appellant and/or the sponsor. As a result of this the appeal was dismissed.
4. A significant feature of the judge's decision is that whilst the hearing took place on 25 August 2015 the decision itself was not completed until 10 April 2016, a delay of some eight months.
The grounds of appeal
5. The grounds seek to argue that the inordinate delay in the writing of the decision caused procedure unfairness to the Appellant. A number of alleged factual errors in the judge's decision are set out in the grounds, along with further points against a number of the findings/conclusions.
6. Permission to appeal was granted by First-tier Tribunal Judge Colyer on 9 September 2016.
The hearing before me
7. At the outset of the hearing I raised the issue of the recent decision of the Upper Tribunal in Sala (EFM: Right of Appeal) [2016] UKUT 00411 (IAC). The effect of this decision is that, "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".
8. On the face of it, the decision in Sala applies to the present case. There was no basis upon which to distinguish the conclusions in Sala: the Appellant not having been granted a residence card previously; there is no removal decision against him; and there was no possible ground of appeal available to him.
9. Mr Singh argued that in light of Sala there had been no right of appeal to the First-tier Tribunal in this case and therefore the decision of the judge was in effect null and void. Mr Aghayere suggested that because a right of appeal had been granted and the First-tier Tribunal had determined the appeal I should deal with the merits of the grounds before me.

Conclusions
10. It has not been suggested on behalf of the Appellant that Sala was in some way wrongly decided. The effect of Sala is clear: where an application is made and considered upon the basis of the applicant being in a durable relationship with an EEA national (thereby being an extended family member) there is no right of appeal against the decision of the Respondent to the First-tier Tribunal.
11. I follow the decision in Sala. The result of this is that the judge had no jurisdiction to hear the appeal, and he erred in doing so. The fact that the Respondent did not cross-appealed on the jurisdictional issue is immaterial. It is well-settled that a tribunal cannot give jurisdiction to itself where none exists.
12. As a consequence of this I set aside the judge's decision and substitute a decision that there was no valid appeal before the First-tier Tribunal.
13. This finally disposes of the matter before me.
Additional comments
14. At the hearing I canvassed views about whether or not the judge had erred on the basis that he was entitled to hear the appeal.
15. In light of the inordinate delay between the hearing of the appeal and the decision being written up some eight months later and what is said in the grounds of appeal (in particular the issues relating to the tenancy agreements and the misapprehension of the evidence regarding one Mr Adeyiga and payments going into a bank account as opposed to out), Mr Singh took the realistic view that there had been procedural unfairness in this case. There was a nexus between the delay by the judge in putting out his decision on the one hand and the safety of that decision on the other. Thus even if the judge had had jurisdiction to hear the appeal there were material errors of law and it would have been set aside.

Notice of Decision
The Appellant's appeal to the Upper Tribunal is dismissed on the basis that there was no valid appeal before the First-tier Tribunal.
No anonymity direction is made.

Signed Date: 10 November 2016
Deputy Upper Tribunal Judge Norton-Taylor