Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/36861/2014

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 20 September 2016
On 22 September 2016

Before

UPPER TRIBUNAL JUDGE WARR

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

RABIA KANWAL
(Anonymity Direction not made)
Respondent

Representation:
For the Appellant: Mr K Norton, Home Office Presenting Officer
For the Respondent: Ms K Joshi (Denning Solicitors)

DETERMINATION AND REASONS
1. The respondent is a citizen of Pakistan born on 13 August 1989. She applied on 11 June 2014 for a residence card as an extended family member of an EEA national under regulation 8(1) of the Immigration (European Economic Area) Regulations 2006. The Sponsor is the respondent's maternal uncle, a Spanish national.
2. The Secretary of State refused the application on 4 July 2014 as the respondent had not provided any evidence of dependency on her sponsor either in the United Kingdom or in Pakistan or that she had been residing with him in the United Kingdom.
3. The respondent appealed and her appeal came before a First-tier Judge on 21 May 2015. The judge heard oral evidence from the respondent and her sponsor. The Secretary of State was not represented at the hearing.
4. The judge made favourable credibility findings in respect of the parties and found in their favour on all the disputed issues. She found the respondent was entitled to a residence card under regulation 8(2)(a) and (c) and allowed the appeal.
5. The Secretary of State applied for permission to appeal and permission was granted by the First-tier Tribunal on 10 September 2015 on the basis that the judge had erred in allowing the appeal outright in the light of Ihemedu (OFMS - meaning) Nigeria [2011] UKUT. The matter should have been left to the Secretary of State to exercise discretion under regulation 17(4).
6. At the hearing reference was made to a recent unreported decision of the Tribunal chaired by the Vice President - Shemsi Sala IA44409/2013 - in which the Tribunal had decided that there was no right of appeal against the decision to refuse a residence card as an extended family member.
7. The decision is authoritative on the position pending any decision of the Court of Appeal. It follows that I have no jurisdiction in this matter and, although it was not then appreciated, the First-tier Tribunal had no jurisdiction either. While the First-tier Tribunal made favourable credibility findings the status of those findings - which were not the subject of challenge in the application for permission to appeal - is at best doubtful. It is regrettable that there has been delay in dealing with this appeal which has ended without positive resolution so far as the respondent is concerned.
8. However in the light of the decision in Shemsi Sala I can only hold that the Tribunal has no jurisdiction in this case.
9. Appeal dismissed for want of jurisdiction.

Signed
G Warr, Judge of the Upper Tribunal

21 September 2016