Tribunal decisions

The decision

IAC-FH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/43501/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 26 January 2017
On 6 February 2017

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

the Secretary of State for the Home Department
Appellant
and

Olalekan Olaiwola Benjamin-Oguntade
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr T Wilding, Home Office Presenting Officer
For the Respondent: Mr S Osifeso, Legal Representative of Lannex Immigration & Legal Advice Services

DECISION AND REASONS
1. The Secretary of State appeals with permission against the decision of First-tier Tribunal Judge Thomas promulgated as long ago as 19 May 2015 in which the appeal brought by Mr Olalekan Olaiwola Benjamin-Oguntade against a decision to refuse to issue him on the basis of a residence card as the extended family member of an EEA national was refused.
2. The judge found that the relationship between the appellant and his partner, Miss Konarska, a Polish national, was genuine; that the relationship was durable; and, that they had cohabited from November 2010 to date. She therefore found that he met the requirements of Regulation 8(5) EEA Regulations. The judge however then went on to allow the appeal under the EEA Regulations.
3. The Secretary of State sought permission to appeal against that decision on the basis that what the judge should have done was following the decision in Ihemedu (OFMs - meaning) Nigeria [2011] UKUT 340 was to allow the appeal to the limited extent that it is otherwise not in accordance with the law and direct that the Secretary of State should make a fresh decision to consider her discretion pursuant to Regulation 17(4) of the EEA Regulations.
4. On 9 December 2016 Designated First-tier Tribunal Judge McCarthy granted permission on the grounds sought and also granted permission on the basis that it should be granted because in the light of the decision in Sala (EFMs: Right of Appeal: Albania) [2016] UKUT 411 it is arguable that Judge Thomas without knowing it had erred by entertaining the appeal whatsoever.
5. When the matter came before me, Mr Osifeso who appeared before the applicant, did not seek to persuade me that the decision in Sala was wrongly decided, but submitted that given the history of this case that discretion and fairness required that the appeal ought to have been entertained. He did however accept that the decision in Ihemedu ought to have been followed and that the decision should have been remitted to the Secretary of State for a decision to be made as to whether discretion should have been exercised.
6. I am not persuaded by any of the submissions made that the decision in Sala was wrong or that there is any basis on which I should not follow it. Further, whether or not the First-tier Tribunal has jurisdiction is a binary question: either it does or it does not. Issues of discretion under which fairness would apply do not arise in such an issue, and on that basis I am satisfied in this case that unknown to the judge she did not in fact have jurisdiction to entertain the decision.
7. If, however, I am wrong and the decision in Sala should not have been followed, I would have found that the judge did make an error of law and that the appeal should have been allowed on the basis that the decision of the Secretary of State was not in accordance with the law and that therefore the application was still pending before the Secretary of State, awaiting a proper lawful decision in the light of the findings of Judge Thomas.
8. For these reasons I allow the Secretary of State's appeal. I set aside the decision of the First-tier Tribunal and substitute a decision that the First-tier Tribunal had no jurisdiction to hear the appeal.

SUMMARY OF CONCLUSIONS
1. The decision of the First-tier Tribunal did involve the making of an error of law, and I set it aside.
2. I remake the decision by substituting a decision that there is no jurisdiction to consider the appeal, and therefore it falls to be dismissed.

Signed Date: 3 February 2017

Upper Tribunal Judge Rintoul