Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/46130/2014

THE IMMIGRATION ACTS

Heard at Field House
On 6th October 2016
Decision and Reasons Promulgated On 10th October 2016

Before

Upper Tribunal Judge Rimington
(Immigration and Asylum Chamber)

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
And

Mr Zuhaib Babar Syed
(anonymity direction NOT MADE)
Respondent

Representation:
For the Appellant: Ms K Pal, Home Office Presenting Officer
For the Respondent: Mr N S Aluwalia, instructed by Visa Expert Ltd

DECISION AND REASONS
1. The application for permission to appeal was made by the Secretary of State but nonetheless for the purposes of this decision I shall refer to the parties as they were described before the First-tier Tribunal.
2. The appellant is a national of Pakistan born on 1st May 1988 and appealed against the Secretary of State's decision to refuse him a residence card as confirmation of a right of residence as an extended family member of an EEA national under Regulation 8(1) of the Immigration (European Economic Area) Regulations 2006.
3. On 1st August 2016 First Tier Tribunal Judges Thomas and Page allowed the appellant's appeal.
4. The Respondent filed grounds for permission to appeal on the basis that in the absence of any argument from either party as to the applicability of Regulation 8(3) (medical dependence on an EEA sponsor), and on which the appeal was allowed, there was procedural unfairness. Permission to Appeal was granted by First Tier Tribunal Judge Easterman.
5. At the hearing before me Ms Pal submitted that the Upper Tribunal had no jurisdiction as there was no right of appeal for an extended family member.
6. The Upper Tribunal Immigration and Asylum Chamber Guidance Note 2011 No 2 (amended July 2015) Reporting Decisions of the UTIAC states as follows
'In the event of diverging jurisprudence on an important question of law, a decision of a panel of the Chamber may be reported as a starred case, when it will become binding. In the absence of a starred case the common law doctrine of judicial precedent shall not apply and decisions of the AIT and one constitution of the Chamber do not as a matter of law bind later constitutions. Judges of the First-tier Tribunal Immigration and Asylum Chamber are, however, expected to follow the law set out in reported cases, unless persuaded that the decision failed to take into account an applicable legislative provision or a binding decision of a superior court. Where there is reasonable doubt about whether a decision of the AIT or the Chamber should continue to be followed permission to appeal to the Chamber may well be granted in appropriate cases'.
7. Despite the very interesting arguments proposed by Mr Aluwalia, I will follow the decision in Sala (EFMs: Right of Appeal) [2016] UKUT 00411 (IAC) which established 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. Sala was a two panel decision and although I have considered the submissions carefully I do not accept them. Rahman and Others C-83/11 merely appears to confirm that legal redress for an EFM should be within the limits of the discretion set by the directive and I note that the preamble of the Directive 2004/38/EC at [25] and [26], and Articles 15, 27, 31, all appear to refer to 'family members not 'extended family members'. There may be some advantage ascribed to EFMs under the Directive but they are in a wholly different category from 'family members'. Further, the examination of the facts is in relation to 'facilitation' rather than judicial redress but even if I am wrong about that, there is a wide margin of appreciation for member states and moreover, even if the CJEU did not state that applicants were entitled only to judicial review nothing in Rahman confers a right of statutory appeal or in turn suggests that judicial review would be a breach of Article 47 of The EU Charter on Fundamental Rights.
9. Turning to the argument on non-discrimination the analogy of appeal for a partner or adult dependent relative does not apply. This applicant does not fall into either category. On the point of the interpretation of Regulation 26A and the effect of an amendment on the construction of legislation, Mr Aluwalia submitted that the construction of EEA law was wholly different. The Tribunal in Sala (EFMs: Right of Appeal) [2016] UKUT 00411 (IAC), however, was interpreting United Kingdom legislation albeit in relation to EU law and Brown v SSHD [2015] UKSC 8 refers to 'construing any legislation'. I have already given my views in relation to the Directive itself. Finally, it is a matter for parliament as the rights conferred in other jurisdictions and the Tribunal in Sala was merely interpreting the Regulations attached to a wholly separate and discrete jurisdiction.
10. I find, therefore, that I must follow Sala (EFMs: Right of Appeal) [2016] UKUT 00411 (IAC) and I do not have jurisdiction to entertain this appeal.
Decision
No valid appeal or jurisdiction

Signed Helen Rimington

Upper Tribunal Judge Rimington
Dated 6th October 2016