Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/50979/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 21 September 2016
On 31 October 2016

Before

UPPER TRIBUNAL JUDGE ALLEN

Between

THE Secretary of State FOR THE Home Department
Appellant
and

DIANA VARATHARAJA
(anonymity direction NOT MADE)
Respondent

Representation:
For the Appellant: Ms A Brocklesby-Weller, Senior Home Office Presenting Officer
For the Respondent: Mr R Solomon, instructed by Jein Solicitors

DETERMINATION AND REASONS

1. The respondent Miss Varatharaja, to whom I shall refer hereafter as the appellant, as she was before the First-tier Judge, appealed to the First-tier Tribunal against the respondent's decision of 2 December 2014 refusing her application for a residence card as an extended family member of an EEA national. The judge allowed the appeal on the basis that the appellant complied with the requirements of Regulation 8(2) of the Immigration (EEA) Regulations 2006. The Secretary of State, to whom I shall refer hereafter as the respondent, as she was before the judge, sought and was granted permission to appeal on the basis that as she had not exercised her discretion in this case under Regulation 17(4) of the EEA Regulations, the appeal should have been remitted to her for consideration under that Regulation instead of allowing the appeal outright.

2. In the interim, a panel of the Upper Tribunal consisting of the Vice President and Upper Tribunal Judge Grubb had decided in Sala [2016] UKUT 411 (IAC) that a person who was refused a residence card as an extended family member under the Regulations has no right of appeal.

3. Mr Solomon argued that the facts of Sala could be distinguished from those in the instant case as this involved Regulation 8(2) rather than involving a durable relationship under Regulation 8(5) as had been the case in Sala. He argued that the refusal did not go on to consider the discretion under Regulation 17(4). In Sala, the case concerned whether or not the relationship was a durable one, and the Secretary of State had gone on to consider the exercise of her discretion and refused to do so. Sala told of the situation where there had been an exercise of discretion by the Secretary of State which had not been in the appellant's favour. It was a slightly different situation where there was no exercise of discretion but the matter arose under Regulation 8(2) only and the decision was in favour of the appellant. It was argued that the judge had jurisdiction to deal with the matter in the circumstances. It had to be read with this more nuanced approach. It could be seen from paragraph 48 of Sala what the ambit of the decision was. Also, what was said at paragraph 84:

"A decision, taken by the Secretary of State in the exercise of her discretion, not to issue an EFM with a residence card under Regulation 17(4) is not a decision under the EEA Regulations 2006 which 'concerns... a person's entitlement to be issued with...a residence card'"

was not applicable to the instant case. The Tribunal's jurisdiction was limited to the refusal in respect of Regulation 8(2) and Sala therefore was to be distinguished.

4. In her submissions Ms Brocklesby-Weller argued that Sala should be adopted and there was no distinction between being an extended family member by the two different methods in Sala and in the instant case. It was fundamental that there was a lack of entitlement to a residence card. There was no substantive right after the card had been issued as could be seen from paragraph 79 onwards.

5. By way of reply Mr Solomon argued that if the Tribunal were with him there was no consideration of a Regulation 17(4) discretion, but no error by the judge as the appeal had not been allowed in respect of Regulation 17(4) but under Regulation 8(2) only. The judge had found in favour of the appellant. The issue of exercise of discretion was outstanding before the Secretary of State. It was clearly a case that fell under Regulation 8(2) only in this case. This could be seen particularly from paragraphs 15 and 16 of the judge's decision. The exercise of the discretion in the issuing of the card was a matter with the Secretary of State. In the alternative the decision was not in accordance with the law and awaited an exercise of discretion.

6. I reserved my decision.

7. Despite the ingenious arguments of Mr Solomon, I am not persuaded that any material distinction can be drawn for the purposes of this issue between a decision under Regulation 8(2) of the EEA Regulations and one under Regulation 8(5). It is clear from the first paragraph in Sala that the appeal raises the issue of whether a person who is refused a residence card as an extended family member under the Regulations has a right of appeal to the First-tier Tribunal under Regulation 26 of those Regulations, and it is clear from what is said at paragraph 2 that no right of appeal exists. Nor do I consider that it makes any difference whether or not the respondent has exercised her discretion. The decision was not limited to the particular facts of the case, but is a general conclusion that there is no appeal right in the case of an extended family member who is refused a residence card. I agree with the decision and as a consequence the judge's decision is set aside and for it is substituted a decision that there was not a valid appeal before the First-tier Tribunal.

No anonymity direction is made.

Signed Date

Upper Tribunal Judge Allen 31 October 2016