Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/03239/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 14 December 2016
On 11 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE RAMSHAW

Between

MISS NAZIA SULTANA
(ANONYMITY DIRECTION not made)
Appellant
and

ENTRY CLEARANCE OFFICER - NEW DELHI
Respondent

Representation:
For the Appellant: Mr Isam Khan, instructed by SEB Solicitors
For the Respondent: Mr I Jarvis, Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. This is an appeal on behalf of the Entry Clearance Officer ('ECO') against the decision of the First-tier Tribunal. I shall refer to the ECO as the respondent and Miss Sultana (the appellant before the First-tier Tribunal) as the 'claimant' to avoid confusion.
2. The claimant is a citizen of Bangladesh whose date of birth is 4 December 1991. She applied for admission to the United Kingdom under the provisions of the European Economic Regulations 2006 ('the 2006 Regulations') as an extended family member of an EEA national exercising treaty rights in the UK. The claimant's EEA sponsor is a Belgian national. The claimant applied for a family permit as the extended family member of an EEA national. The respondent refused her application in a decision dated 12 January 2015. The respondent was not satisfied that the claimant had been dependent on her sponsor and that they had not been living together as a family unit. The claimant appealed against that decision to the First-tier Tribunal.
3. In a decision promulgated on 28 July 2016 First-tier Tribunal Judge, R Calendar-Smith, allowed the claimant's appeal. The First-tier Tribunal found that the claimant had shown prior dependency and present dependency by the claimant on the sponsor. The First-tier Tribunal allowed the appeal under the 2006 Regulations.
4. The respondent applied for permission to appeal against the First-tier Tribunal's decision. On 17 November 2016 Designated First-tier Tribunal Judge Murray granted the respondent permission to appeal. Thus the appeal came before me.
The Appeal before the Upper Tribunal
5. At the beginning of the hearing I raised the issue as to whether or not the case of Sala (EFMs: Right of Appeal) [2016] UKUT00417 (IAC) was relevant to this appeal. In his oral submissions Mr Jarvis indicated that it was the respondent's view that the case of Sala applied in the circumstances of the instant case. He therefore submitted that there was no right of appeal against the respondent's decision. He invited me, notwithstanding there being no right of appeal to the First-tier Tribunal to consider the grounds of appeal as submitted and to make a finding that the First-tier Tribunal erred in law by allowing the appeal under the Regulations. He submitted that the issue of a residence card to an extended family member is at the discretion of the respondent and as such the matter should have been referred back to the respondent for reconsideration in accordance with Regulation 12(2) and (3) of the 2006 Regulations. He submitted that the respondent had not proceeded to the second stage of deciding whether to exercise discretion in the claimant's favour by granting her family a permit. In order to allow the respondent to exercise this discretion now the judge was constrained to allowing the appeal to a limited extent on the basis that the respondent's decision was not in accordance with the law.

6. Mr Khan submitted that the case of Sala was not relevant. He submitted that Sala was particular to its own facts and does not apply generally. He argued that there is a right of appeal. He referred to Section 86 of the Immigration, Asylum and Nationality Act 2002. In response to the respondent's grounds of appeal he submitted that although the discretion in Regulation 17(4) has not been exercised the First-tier Tribunal had not erred in law. He accepted that the First-tier Tribunal Judge should not have said that the appeal must succeed but he argued that the judge cannot direct the Secretary of State. He relied on the case of Greenwood (No. 2)(para 398 considered) [2015] UKUT 00629 (IAC) at paragraph 20 submitting that it is clear from that decision that the Tribunal has no power to remit the matter to the Secretary of State. He referred to Section 86 of the 2002 Act and submitted that the Tribunal must allow or dismiss the appeal. However that does not mean that the discretion is no longer available to the respondent. He referred to paragraph 21 of the decision in Greenwood where the Tribunal set out the structure of the legislation and at paragraphs 24 and 25 where the Tribunal analysed the law in detail.
Discussion
7. Having considered the case of Sala it is clear that this has more general application than to the facts of the case that the Upper Tribunal were considering when arriving at their judgment. As set out in Sala extended family members do not have an entitlement to a residence card and therefore the rights of appeal do not extend to appeals against a decision not to issue a residence card to extended family members falling within Regulation 8 of the EEA Regulations 2006.
8. The appellant had no right of appeal. The First-tier Tribunal had no jurisdiction to hear the appeal. It therefore erred in law in entertaining the appeal.

9. I set aside the First-tier Tribunal decision and substitute a decision that there was not a valid appeal before the First-tier Tribunal. The decision of the respondent stands.

Notice of Decision

The claimant does not have a right of appeal. The First-tier Tribunal had no jurisdiction to hear the appeal. The decision of the ECO stands.

No anonymity direction is made.

Signed P M Ramshaw Date 10 January 2017

Deputy Upper Tribunal Judge Ramshaw