United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Numbers: EA/02591/2015

EA/02596/2015

 

 

THE IMMIGRATION ACTS

Heard at Field House	Decision & Reasons Promulgated
On 19 th April 2017	On 4 th May 2017

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE J G MACDONALD

 

 

Between

 

the Secretary of State for the Home Department

Appellant

and

 

mr gurpreet singh kalsi

mrs Paramjeet Malkit Sembhi

(ANONYMITY DIRECTION not made)

Respondent

 

 

Representation :

 

For the Appellant: Mr N Bramble, Senior Home Office Presenting Officer

For the Respondent: Mr A Chohan, Counsel instructed by Magna Solicitors

 

 

DECISION AND REASONS

1.              The claimants in this case are husband and wife and nationals from India (I shall continue to refer to them as the appellants) whose appeal was allowed on immigration grounds by First-tier Tribunal Judge Lloyd in a decision promulgated on 10 ^th August 2016. The Secretary of State sought permission to appeal the judge's decision and set out grounds for doing so. Permission was granted by First-tier Tribunal Judge Scott-Baker who pointed out that in addition the issue of jurisdiction would need to be considered pursuant to Sala (EFMs: Right of Appeal) [2016] UKUT 411 (IAC) where the Upper Tribunal found 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 - which is the position here.

2.              Before me Mr Bramble relied on his grounds and said that, given the Sala point, there had been no valid appeal before the First-tier Tribunal.

3.              For the appellants, Mr Chohan relied on his Rule 24 Notice and pointed out that the judge's findings predated the promulgation of the decision in the Sala case; as such the judge was not bound by Sala which in any event was the subject of an appeal.

4.              I reserved my decision.

Conclusions

5.              I go straight to the Sala point in that it raises a jurisdictional issue. It is true, as Mr Chohan pointed out, that the decision in that case had not been promulgated at the time the judge issued his decision. Sala was promulgated on 19 ^th August 2016, nine days after the decision of Judge Lloyd was promulgated. However, that is not the point. The question is what was the law at the material time, namely when Judge Lloyd made his decision. As at the date of that decision the principle set out in Sala applied.

6.              That principle in Sala is quite clear - the Vice-President and Professor Grubb found 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. That is exactly the position here. It follows that, according to the reasoning set out in Sala (whether it is being appealed or not), the appellants in this case do not have a statutory right of appeal. It is therefore necessary to set aside the decision of Judge Lloyd.

Notice of Decision

7.              The appellants have no right of appeal. The First-tier Tribunal had no jurisdiction to hear the appeal. It erred in law in doing so.

8.              I set aside the decision to allow the appeal and substitute a decision that there was not a valid appeal before the First-tier Tribunal.

9.              No anonymity direction is made.

 

 

Signed Date 24 ^th April 2017

 

Deputy Upper Tribunal Judge J G Macdonald