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

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: IA/30623/2015

 

 

THE IMMIGRATION ACTS

Heard at Field House	Decision & Reasons Promulgated
On 3 March 2017	On 26 June 2017

 

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE BAGRAL

 

 

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

 

Appellant

 

And

 

DENTON ALWYN LINDSAY

(ANONYMITY DIRECTION NOT MADE)

 

Respondent

Representation :

 

For the Appellant: Mr S Kotas, Home Office Presenting Officer

For the Respondent: Ms E Narh, Legal Representative

 

 

DECISION AND REASONS

1.              The Secretary of State appeals against the decision of Judge of the First-tier Tribunal Shiner (hereafter "the Judge") promulgated on 16 September 2016 allowing the appeal of Mr Lindsay against the Secretary of State's decision refusing his application for a Residence Card.

2. While this is an appeal by the Secretary of State, I shall refer to the parties as they were before the First-tier Tribunal.

3. The Appellant is a citizen of Jamaica born on 22 September 1966. It is not necessary to set out the Appellant's background in full, but it is germane to note that his application for a Residence Card as an Extended Family Member of an EEA national, namely, his partner, a German national, was refused by the Respondent on 20 August 2015. That decision was not upheld by the Judge essentially because he accepted the Appellant and his partner were in a durable relationship, and that, his partner was exercising Treaty rights in the UK.

4. The First-tier Tribunal granted permission to appeal on 11 January 2017 on the basis that it was arguable the Judge erred in law in finding that the Appellant had a right of appeal following the Upper Tribunal's decision in Sala ( EFMs: Right of Appeal ) [2016] UKUT 411 (IAC) .

5. The Judicial head note to the decision in Sala (ibid) reads as follows: "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." At the outset of the hearing before me, the representatives agreed that in light of this decision, the First-tier Tribunal had no jurisdiction to hear the appeal.

 

6. The decision in Sala is declaratory of the law as it currently stands and must be applied notwithstanding that it was a decision reported subsequent to the decision of the First-tier Tribunal. I thus apply that decision to this appeal. I find that the First-tier Tribunal had no jurisdiction to hear the appeal as there is no right of appeal against the Respondent's decision not to issue a Residence Card to an applicant claiming to be an Extended Family Member.

Disposal

7. The Appellant has no right of appeal. The First-tier Tribunal had no jurisdiction to hear the appeal. It erred in law in doing so. Its decision is set aside. I substitute a decision that there was no valid appeal before the First-tier Tribunal.

 

No anonymity direction is made.

 

 

Signed Dated : 3 March 2017

 

Deputy Upper Tribunal Judge Bagral