EA005642015

The appellant's representative accepted in the Grounds of Appeal to this tribunal that, according to Sala , there was no right of appeal against a decision by the respondent to refuse a residence card to a person who claimed to be an extended family member. It was submitted, instead, that Sala was wrongly decided. Whether or not it was wrongly decided, it was not an error of law for the FTTJ to follow the guidance in S ala which is binding on the FTT. While the matter is to be considered afresh in the Court of Appeal no judgment has yet been handed down by that Court. The UT's judgment in Sala addresses exactly the issue which was before the FTTJ and the FTTJ identified as much at paragraphs 10 and 20 of the decision.

For the avoidance of doubt, I also find that, in the absence of the appellant or any representative on his behalf, the FTTJ was entitled to decide the issue of jurisdiction. In Virk v SSHD [2013] EWCA Civ 652 , it was said that "Statutory jurisdiction cannot be conferred by waiver or agreement; or by the failure of the parties or the tribunal to be alive to the point". Whilst fairness would have required this being raised, given that it had not been raised previously, neither the appellant nor any representative attended the hearing; furthermore, the appellant did not request an adjournment of the hearing in the FTT and this appeal is not grounded on a submission that the failure to consider an adjournment was a procedural irregularity amounting to an error of law. In such circumstances, it was wholly appropriate for the FTTJ to decide the issue of jurisdiction.

The decision of the FTTJ contains no material error of law: the appellant had no right of appeal as is clearly stated at paragraph 20 of the decision under the heading "Decision and Reasons".

The making of the decision of the First-tier Tribunal did not involve the making of a material error on a point of law.

I do not set aside the decision.