IA219752015

The appellant (hereafter the Secretary of State or SSHD) brings a challenge with permission to the decision of First-tier Tribunal Judge Carlin dated 23 February 2016 allowing the appeal outright of the respondent (hereafter the claimant) against a decision made by the SSHD dated 28 May 2015 refusing to issue a residence card as a confirmation of a right of residence under the Immigration (European Economic Area) Regulations 2006 as the unmarried partner of an EEA national exercising Treaty rights.

Mr Sawar did not seek to persuade me to depart from the statement of law set out in Sala . Accordingly I conclude that the SSHD must succeed in her challenge because the decision of the FtT is vitiated by legal error. The judge erroneously considered he had jurisdiction to deal with the appeal. However, for the reasons set out in Sala , there is no right of appeal against a refusal of a residence card to extended family members (EFMs).

That being so, there is no basis for a Tribunal seeking to exercise the discretion. That is abundantly clear from established case law in Regulation 17(4).

Hence, even if Sala did not determine the outcome of the SSHD's challenge, I would still have allowed her challenge, as the FtT Judge was not entitled to allow the appeal outright. At most he would have been entitled to allow it insofar as remained outstanding before the SSHD to exercise her Regulation 17(4) discretion.

The appeal brought by the SSHD against the decision of the FtT Judge is granted.