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

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: EA/01950/2015

 

 

THE IMMIGRATION ACTS

 

 

Heard at Field House	Decision & Reasons Promulgated
On 3 rd April 2018	On 12 April 2018

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

 

 

Between

 

mr khalid mahmood

(ANONYMITY DIRECTION not made)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

 

Representation :

For the Appellant: Mr A Rana, Counsel

For the Respondent: Mr T Wilding, Home Office Presenting Officer

 

 

DECISION AND REASONS

1.              The Appellant is a citizen of Pakistan born on 4 ^th January 1972. The Appellant had applied for a residence card on the basis that he is an extended family member who has been dependent on his EEA national Sponsor/a dependent member of his EEA national Sponsor's household and continues to be so in the UK. His application was considered in accordance with Regulation 8(2) of the Immigration (EEA) Regulations 2006 and was refused on the basis that the Appellant sought a residence card as confirmation of a right to reside by Notice of Refusal dated 12 ^th October 2015.

2.              The Appellant appealed and the appeal came before Judge of the First-tier Tribunal Cohen sitting at Taylor House on 2 ^nd August 2017. In a decision and reasons promulgated on 10 ^th August 2017 the appeal was dismissed for want of jurisdiction on the basis that the Tribunal considered the decision under appeal to be one to which the guidance in the case of Sala (EFMs: right of appeal) [2016] UKUT 411 (IAC) applied.

3.              On 24 ^th August 2017 Grounds of Appeal were lodged to the Upper Tribunal. On 1 ^st February 2018 Judge of the First-tier Tribunal Beach granted permission to appeal.

4.              It is on that basis that the appeal comes before me. The Appellant appears by his instructed Counsel Mr Rana. The Secretary of State appears by her Home Office Presenting Officer Mr Wilding.

5.              It is accepted by both legal representatives that the decision in Sala was overturned by the decision of the Court of Appeal in Khan v Secretary of State for the Home Department [2017] EWCA Civ 1755 which confirmed that an extended family member did have the right of appeal to the First-tier Tribunal as an extended family member under the Immigration (European Economic Area) Regulations 2006.

6.              Consequently through no fault of his own the judge in following Sala made an error of law. This matter has never been aired before the Tribunal. In such circumstances it is agreed by both legal representatives that the correct approach is to set aside the decision and to remit the matter back to the First-tier Tribunal for rehearing.

Notice of Decision

 

(1)           On finding that the decision of the First-tier Tribunal discloses a material error of law the decision of the First-tier Tribunal is set aside.

(2)           The appeal is remitted back to the First-tier Tribunal sitting at Taylor House with an ELH of two hours to be heard before any judge of the First-tier Tribunal other than Immigration Judge Cohen.

(3)           That there be leave to either party to file and/or serve a copy of such objective and/or subjective evidence upon which either party relies at least seven days prior to the restored hearing.

(4)           That an Urdu interpreter do attend the restored hearing.

 

No anonymity direction is made.

 

 

Signed Date 11 April 2018

 

Deputy Upper Tribunal Judge D N Harris

 

 

 

 

TO THE RESPONDENT

FEE AWARD

 

No application is made for a fee award and none is made.

 

 

Signed Date 11 April 2018

 

Deputy Upper Tribunal Judge D N Harris