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

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: EA/03797/2015

 

THE IMMIGRATION ACTS

Heard at Field House	Decision & Reasons Promulgated
On 18 January 2018	On 12 February 2018

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE HANBURY

 

 

Between

 

mr evans Akogu amana

(ANONYMITY DIRECTION NOT MADE)

Appellant

 

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

Representation :

 

For the Appellant: M A Consultants

For the Respondent: Mr Tarlow, Home Office Presenting Officer

 

 

DECISION AND REASONS

Introduction

 

1. The appellant is a citizen of Nigeria, born on 14 May 1971. He appeals to the Upper Tribunal with permission from Judge of the First-tier Tribunal Brunnen given on 13 October 2017. Judge Brunnen decided that the reason for deciding the appeal to the First-tier Tribunal against the appellant (based on the case of Sala [2016] UKUT 416 (IAC)) was arguably wrong. Accordingly, Judge Brunnen granted permission to appeal to the Upper Tribunal.

 

2. The Upper Tribunal was referred to the case of Khan v Secretary of State for the Home Department [2017] EWCA Civ 1755 by Mr Tarlow, who represents the respondent. According to that case Sala was wrongly decided. In Khan the Court of Appeal decided the First-tier Tribunal had jurisdiction to hear an appeal from a refusal by the Secretary of State to issue a residence card, for example, to an extended family member. The appellant in this case claims to have established a relationship with a Polish national called Teresa Baleyzer. Having established such a relationship, the appellant applied for a permanent resident card and, following refusal, appealed to the First-tier Tribunal.

 

3. At the hearing I was shown a fax of 23 November 2017 from the appellant's representatives, Messrs M A Consultants, indicating that they were in receipt of correspondence from the Home Office confirming that there was no objection to the matter being remitted back to the First-tier Tribunal for a fresh hearing. This was, presumably, in the light of the decision of the Court of Appeal in the case of Khan. The fax records that in her Rule 24 response the respondent has indicated that she does not oppose the application for permission to appeal to the First-tier Tribunal. I understand from Mr Tarlow that the basis for the consensual remittal of this matter is that the case of Khan, to which reference has been made.

 

4. I take into account the fact that there was no hearing before the First-tier Tribunal, and certainly no hearing on the merits, the appeal being dealt with on the papers. It is clear to me having regard to the case of Khan that there was a material error by the First-tier Tribunal in determining that there was no right of appeal. I therefore find a material error of law in the decision of the First-tier Tribunal. It will be necessary to hold a de novo hearing in front of any judge of the First-tier Tribunal.

 

5. I therefore direct that this matter be remitted to the First-tier Tribunal to be heard by any judge of that tier. All additional directions will be made by the First-tier Tribunal.

 

Notice of Decision

 

The appeal is allowed.

 

I direct that the appeal against the decision of the respondent to refuse to issue a residence card be remitted to the First-tier Tribunal.

 

No anonymity direction is made.

 

 

 

Signed Date 07 February 2018

 

 

Deputy Upper Tribunal Judge Hanbury

 

TO THE RESPONDENT

FEE AWARD

 

As I have allowed the appeal and because a fee has been paid or is payable, I have considered making a fee award but have decided to make no fee award

 

 

 

Signed Date 07 February 2018

 

 

Deputy Upper Tribunal Judge Hanbury