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

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: EA/08875/2016

 

THE IMMIGRATION ACTS

 

Heard at Field House	Decision and Reasons Promulgated
On 27 March 2018	On 11 May 2018

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE MURRAY

 

Between

 

WAWALAGE SHASHI RUWANTHA FERNANDO

(anonymity direction not made)

Appellant

 

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

Representation :

 

For the Appellant: No Appearance

For the Respondent: Mr Nath, Home Office Presenting Officer

 

 

DECISION AND REASONS

 

1.              The appellant is a citizen of Sri Lanka born on 22 November 1986. He appealed against the decision of the respondent dated 7 July 2016 refusing to grant him a residence card as an extended family member (unmarried) of an EEA national in accordance with Regulation 8 of the Immigration EEA Regulations 2006 as amended.

 

2.              The appeal was heard by Judge of the First-Tier Tribunal Colvin on 23 August 2017 and dismissed for want of jurisdiction in a decision promulgated on 25 August 2017. The case was dismissed based on the case of Sala [2016] UKUT 411 (IAC).

 

3.              The Sala decision has been found to be wrong and permission to appeal was granted by Judge of the First-Tier Tribunal Swaney on 1 February 2018. This states that in light of the decision of the Court of Appeal in Khan [2017] EWCA Civ 1755 the grounds disclose an arguable and material error of law in the Judge's decision.

 

4.              There was no Rule 24 response.

 

5.              There was no appearance by the appellant or a representative on his behalf. Neither did his sponsor and partner Miss Justyna Zycka appear, however the Presenting Officer submitted that there is a material error of law as a result of the decision in the said case of Khan. He also submitted that as there has been no decision to remove there is no human rights appeal.

 

Decision

 

6.              As the case of Sala has been overturned the appellant's claim requires to be re-heard as this has resulted in there being a material error of law in the First-tier Tribunal's decision, promulgated on 25 August 2017.

 

7.              I direct that this claim is remitted to the First-Tier Tribunal for re-hearing and that Judge Colvin's decision promulgated on 25 August 2017 must be set aside. None of its findings are to stand other than as a record of what was said on that occasion. It is appropriate in terms of Section 12(2)(b)(i) of the 2007 Act and Practice Statement 7.2 to remit the case to the First-Tier Tribunal for an entirely fresh hearing.

 

8.              Members of the First-Tier Tribunal chosen to consider the case are not to include Judge Colvin.

 

9.              Anonymity has not been directed.

 

 

 

 

 

 

Signed Date 04 May 2018

 

Deputy Upper Tribunal Judge Murray