EA/00681/2016

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The decision



Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/00681/2016


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
Oral determination given following hearing

On 11 January 2018
On 1 March 2018


Before

DEPUTY UPPER TRIBUNAL JUDGE MCGINTY
UPPER TRIBUNAL JUDGE CRAIG


Between

mr mohamed rishad jamaldeen
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Representation:
For the Appellant: Mr I Khan, Counsel instructed by Courtland Solicitors
For the Respondent: Mr T Melvin, Senior Presenting Officer


DECISION AND REASONS
1. The appellant in this case appeals against a decision made by the First-tier Tribunal (Judge Howard) who in a decision and reasons promulgated on 30 August 2017 dismissed the appellant's appeal against the respondent's decision to reject his EEA residence card application as an extended family member. The basis of the decision was that relying on the decision of this Tribunal in Sala (EFMs: Right of Appeal) [2016] UKUT 00411 (IAC) the judge considered that he lacked jurisdiction to hear the appeal because there was no statutory right of appeal against a decision of the respondent not to grant a residence to a person claiming to be an extended family member.
2. The Court of Appeal in Khan v SSHD [2017] EWCA Civ 1755 has decided that the decision in Sala was incorrect and that there is a statutory right of appeal in these circumstances. It follows that the First-tier Tribunal's decision contained a material error of law and that the decision must now be re-made. In these circumstances the appropriate course is to remit this appeal back to the First-tier Tribunal to be heard by any judge other than First-tier Tribunal Judge Howard.
Decision

The decision of the First-tier Tribunal that there was no statutory right of appeal contained a material error of law and the appeal is remitted to be re-heard by the First-tier Tribunal, sitting at Hatton Cross (or such other hearing centre as shall be directed) by any judge other than First-tier Tribunal Judge Howard.



Signed:


Upper Tribunal Judge Craig Date : 25 February 2018