EA/00711/2016

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The decision



Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/00711/2016


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
24 November 2017
On 27 November 2017




Before

UPPER TRIBUNAL JUDGE KOPIECZEK


Between

Madiha bibi
(anonymity Direction Not Made)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent



DECISION AND REASONS

1. The appellant is a citizen of Pakistan and appeals against a decision of the respondent dated 31 December 2015 to refuse to issue a residence card as confirmation of a right of residence as an extended family member of an EEA national.
2. In a decision promulgated on 5 April 2017 a judge of the First-tier Tribunal ("FtT) dismissed the appeal for want of jurisdiction, concluding that in the light of Sala (EFMs: Right of Appeal) [2016] UKUT 00411 (IAC) the FtT did not have jurisdiction to consider the appeal.
3. Permission to appeal to the Upper Tribunal has been granted, and a hearing date of 21 December 2017 has been fixed. However, the parties are agreed that in the light of the decision of the Court of Appeal in Khan v Secretary of State for the Home Department [2017] EWCA Civ 1755, which found that Sala was wrongly decided, the First-tier Tribunal Judge ("FtJ") erred in law in concluding that the FtT had no jurisdiction to consider the appeal.
4. In the circumstances, and in the light of Khan, I am satisfied that the FtJ erred in law, that her decision should be set aside and that the appeal be remitted to the FtT for a hearing de novo. Plainly the FtJ was unaware of the decision in Khan, and applied the law as it was thought to be at the time she considered the matter.

Decision

The decision of the First-tier Tribunal involved the making of an error on a point of law. Its decision is set aside and the appeal remitted to the First-tier Tribunal for a hearing de novo before a judge other than First-tier Tribunal Judge Herlihy.






Upper Tribunal Judge Kopieczek dated 23/11/17