Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/01090/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 8 January 2018
On 17 January 2018

Before

DEPUTY UPPER TRIBUNAL JUDGE DOYLE

Between

SAMUEL ENCHILL
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Griffith-Anteson of Frederick Rine, solicitors
For the Respondent: Ms A Everett, Senior Home Office Presenting Officer

DECISION AND REASONS
1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.
2. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Carroll promulgated on 2 May 2017, which dismissed the Appellant's appeal on all grounds.

Background
3. The Appellant was born on 11 August 1976 and is a national of Ghana. On 20 January 2016 the Secretary of State refused the Appellant's application for a residence card as an extended family member of an EEA national.

The Judge's Decision
4. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Carroll ("the Judge") dismissed the appeal against the Respondent's decision. Grounds of appeal were lodged and on 10 November 2017 Judge Grant-Hutchison gave permission to appeal stating
"It is arguable that the Judge has erred in law for although the Judge correctly applied the case of Sala (EFM's right of appeal) [2016] UKUT 41 at the time of promulgation of the decision and reasons, the case has been overturned by Khan v SSHD [2017] EWCA Civ 1755 which was issued on 9 November 2017."

The Hearing
5. (a) Mr Griffith-Anteson, for the appellant, moved the grounds of appeal. He told me that the appellant had previously been granted a residence card as an extended family member of an EU partner exercising treaty rights in the UK, so that his application was for confirmation of his right to permanent residence in the UK. He told me that the case of Sala (EFM's right of appeal) [2016] UKUT 41 had limited relevance. He referred me to reg. 24 of the Immigration (EEA) Regulations 2006 and argued that the respondent should have treated the appellant as a family member for the purpose of regulation 7(3) of the 2006 regulations.
(b) Mr Griffith-Anteson relied on Khan v SSHD [2017] EWCA Civ 1755. He reminded me that the Judge dismissed the appeal relying solely on Sala (EFM's right of appeal). He told me that the Judge was wrong to find that the appellant did not have a right of appeal against the respondent's decision. He urged me to allow the appeal and to remit the case to the First-tier so that the substance of the appellant's appeal could be considered.
6. Ms Everett for the respondent agreed that the case of Khan v SSHD [2017] EWCA Civ 1755 was against her, and accepted that it would be appropriate to remit this case to the First-tier.

Analysis
7. The Judge's decision was (quite simply) that he had no jurisdiction to consider the appellant's case relying entirely on Sala (EFM's right of appeal). The First-tier hearing took place on 19 April 2017. The Judge's decision was promulgated on 2 May 2017. Six months later, on 9 November 2017, the decision in Khan v SSHD was issued.
8. In Khan v SSHD [2017] EWCA Civ 1755 the Court of Appeal held that Sala (EFMs: Right of Appeal ) [2016] UKUT 411 (IAC) was wrongly decided and that the decision whether to grant an extended family member a residence card was a decision which concerned an entitlement as it was a decision whether to grant such an entitlement and hence an "EEA decision" for the purpose of the 2006 regulations. Extended family members do therefore, under the 2006 regulations have a right of appeal to the tribunal from an adverse decision.
9. I have to find that the decision is tainted by material error of law because the appellant has a valid right of appeal. As the decision is tainted by material error of law I must set it aside. I am asked to remit this case to the First -tier. I consider whether or not I can substitute my own decision. The substance of the appellant's appeal has not yet been considered. The initial judicial fact-finding process has not been carried out and there is insufficient information before me to enable me to substitute my own decision. I remit this case to the First-tier because of the extent of the fact-finding exercise necessary.

Remittal to First-Tier Tribunal
10. Under Part 3 paragraph 7.2(b) of the Upper Tribunal Practice Statement of the 25th of September 2012 the case may be remitted to the First-tier Tribunal if the Upper Tribunal is satisfied that:
(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party's case to be put to and considered by the First-tier Tribunal; or
(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal.
11. In this case I have determined that the case should be remitted because a new fact-finding exercise is required. None of the findings of fact are to stand and a complete re-hearing is necessary.
12. I remit this case to the First-tier Tribunal sitting at Taylor House to be heard before any First-tier Judge other than Judge Carroll.

Decision
13. The decision of the First-tier Tribunal is tainted by a material error of law.
14. I set aside the Judge's decision promulgated on 2 May 2017. The appeal is remitted to the First-tier Tribunal to be determined of new.

Signed Paul Doyle Date 12 January 2018

Deputy Upper Tribunal Judge Doyle