Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/01182/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 19 March 2018
On 17 April 2018

Before

DEPUTY UPPER TRIBUNAL JUDGE MONSON

Between

mr asad afzal
(anonymity direction not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr G. Sarkar, Counsel instructed by Adam Bernard Solicitors
For the Respondent: Ms A. Everett, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant appeals to the Upper Tribunal ("UT") from the decision of the First-tier Tribunal ("FtT") promulgated on 3 April 2017 dismissing his appeal against the decision by the SSHD to refuse to issue him with a residence card as confirmation of his right to reside in the United Kingdom as the unmarried partner of an EEA national exercising treaty rights here. The FtT did not make an anonymity order, and I do not consider that such an order is warranted for these proceedings in the UT.

Relevant Background
2. The application was refused because the respondent was not satisfied that the appellant was in a durable relationship with his sponsor, or that the sponsor was exercising treaty rights as a worker.
The Decision of the First-tier Tribunal
3. Judge Feeney dismissed the appeal on the ground that she had no jurisdiction to hear an appeal by a person claiming to be an extended family member, following Sala (EFMs: Right of Appeal) [2016] UKUT 411 (IAC).
Discussion
4. The law has been clarified since the appeal was heard in the First-tier Tribunal. In Khan v SSHD [2017] EWCA Civ 1755 the Court of Appeal held that Sala was wrongly decided, and that the appellant had a right of appeal to the FtT against the decision to refuse to issue him with a residence card as an extended family member under Regulation 8.
5. The law always speaks, and so Judge Feeney was wrong in retrospect to hold that she had no jurisdiction, although at the time she had no choice but to follow the decision of the UT which was binding on her. The upshot is that the appellant has been deprived of a fair hearing in the FtT, and the representatives are in agreement that the appeal should be remitted to the FtT for a de novo hearing.
6. In his application for permission to appeal, the appellant relied on the fact that he was now a direct family member of the sponsor, as they had got married. So the issues at the fresh hearing will be (a) whether the appellant is a family member of an EEA national (direct or extended); and (b) whether the EEA national sponsor is exercising treaty rights.
Notice of Decision
7. The decision of the FtT contained an error of law, such that it must be set aside in its entirety and remade.
Directions
8. This appeal is remitted to the FtT at Taylor House for a de novo hearing (Judge Feeney incompatible).
9. The agreed time estimate is two hours
Anonymity
No anonymity order is made.

Signed Date 14 April 2018

Deputy Upper Tribunal Judge Monson