EA/01599/2016

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The decision


Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/01599/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 February 2018
On 14 February 2018



Before

DEPUTY UPPER TRIBUNAL JUDGE PEART

Between

Mr arshad zeeshan
(anonymity direction not made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Representation:

For the Appellant: None
For the Respondent: Mr Mills, Senior Home Office Presenting Officer


DECISION AND REASONS

1. The appellant is a citizen of Pakistan. He was born on 8 April 1989.
2. He appealed against the respondent's decision to refuse to issue him with a residence card as the alleged extended family member of an EEA national.
3. In a decision promulgated on 21 June 2017, Judge Kelly (the judge) found there was no valid right of appeal and dismissed the appeal for want of jurisdiction.
4. The grounds claimed the judge erred. As Sala was in the Court of Appeal there was a request to "hold the decision" otherwise it would lead to JR proceedings.
5. Judge Chamberlain granted permission on 28 November 2017. He said that subsequent to the application being made the Court of Appeal held in Khan [2017] EWCA Civ 1755 that a decision to refuse to issue a residence card to an extended family member was an EEA decision and therefore could be appealed to the First-tier Tribunal in the ordinary way.
6. There was no Rule 24 response.
Submissions on Error of Law
7. Mr Mills asked me to adjourn the hearing pending the appeal of Khan which I refused.
Conclusion on Error of Law
8. In light of Khan, Judge Chamberlain granted permission to appeal on the basis that it was arguably wrong for the judge to have concluded that he did not have jurisdiction to hear the appeal.
9. The judge through no fault of his own erred in law for the reasons set out in Khan. Accordingly, the First-tier Tribunal does have jurisdiction to determine the appeal and therefore the decision to the contrary of the judge is set aside.
10. The appeal be remitted to the First-tier Tribunal to allow a substantive consideration of the appeal.

Notice of Decision
11. The making of the decision of the First-tier Tribunal involved a material error of law. I set aside the decision of the First-tier Tribunal and remit the appeal for a de novo hearing.
12. No anonymity direction is made.






Signed Date 12 February 2018


Deputy Upper Tribunal Judge Peart