EA/03668/2016

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The decision


Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/03668/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 28th February 2018
On 11th April 2018



Before

DEPUTY upper tribunal judge ROBERTS

Between

saleem hussain mughal
(ANONYMITY DIRECTION not made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: No appearance
For the Respondent: Ms Fujiwala, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Pakistan, d.o.b. 10th February 1972. He appeals against a decision of the Respondent, made on 3rd March 2016, to refuse his application for a residence card as an extended family member of an EEA national exercising treaty rights in the United Kingdom. His appeal was dismissed by the First-tier Tribunal. This was on the basis that it was established by the reported decision in Sala (EFMs: right of appeal) [2016] UKUT 00411 (IAC) that the Tribunal had no jurisdiction to entertain the appeal.
2. It has now been held that Sala was wrongly decided. There is indeed a right of appeal to the First-tier Tribunal against decisions taken by the Respondent refusing applications pursuant to the Immigration (EEA) Regulations 2006, as decided by the Court of Appeal in Khan v SSHD [2017] EWCA Civ 1755.
3. The decision under challenge in the present proceedings was taken pursuant to the 2006 Regulations. Therefore it follows it was an error of law for the First-tier Tribunal to dismiss the appeal for want of jurisdiction.
4. This means that the appeal has not yet started its process through the First-tier Tribunal and therefore there remains outstanding a triable issue which needs to be resolved. The appeal to the Upper Tribunal is allowed therefore to the extent that the appeal is remitted to the First-tier Tribunal to be determined fully on its merits.

Decision

In dismissing the appeal for want of jurisdiction the First-tier Tribunal materially erred in law.

The appeal to the Upper Tribunal is therefore allowed to the extent that this appeal is remitted to the First-tier Tribunal (not Judge I. Howard) to be determined on its merits.

No anonymity direction is made.






Signed C E Roberts Date 01 March 2018


Deputy Upper Tribunal Judge Roberts