EA/03928/2016

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The decision



Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/03928/2016


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 9th March 2018
On 27th March 2018



Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS


Between

mr Md Badrul Mustak
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Representation:
For the Appellant: Ms Z McCallum (Counsel), Londonium Solicitors
For the Respondent: Mr S Walker (Senior HOPO)


DECISION AND REASONS
1. The Appellant is a citizen of Bangladesh, a male, and was born on 10th September 1986. He appealed against the decision of the Respondent Secretary of State dated 21st March 2016, refusing his application for a residence card as confirmation of a right of residence, on account of being a family member of an EEA national, who is a qualified person. The application was considered in accordance with Regulation 8(2) of the Immigration (EEA) Regulations 2006. It was considered that the Appellant had made a claim as an extended family member, but that following the decision in Sala (EFMs: Right of Appeal) [2016] UKUT 00411, where it was found that there is no statutory right of appeal against the decision of the Secretary of State, not to grant a residence card, to a person claiming to be an extended family member, the Appellant had no right of appeal, and the appeal was accordingly dismissed for want of jurisdiction (see paragraph 7 of the determination by Judge Malcolm).
2. The Appellant sought permission to appeal, which was granted by the First-tier Tribunal on 5th January 2018, on the basis that the decision in Banger (Unmarried Partner of British National) [2017] UKUT 125, now suggested that the decision in Sala was unsustainable.
The Hearing
3. At the error of law hearing before me, both parties agreed that the matter fell to be decided on the basis that Sala was incorrectly decided. Both parties agreed that in the light of the decision in Khan v SSHD [2017] EWCA Civ 1755, the First-tier Tribunal was wrong in law to conclude that it did not have jurisdiction to hear the appeal with the result that the decision be set aside. I agreed. As the evidence is to be led it is appropriate that it be reheard in the First-tier.
Notice of Decision
4. The decision of the First-tier Tribunal involved the making of an error on a point of law. It is set aside and in terms of Section 12(2)(b)(i) of Tribunals, Courts and Enforcement Act 2007 and of practice statement 7.2, remitted to the First-tier Tribunal for a fresh hearing before a judge other than FTTJ Malcolm.
5. No anonymity direction is made.


Signed Date

Deputy Upper Tribunal Judge Juss 24th March 2018