EA/08672/2016

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The decision



Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/08672/2016


THE IMMIGRATION ACTS


On the papers at Field House
Decision and Reasons Promulgated
on 9 April 2018
On 12 April 2018


Before

UPPER TRIBUNAL JUDGE HANSON


Between

SALEEM RAZA
(anonymity direction not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Upon reading the grant of permission to appeal to the Upper Tribunal and upon reading the respondent's email of 9 April 2018


ERROR OF LAW FINDING AND REASONS

1. The appellant appeals with permission against a decision of First-tier Tribunal Judge Aziz who, on 28 July 2017, dismissed the appellant's appeal for want of jurisdiction.
2. The appellant has appealed against the respondent's refusal to grant a Residence Card as confirmation of a right of residence in the United Kingdom as an extended family member of an EEA national.

Error of law

3. The Judge found the First-tier Tribunal had no jurisdiction in light of the decision in the case of Sala[ 2016] UKUT 00411.
4. Although not before the Judge at the time, the Court of Appeal in the case of Khan [2017] EWCA Civ 1755 found that Sala was wrongly decided. Although this decision post-dates the determination under challenge it relates to a situation that existed at the date the First-tier Tribunal found as it did, which is in relation to a legal position which has been found to be always unsustainable.
5. The respondent in the email of 9 April 2018 notes that in light of Khan and the decision of the Supreme Court in SM (Algeria) [2018] UKSC 9, the permission application is not opposed and it is requested the Upper Tribunal deals with the matter under Rule 39 and remits the matter back to the First-tier Tribunal without the need for parties to attend the Initial hearing listed for 10 April 2018.
6. According, I find the First-tier Tribunal erred in law in a manner material to the decision they had no jurisdiction to hear the appeal.
7. The Upper Tribunal sets aside the decision of the First-tier Tribunal, vacates the Initial hearing listed for 10 April 2018 as the same is no longer required, and substitutes a decision remitting the appeal to the First-tier Tribunal to be heard on its merits. The appellant has not yet had the opportunity of an appeal at which proper findings of fact are made by that Tribunal.

Decision

8. The First-tier Tribunal Judge materially erred in law. I set aside the decision of the original Judge. I remit the appeal to the First-tier Tribunal sitting at Hatton Cross to be heard by a Judge of that Tribunal on its merits.

Anonymity.

9. The First-tier Tribunal did not make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

I make no such order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.


Signed??????????????????.
Upper Tribunal Judge Hanson

Dated the 9 April 2018