(Immigration and Asylum Chamber) Appeal Number: EA/08872/2016
THE IMMIGRATION ACTS
Heard at Field House
Decision & Reasons Promulgated
on 28 November 2018
on 30 November 2018
UPPER TRIBUNAL JUDGE blum
(anonymity direction NOT MADE)
ENTRY CLEARANCE OFFICER
For the Appellant: Mr Bhhuiyan, of Universal Solicitors
For the Respondent: Mr S Kandola, Senior Home Office Presenting Officer
DECISION AND REASONS
1. In a decision promulgated on 10 August 2017 Judge of the First-tier Tribunal Herlihy concluded that she had no jurisdiction to entertain the appellant's appeal against the respondent's decision dated 16 June 2016 to refuse her application for an EEA Family Permit pursuant to the Immigration (European Economic Area) Regulations 2006. Judge Herlihy's decision relied on the Upper Tribunal decision of Sala  UKUT 0411. This was overturned by the Court of Appeal in Khan v Secretary of State for the Home Department  EWCA Civ 1755.
2. In the light of Khan the First-tier Tribunal was wrong in law to conclude that it did not have jurisdiction to hear the appeal.
3. The Upper Tribunal is consequently satisfied that the First-tier Tribunal's decision is marred by a material legal error (the unlawful view that it lacked jurisdiction).
Notice of Decision
The First-tier Tribunal decision is vitiated by a material error of law. The case is remitted back to the First-tier Tribunal for a fresh (de novo) hearing, before a judge other than judge of the First-tier Tribunal Herlihy.
28 November 2018
Upper Tribunal Judge Blum