EA/09043/2016

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The decision



Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: EA/09043/2016


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 27 March 2018
On 06 April 2018


Before

DEPUTY UPPER TRIBUNAL JUDGE FROOM


Between

MUSBAUDEEN AKINLOYE OKIJI
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Representation:
For the Appellant: Mr L Kareem, Solicitor
For the Respondent: Mr C Avery, Senior Home Office Presenting Officer


DECISION AND REASONS ON ERROR OF LAW
1. The appellant's appeal brought under Regulation 26 of the Immigration (European Economic Area) Regulations 2006 against the decision of the respondent date 18 July 2016 to refuse him a residence card acknowledging his right of residence as an extended family member (durable relationship) of an EEA national was dismissed by the First-tier Tribunal, which considered it did not have jurisdiction to hear the appeal in line with the decision in Sala (EFMs: Right of Appeal) [2016] UKUT 00411 (IAC).
2. It is now clear that Sala was wrongly decided: see Khan v SSHD & Anr [2017] EWCA Civ 1755. It follows that the First-tier Tribunal, whilst it applied the law as it was then understood to be, made a material error of law. The decision is set aside.
3. The representatives were in agreement that the appeal should be remitted to the First-tier Tribunal for a fresh hearing before another judge. Having considered the Senior President's Practice Direction of 15 September 2012, I make an order under section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.
4. The appeal will be reheard in the First-tier Tribunal so that the appellant can present his evidence and arguments to show whether or not be can bring himself within Regulation 8(5) of the EEA Regulations. If the appellant succeeds in showing he comes within Regulation 8(5), it will then be necessary for the respondent to consider whether to grant a residence card under Regulation 17(4).
5. No section 120 notice was served in this case. To the extent the First-tier Tribunal declined to hear the appellant's human rights arguments, it did not err in law: see Amirteymour v SSHD [2017] EWCA Civ 353. For the avoidance of doubt, therefore, the appellant may not raise human rights arguments in the remitted appeal.
Notice of Decision

The Judge of the First-tier Tribunal made a material error of law and his decision dismissing the appeal is set aside. The appeal is remitted to the First-tier Tribunal to be reheard by another judge.

No anonymity direction is made.


Signed Date 27 March 2018

Deputy Upper Tribunal Judge Froom