EA/10631/2016 & Ors.

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The decision



Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/10631/2016
EA/10638/2016
EA/10640/2016


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 28th February 2018
On 2nd March 2018



Before

DEPUTY upper tribunal judge ROBERTS


Between

adnan [m]
asifa [a]
[a a]
(ANONYMITY DIRECTION not made)
Appellant
and

entry clearance officer (pakistan)
Respondent


Representation:
For the Appellant: M-R Solicitors, South Woodford
For the Respondent: Ms Fujiwala, Senior Home Office Presenting Officer


DECISION AND REASONS
1. The Appellants, who are a family of three and are citizens of Pakistan, appealed against a decision of the Respondent, made on 2nd August 2016 refusing their applications for residence cards as extended family members of an EEA national exercising treaty rights in the United Kingdom. Their appeals were dismissed by the First-tier Tribunal. This was on the basis that it had been established by the reported decision in Sala (EFMs: right of appeal) [2016] UKUT 00411 (IAC) that the Tribunal had no jurisdiction to entertain the appeals.
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 that it was an error of law for the First-tier Tribunal to dismiss the appeals for want of jurisdiction.
4. This means that these appeals have not yet started their process through the First-tier Tribunal and therefore there remain outstanding triable issues which need to be resolved. The Appellants' appeals to the Upper Tribunal are therefore allowed to the extent that the appeals are remitted to the First-tier Tribunal to be determined fully on their merits. Both representatives who appeared before me were in agreement that this is the proper course.

Decision

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

The appeals to the Upper Tribunal are therefore allowed to the extent that these appeals are remitted to the First-tier Tribunal (not Judge S J Clarke) to be determined on their merits.

No anonymity direction is made.


Signed C E Roberts Date 01 March 2018

Deputy Upper Tribunal Judge Roberts