United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Numbers: EA/03917/2015

EA/03925/2015

EA/03928/2015

EA/03931/2015

 

THE IMMIGRATION ACTS

 

Heard at Field House	Decision & Reasons Promulgated
On 2 nd February 2018	On 25 th April 2018

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE WOODCRAFT

 

Between

 

MR ABDUL WAQAR - 1 ^st Appellant

MS KASHMALA GUL - 2 ^nd Appellant

UF - 3 ^rd Appellant

AB - 4 ^th Appellant

(ANONYMITY ORDERS NOT MADE)

Appellants

 

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

 

Representation :

 

For the Appellants: Mr S Ahmed of Counsel

For the Respondent: Mr T Wilding, Home Office Presenting Officer

 

DECISION AND REASONS

 

The Proceedings

 

1.              The Appellants are all citizens of Pakistan. The first Appellant was born on 20 ^th of March 1983 and the 2 ^nd Appellant was born on 7 ^th of September 1984. They are married to each other and the 3 ^rd and 4 ^th Appellants are their children born on 4 ^th of March 2012 and 17 ^th of October 2014 respectively. The 1st Appellant entered the United Kingdom as a student in July 2010 and the 2 ^nd Appellant joined him here as a student dependent in June 2011. She gave birth to both children in this country. In June 2015 the Appellants applied for residence cards on the grounds that the 1st Appellant's maternal uncle, a Belgian citizen, had supported him financially in Pakistan and continue to support him financially in the United Kingdom. The Appellants were also members of the uncle's household in this country.

 

2.              The applications were refused by the Respondent on 7 ^th of December 2015 because there was said to be insufficient evidence of prior and present dependency upon an EEA national sponsor and insufficient evidence of membership of the household of that EEA national sponsor.

 

3.              The Appellant's appeal against that decision came before Judge of the First-tier Tribunal Monson sitting at Taylor House on 16 ^th of March 2017. He found that there was no right of appeal against the Respondent's decision following the Upper Tribunal authority of Sala [2016] UKUT 411. That decision held that where an applicant was making an application for a residence card under Regulation 8 of the EEA Regulations 2006 as an extended family member the Regulations did not give a right of appeal because there was no entitlement to a residence card by an applicant under Regulation 8, it was a discretionary provision.

 

4.              Subsequently that decision was overturned by the Court of Appeal in the case of Khan [2017] EWCA Civ 1755. The Court of Appeal found that on their true construction the 2006 Regulations did provide for a right of appeal. Although the judgement in Khan was handed down on 9 ^th of November 2017 some seven months after the First-tier Tribunal hearing in this case because the decision was to find that the 2006 Regulations had always provided for a right of appeal the First-tier decision in this case was retrospectively invalidated.

 

5.              Following the dismissal of the appeals for want of jurisdiction the Appellants had appealed that decision and permission to appeal was granted by Judge of the Upper Tribunal Jordan on 19 ^th of December 2017 on the basis of the clarification of the meaning of the 2006 Regulations in Khan.

 

6.              When the matter came before me to determine whether there was a material error of law in the determination, I indicated that I considered there was (because of the decision in Khan) and neither party disputed that. Both parties agreed that the correct course of action was to remit this appeal back to the First-tier Tribunal with no findings preserved for the matter to be re-determined. I therefore set aside the decision of the First-tier Tribunal on the grounds of material error of law and I remit the case back to the First-tier Tribunal to be reheard with no findings preserved.

 

 

 

 

 

Notice of Decision

 

The decision of the First-tier Tribunal involved the making of an error of law and I have set it aside. I remit the appeal back to the First-tier Tribunal to be reheard by any Judge other than Judge Monson.

 

Appellant's appeal allowed to the extent stated

 

I make no anonymity order as there is no public policy reason for so doing.

 

 

Signed this 2 ^nd of February 2018

 

 

.......................................................

Judge Woodcraft

Deputy Upper Tribunal Judge

 

 

 

TO THE RESPONDENT

FEE AWARD

 

I set aside the decision not to make a fee award in this case. That issue will also have to be re-determined by the First-tier.

 

Signed this 2 ^nd of February 2018

 

 

.......................................................

Judge Woodcraft

Deputy Upper Tribunal Judge