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

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: EA/08766/2016

 

 

THE IMMIGRATION ACTS

 

 

At Field House	Decision & Reasons Promulgated
On 17 September 2018	On 18 September 2018
on the papers

 

 

Before

 

UPPER TRIBUNAL JUDGE O'CONNOR

 

 

Between

 

AZHAR IQBAL

(ANONYMITY DIRECTION NOT MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

 

DECISION AND REASONS

Introduction

1.              The appellant is a citizen of Pakistan born on 28 October 1978. He made an application to the Secretary of State for an EEA residence card. The application was refused in a decision dated 5 July 2016, for reasons that I need not set out herein.

Decision of the First-tier Tribunal

2.              The appellant lodged an appeal before the First-tier Tribunal. That appeal came before FtT Judge J Macdonald, who concluded in a decision sent on 11 September 2017, that the First-tier Tribunal did not have jurisdiction to determine the appeal. No findings were made in relation to the substance of the appeal. The Judge's conclusion was informed by the guidance given by this Tribunal in Sala [2016] UKUT 411.

3.              The appellant appealed such decision to the Upper Tribunal and FtT Judge Birrell granted permission in a decision sent on 20 April 2018. Thus, the matter comes before me.

Discussion

4.              The Court of Appeal has now given consideration to the very issue in play in the instant case - see Khan v Secretary of State for the Home Department [2017] EWCA Civ 1755. The Court concluded that the Upper Tribunal had been wrong in its conclusion and rationale in Sala. It is not in dispute that the effect of the decision in Khan, if applied to this case, is that the First-tier Tribunal was wrong to conclude that it did not have jurisdiction in this appeal.

5.              For this reason, I set aside the decision of the First-tier Tribunal and remit the appeal back to the First-tier Tribunal to be heard afresh.

 

Decision

 

The decision of the First-tier Tribunal is set aside.

 

The appeal is remitted to the First-tier Tribunal.

 

 

Signed: Dated: 17 September 2018

Upper Tribunal Judge O'Connor