SALA OVERTURNED BY COURT OF APPEAL NO LONGER GOOD LAW

[avjones]

Sala is an extremely.... strange..... decision.

However, in practical terms, dealing with it:

1. Any FTT Judge / HOPO aware of it will raise it, meaning there is no jurisdiction. In my experience, and having asked in Chambers, this is happening almost all the time. So if there is an outstanding appeal you must anticipate that, unless and until the law changes, the appeals will be struck out.

2. Of those Upper Tribunal cases I've heard of, again, jurisdiction has been declined.

3. I gather than Sala will not be taken to the Court of Appeal itself, by either side, but of course it is HIGHLY likely to go zooming upwards on another similar case quickly.

4. New EFM cases are still often being sent out with appeal forms. The HO have updated their guidance on their website, but in several cases in the past week I've heard of appeal forms being sent anyway.

5. It makes it MUCH more important to do a good application in the first place.

6. The only remedy for the moment will be Judicial Review, not appeal.

[avjones]

Please desist from writing in capital letters.

I am not sure if I can give more than I have already given.

It is a shame in your case, that matter is at Ftt. Due to the fact that mine was at the Upper Tribunal with permission, I am able to appeal to the court of appeal.

If my argument succeeds, it will benefit you aswell.


You will be able to challenge via JR if the FTT refuse to hear the case.

If your UT Judge says in writing that, but for Sala, he would have allowed the appeal, wouldn't a fresh application be better / quicker / cheaper?

[Obie]

No a fresh application will not matter as the Secretary of State may say they are not bound by it , as there was no jurisdiction.

I have indeed sent a PAP and applied for permission to the court of appeal, and also new application.

This individual has been treated so badly buy the Home Office, to the extent that, i have no intention to be complacent. All cards are on the table.

[Obie]

For people whose cases are at the Upper Tribunal, i am doubtful that JR is an option.

In law there is a remedy to appeal to the court of appeal, the Home office may seek to resist it on the basis of the availability of an alternate remedy.

[vinny]

Sala is an extremely.... strange..... decision.

Yes. It's strange that they only appointed a third counsel, who was specifically instructed to argue that there was no right of appeal. Then the judges decided that she was indeed correct and there was no right of appeal…

Why didn't they appoint a forth counsel who was specifically instructed to argue that there was a right of appeal, so they could consider both sides of the argument, without bias?

[Obie]

It was like a kangaroo court. There was a total breakdown of fair procedure. It is clear the Upper Tribunal was seeking to play the role of the legislatur . This decision has the potential of bringing the tribunal system into disrepute.

One thing that keep the up at night is the believe that i may be able to play a role in having this unfair judgement rescinded.

[avjones]

No a fresh application will not matter as the Secretary of State may say they are not bound by it , as there was no jurisdiction.

A finding of fact by the judge that he would have allowed the appeal but for Sala and jurisdiction would create a strong irrationality challenge in the event the HO rejected the application.

[avjones]

It's extremely strange for all sorts of reasons, including those mentioned above by Vinnie and Obie.

Obie, is your recent UT case reported?

[Obie]

My views are aligned to yours. We will see, the Senior Presenting officer at the hearing indicated that provisions have been made for people affected , who would have succeeded.

However within 2 weeks the individual was approached and asked to present himself for ETD. I consider this approach in a very serious light, and hence the subsequent steps i decided to take.

The Upper Tribunal judge was upset about the decision in Sala, he mentioned 2 decision in the regulations which involves the exercise of discretionary powers, but the question of whether an appeal right exist has never been an issue.

He acknowledged correctly , and accepted my submission that he is not bound by Sala and could choose not to follow it, but he then appear to fall into error, by saying it is a decision where the deputy president was part of the panel and therefore he will not follow my submission.

He then dismissed my appeal for lack of jurisdiction. To say i am upset will be an understatement. I am furious. It is a total outrage.

[avjones]

I think your ire is better directed at Ockleton than your own UT judge, but there's plenty to spare all round. It's a complete mess.

[avjones]

My views are aligned to yours. We will see, the Senior Presenting officer at the hearing indicated that provisions have been made to people affected , who would have succeeded.

However within 2 weeks the individual was approached and asked to present himself for ETD. I consider in a very serious light, and hence the subsequent steps i decided to take.

Watch out for the whole "non-suspensive" thing with ETD, though. Even if your appeal is pending before the Court of Appeal, the (recent) non-suspensive idea means no automatic protection from removal.

[Obie]

I am upset with him because he acknowledged that unlike an Ftt judge, he is not bound by Sala, he acknowledged the shortcomings in Sala, but then do something else.
If you read the determination you will think the individual has succeeded until you hit the penultimate paragraph, then you get more furious, as the reasoning and discussion is inconsistent with the conclusion.

So strange. If this is what being a judge entails, then i clearly dont aspire to be one.

[avjones]

Is it reported?

I certainly never want to be a judge.

[Obie]

Watch out for the whole "non-suspensive" thing with ETD, though. Even if your appeal is pending before the Court of Appeal, the (recent) non-suspensive idea means no automatic protection from removal.

I understand that, but in light of the comments of the Upper Tribunal, and the fact that the EEA national has Permanent Residence, I am confident that we can mount a strong convention right claim against removal.

I also believe the Court of Appeal, which has jurisdiction of the matter will issue a stay, in the light of the views expressed by the Upper Tribunal Judge.

[Obie]

Is it reported?

I certainly never want to be a judge.

It may be on the unreported decision. It will make no sense for the reporting committee to approve my case for reporting.

[avjones]

Watch out for the whole "non-suspensive" thing with ETD, though. Even if your appeal is pending before the Court of Appeal, the (recent) non-suspensive idea means no automatic protection from removal.

I understand that, but in light of the comments of the Upper Tribunal, and the fact that the EEA national has Permanent Residence, I am confident that we can mount a strong convention right claim against removal.

I also believe the Court of Appeal, which has jurisdiction of the matter will issue a stay, in the light of the views expressed by the Upper Tribunal Judge.

I think you'd have a very good application for a stay in your case.

Good luck.

[Frank001]

I am upset with him because he acknowledged that unlike an Ftt judge, he is not bound by Sala, he acknowledged the shortcomings in Sala, but then do something else.
If you read the determination you will think the individual has succeeded until you hit the penultimate paragraph, then you get more furious, as the reasoning and discussion is inconsistent with the conclusion.

So strange. If this is what being a judge entails, then i clearly dont aspire to be one.

it is really frustrating .i don't know what will be the outcomes for my case its in FTT.judge seemed positive on my case .it is going to be refused because of sala or they have options ?
i got my appeal right and date before this rules what about this one year i was waiting ?

[Obie]

In all honesty, i dont think the judge will do anything other than dismiss the appeal for lack of jurisdiction.

It is unfortunate, but i have not found a case that have succeeded since Sala.

[Frank001]

In all honesty, i dont think the judge will do anything other than dismiss the appeal for lack of jurisdiction.

It is unfortunate, but i have not found a case that have succeeded since Sala.

what is the better option fresh application or JR or any other option?

[mohsin1]

Frank001 you just have wait only one year for hearing.
its my 4th hearing so think ho w long i had wait.this is my 4th time apearing on the court at novembr..
this is a adjournd hearing which is prevously postone due tosone reason my last hearing which was adjournd on july when there is appeal right and now when i go for a hearing now the rule is no right of appeal...
i was on court since 2014..

[Frank001]

Frank001 you just have wait only one year for hearing.
its my 4th hearing so think ho w long i had wait.this is my 4th time apearing on the court at novembr..
this is a adjournd hearing which is prevously postone due tosone reason my last hearing which was adjournd on july when there is appeal right and now when i go for a hearing now the rule is no right of appeal...
i was on court since 2014..

sorry to hear that .did u apply for unmarried partner visa ?what r u going to do now ?

[Obie]

Sala case comes in different shapes and size.

It all depends on the case.

My Upper Tribunal was relationship of convenience , which the UT said was non-sense, as the evidence does not support the FTT decision to side with the Home Office.

It depends on the nature of your case. If it was lack of treaty rights or supporting documents, then perhaps a new application.

[avjones]

I spent a good percentage of my day talking about Sala. grrrrrr. So many clients who were (perfectly properly) told one thing, and now, months or years later, it's all totally changed with no warning. It doesn't seem fair or right.

[Obie]

Absolutely. This victim i am assisting has spend over 8k on his case. Many of his previous lawyers say don't appeal , I did not agree, as my policy is always to challenge claims of sham relationships. He was happy when I permission was granted and the comments made about the grounds by the permission judge. Then came sala. I could not find the mouth with which to tell him. However I sum up courage to tell him before he hears it in court.

I feel it is totally unacceptable. After 10 years. Some pepole have spent thousands, and then you say no appeal. Unbelievable.

[avjones]

there are *some* sham relationships which shouldn't really be appealed. Some. Where they essentially don't know each other, for example.

I once came across a very rare prosecution in which the "wife" was unable to identify her "husband" in a photo. I personally wouldn't have appealed in that one.....