SALA OVERTURNED BY COURT OF APPEAL NO LONGER GOOD LAW

[Obie]

It is strange your appeal was allowed in 2015, and Sala became an obstacle, when Sala only came out in the Autumn of 2016.

One does not know what the supreme court will say. However there is an Opinion in Banger coming up on the 15-03-18. So whatever the supreme court say, may not mark the conclusion of the matter.

It will appear that Banger has been removed from court diary. Unclear when the opinion will be promulgated now.

[vinny]

The right of appeal against refusal of a residence card: where are we up to?

[ScottJonesy]

It is strange your appeal was allowed in 2015, and Sala became an obstacle, when Sala only came out in the Autumn of 2016.

One does not know what the supreme court will say. However there is an Opinion in Banger coming up on the 15-03-18. So whatever the supreme court say, may not mark the conclusion of the matter.

It will appear that Banger has been removed from court diary. Unclear when the opinion will be promulgated now.

Banger will now be the 10th April. I'm not sure if this is a good or bad thing??!?!

[malikilyas]

Hi every one...has anyone recieved the hearing date from first tier tribunal for extended family members??

[raz2]

You can pursue both appeals at the same time. When your visa/residence card is issued under one, Home Office will inform the tribunal and they will cancel the other appeal.

That is not correct, things don't work that way under the regulations. A new application does not overturn an old refusal which is the subject of an appeal.

Hi Obie
there is so confusing, what to do
my appeal pending in court of appeal under reg 2006. coz i heard about EEA cases comes under out of immigration rules so can handle to parreall cases, so i decides to put the new application on same grounds for possibly gud result on reconsideration.
As i won my appeal in 2016 from FTT but after that UT allowed to HO on the sala grounds no jurisdiction.

my new application were also refused in Nov 2017, so i didnt pursue and focus on my old appeal which is on 42 days stay pending request from HO untill the khan case decesion in Supreme court. the 42 days period will be finished by 26 March 18. what options have plz let me know.

[Obie]

What does your solicitor suggest, coz all cases are different.

[ScottJonesy]

Long story short, we're due in the Court of Appeal in a few weeks.

Our UT case was EA/02400/2015

We've never lost a case and are representing ourselves. The Home Office are officially dearly beloved (using UN definitions) at a minimum prejudiced (using the wording used in both the First and Upper Tier Tribunals) against British people and aren't contesting that. So, as an aside I'm reporting them for a hate crime.

The GLD are dropping their grounds re Sala but are NOW trying to get it adjourned as of awaiting Banger.

We're due in court in three weeks and haven't even received their final bundle yet - they really are a disgusting bunch of incompetent dearly beloved people.

Obviously we're fighting the adjournment. The case is https://casetracker.justice.gov.uk/getD ... d=20170808 - still scheduled to happen. Feel free to pack the public gallery! I think we help many many of you out if we win this one.

[Obie]

Well Banger is of no relevance. Save for the specific Surinder Singh questions, the Supreme court has more or less addressed the appeal right question.

[raz2]

What does your solicitor suggest, coz all cases are different.

no solicitor, i m still unclear , about the validity of my ongoing appeal. what complexity involved about appeal and new refusal. whats the law said... is thats comes in immigration rules?

[eubritish]

What does your solicitor suggest, coz all cases are different.

no solicitor, i m still unclear , about the validity of my ongoing appeal. what complexity involved about appeal and new refusal. whats the law said... is thats comes in immigration rules?

Not sure why is Home Office waiting for decision in Khan because as far as I know, the court of appeal did not allow Home Office to appeal to Supreme court against its decision. So that should a case closed?

You will have to follow your old appeal I guess.

The opinion in Banger is also coming on 10th April, which hopefully, would allow appeals under 2016 regulations as well so this matter can be closed once and for all.

I am in a similar boat and I can understand your frustration.

[Obie]

Well in regards to SALA, it all depends on what stages the cases are at. In one of my 2 cases at Court of Appeal Lord Justice Underhill has indicated he will be minded to allow the appeal outright as the Upper Tribunal at the Error of Law hearing indicated that the only reason why he will not grant me my appeal is because of Sala.

The other matter is not that straight forward. The judge simply refused on Jurisdiction and did not go into making findings on what he would have done had it not been for SALA.

Lord Justice Underhill did not go as far as saying he will allow it outright.

He said he will grant permission on the basis that the second appeal test is met as due to the Sala issue, there was never a first appeal, so applying a second appeal test will be wholly unfair.

Will have to see. However I believe the court will have no option but to allow all appeal, even if it is one where the Upper Tribunal had indicated they would have found there was no error of law without Sala.

I really do think Mr Ockleton should be reprimanded. He has brought the Tribunal into a state of disrepute and caused immense mess and cost to the Home Office. It is unbelievable what has happened.

[vinny]

I really do think Mr Ockleton should be reprimanded. He has brought the Tribunal in a state of disrepute and caused immense mess and cost to the Home Office. It is unbelievable what has happened.

Leading to the extremely quick amendments to the EEA Regulations...

[Obie]

I really do think Mr Ockleton should be reprimanded. He has brought the Tribunal into a state of disrepute and caused immense mess and cost to the Home Office. It is unbelievable what has happened.

Leading to the extremely quick amendments to the EEA Regulations...

Surprised he is still there. If it was in any other profession he would definitely had faced some form of disciplinary action, but because it is immigrant and these unwanted extended family members he can get away with anything these days.

It was not a live issue between the parties, he had to make an issue from nowhere to show he is powerful. The Court of Appeal is overwhelmed by these many cases.

I have sat before him and he is a very unpleasant person and a bully, sometimes he is more aggressive than the Senior Home Office presenting officers that work present the Home Office case at the Upper Tribunal. I don't have a habit of speaking negatively, but i really can't wait to see his career demises. He is a person with deep animosity toward migrant.

[vinny]

Strange indeed.

Following the hearing, we concluded that it would be of benefit to have argument seeking to put forward the contrary case to that of the parties, namely that no right of appeal existed. As a consequence, a request was made to the Attorney General for the appointment of counsel to act as a friend to the court to present those arguments. There was a delay whilst arrangements were agreed and made and, ultimately on 7 June 2016, the UT reconvened to hear argument from the parties represented by Mr O'Callaghan and Ms Smyth respectively and from Ms Broadfoot instructed as a Friend to the Court.

They apparently went out of their way to appoint one counsel to argue a point of view that was not in dispute by either party in the appeal.

Moreover, it’s also a pity that he didn’t follow his own criticism

...But it is not, and indeed cannot reasonably be, suggested that blindness prevents a person learning or applying law, or performing the crucial judicial tasks of hearing both sides and reaching, and expressing, a properly reasoned conclusion. It is failure in these areas that form the grounds of appeal we have to consider.

by appointing another counsel to argue an opposite view.

[Obie]

He also adjudicated in the case of LO(Nigeria) http://www.bailii.org/uk/cases/UKIAT/2009/00034.html .

Not to mention what he said in paragraph 13-16 of FD, and then in SALA it was a different thing, http://www.bailii.org/cgi-bin/format.cg ... query=(FD).

That man is a jerk.

[ScottJonesy]

Well Banger is of no relevance. Save for the specific Surinder Singh questions, the Supreme court has more or less addressed the appeal right question.

Well Banger is now their only ground so they think it is. Less than three weeks away, no final bundle, them jostling for an adjournment based solely on Banger. Not sure what they're playing at. Or how to respond that Banger isn't relevant as you say.

[eubritish]

Does anyone have any news about the ECJ ruling? it was supposed to be today at 09:30 CET. I have been frantically searching online but can't find anything yet. I am being impatient I know.

[Obie]

Here is the opinion.

[eubritish]

And from what I understand, the opinion hasn't actually answered the 4th question but left it to the national court to decide whether the existing remedy (of judicial review) is sufficient to meet the directive.

I guess we all know what that means.

[Obie]

Well i was not expecting the Court to say that Extended Family Members have appeal rights under the EEA Regulations, as memberstates do have a degree of autonomy as to how they provide judicial remedy for their administrative decision.

However having seen the prescription given by the CJEU opinion into the criteria that should be contained in this review, it seems that the Judicial review system may not be adequate for the purpose of Article 3(2) examination, and the UK may well have to provide a Right of Appeal, if the Opinion finds it ways into the Judgement of the CJEU.

Most importantly though, the application of Surinder Singh to Extended family member was most helpful in my view.

[eubritish]

I am not sure if it is really that helpful. EFM are now included in the definition of Surrinder Singh which is great, but if their application is refused for whatever reason, there is no right of appeal.

Even if the application is wrongly refused, like in case of my EFM that has been refused because I have become dual national.

Judicial Review is an option but I don't think many of us have thousands of pounds lying idle that we can splash on JR, especially when JR doesn't challenge the decision itself but mere the legality. That is not much help against the cowboys employed as Entry Clearance Officers.

[Obie]

The Criteria set out, is such that the Home Office may well need to make a new provision in the JR regime, or to prevent the hassle, simply confer a right of appeal on Extended family members.

However we do not know what the Court will conclude yet.

[eubritish]

I wish and hope you are right.

Any idea how long does it take for the judgement to come after opinion of AG? is there any sort of set timeframe or it just depends on their schedule as always? I couldn't find any indication by searching online.

It looks like I will have to log the appeal to FTT as my 28 days deadline runs out on 18th April. It will be thrown out by FTT for lack of jurisdiction but there is not more I can do at this point.

I had sent a Pre-Action Protocol letter (via email) to UKBA but they haven't responded, as was expected.

[alihamza]

hi everyone whet happen now to appeal been allowed in upper tribunal as my appeal was allowed in upper tribunal and now respondent have right to as appeal please Mr obie i information about is gon happen and one more think if the home office they have to wait for judgement to come out

[alihamza]

The Criteria set out, is such that the Home Office may well need to make a new provision in the JR regime, or to prevent the hassle, simply confer a right of appeal on Extended family members.

However we do not know what the Court will conclude yet.