EA007172016

The Judge dismissed the appeal on 2 grounds. Firstly, that in the light of the Upper Tribunal decision there was no valid appeal before him. Secondly even if Sala was overturned by a later decision of the Court of Appeal (which in fact happened) the Appellant's appeal failed on the merits because there was no evidence to establish that the marriage to the sponsor was legally valid in Hungary and therefore it fell foul of the Upper Tribunal authority of Kareem [2014] UKUT 24 .

After some discussion in court I indicated that I did not think it was appropriate for this case to remain in the Upper Tribunal as the effect of the errors of law were such that no proper hearing had in fact taken place at first instance. Both advocates agreed with that and in accordance with the Senior President's direction I indicated that I would remit the matter back to the First-tier which I now do to be heard de novo with no findings preserved.

One further issue was raised by counsel. The Appellant had been unable to produce evidence of the sponsor's self-employment as he had lost contact with her. Counsel asked me to make a direction in the terms outlined in the case of Amos [2011] EWCA Civ 552 for the Respondent to make enquiries of HMRC as to the sponsor's self-employment record. As this is material to the issues in the case and I accept that the Appellant has made reasonable if unsuccessful enquiries thus far I make a direction in the terms I set out below.

The decision of the First-tier Tribunal involved the making of an error of law and I have set it aside. The appeal is remitted back to the First-tier Tribunal at Taylor House to be reheard de novo by any Judge save Judge Khawar.

I direct that the Respondent should use her best endeavours to make enquiries of HMRC as to the working record of the sponsor in this case, [ZS] date of birth [ ] 1970 national insurance number [ - ] and thereafter supply the Appellant with the results of those enquiries.