Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/02648/2016
EA/02650/2016
EA/02653/2016
EA/02654/2016
EA/02652/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 22nd November 2016
On 23 November 2016

Before

UPPER TRIBUNAL JUDGE MARTIN

Between

ALI [A]
FATIMA [K]
[S A1]
[S A2]
[Z A]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No appearance
For the Respondent: Mr C Avery (Home Office Presenting Officer)

DECISION AND REASONS

1. This is an application to the Upper Tribunal by the Appellants in relation to a Decision and Reasons of the First-tier Tribunal, Judge Grant-Hutchinson, promulgated on 12th July 2016, by which she dismissed the appeals against the Secretary of State's decision to refuse to issue this Dutch family with residence cards confirming a permanent right of residence under the EEA Regulations.
2. The First-tier Tribunal determined the appeals on the papers at the Appellants' request.
3. No one appeared on behalf the Appellants before me and the Appellants did not attend either. The Tribunal contacted the representatives who indicated that they were unaware that a hearing had been listed. For reasons which will become apparent I proceeded to deal with the matter in their absence.
4. The Secretary of State refused the applications because she was not satisfied that the First Appellant had been a qualified person for a continuous period of five years under Regulation 15 (1) (a) of the Regulations. The Judge set out the relevant parts of the Regulations and then considered the evidence. The judge was satisfied, on the basis of payslips, and P45s and medical evidence that the First Appellant had been a worker as defined by Regulation 6 from 15th March 2008 until 30th April 2011 when he became permanently incapacitated. On that basis the Judge found that the First Appellant clearly fell within Regulation 5 (3) of the 2006 Regulations. He is a worker who has ceased activity. He had been working in the United Kingdom for more than two years before 30th April 2011 and then, due to his medical conditions, he has been permanently incapacitated and unable to work since. The Judge referred herself to the case of FMB (EEA Regulations - reg 6 (2) (a) "temporarily unable to work") Uganda [2010] UKUT 447 (IAC) and found that there was no evidence to indicate that this Appellant would be able to work in future or that his condition could be regarded as "temporary". Having so found throughout the body of the Decision and Reasons, the Judge then at paragraph 18 found that the Appellant had not discharged the burden of proof and that the reasons given by the Respondent justified the refusal.
5. It is apparent from reading the Decision and Reasons as a whole that paragraph 18 has been inserted in error because throughout the document the judge has expressed herself satisfied that the Appellant meets the requirements of the Regulations and the appeals should have succeeded.
6. Mr Avery, on behalf the Secretary of State, had not had sight of the Decision and Reasons prior to the hearing and having been given time to read it accepted that the final paragraph of the document did not match the body of it and it was clearly the Judge's intention to allow the appeals.
7. Determining an appeal against the weight of findings is a material error of law such that I set aside the Decision and Reasons. There has been no challenge by the Secretary of State to the factual findings and so I redecide the appeals on the basis of the findings made by the First-tier Tribunal Judge and allow the appeals.
Notice of Decision
8. The Appellants appeals to the Upper Tribunal are allowed.
9. No anonymity direction is made.

Signed Date 22nd November 2016

Upper Tribunal Judge Martin