Tribunal decisions

The decision

IAC-AH-CJ-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/03199/2016

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 13th January 2017
On 30th January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE ZUCKER

Between

Zaneta Goman
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No representation
For the Respondent: Mr Diwnycz, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Poland whose date of birth is recorded as 28th January 1975. On 9th March 2016 the Secretary of State made a decision pursuant to Regulations 19(3)(a) taken together with 24(2) of the Immigration (European Economic Area) Regulations 2006 that the Appellant was a person in respect of whom removal directions might be given in accordance with Section 10 of the Immigration and Asylum Act 1999 as a person who did not have or had ceased to have a right to reside in the United Kingdom under the Regulations.
2. At the commencement of the proceedings I invited Mr Diwnycz to assist me on the basis whether the Secretary of State had made her decision on a flawed premise because it was possible that the Appellant had acquired a permanent right of residence pursuant to Regulation 15.
3. What had happened in this case was that the Appellant having been faced with the decision of March 2016 appealed to the First-tier Tribunal. Her appeal was heard on 8th July 2016 before Judge of the First-tier Tribunal Moxon. Judge Moxon not only dealt with the EEA decision but also appears to have considered the appeal having regard to human rights. It is not clear whether a Section 120 notice was ever served but that does not matter given what occurred before me.
4. Judge Moxon dismissed the appeal and the Appellant then made application for permission to appeal to the Upper Tribunal. Permission was granted by Judge of the First-tier Tribunal O'Garro on 30th October 2016 finding it arguable that the judge did not give sufficient consideration to the relevant Regulations of the Immigration (European Economic Area) Regulations 2006 (as amended).
5. That grant of permission in essence gives the Appellant the opportunity to argue "anything" under the Regulations.
6. As I have already said, Mr Diwnycz, having regard to the documentation that was before him and which he felt, having regard to paragraph 13 of the decision of Judge Moxon had not been before Judge Moxon, was satisfied that the Appellant had demonstrated from the registration documents that she had established five years' continuous residence in the United Kingdom which had not been lost by any period of absence. By Regulation 15 of the Regulations an EEA national who has resided in the United Kingdom in accordance with the Regulations for a continuous period of five years acquires the right to reside permanently in the United Kingdom and that right shall be lost only through an absence from the United Kingdom for a period exceeding two consecutive years: 15(2). It was not suggested before the First-tier Tribunal nor before me that the Appellant had had any period in excess of two years.
7. The effect of permanent residence in the United Kingdom is that the test to be applied, having regard to Regulation 21(3), is not simply whether there are public policy, public security or public health grounds, but whether there are serious grounds of public policy or public security justifying the decision.
8. Mr Diwnycz told me that he could not argue given the nine offences of theft and kindred offences for which the Appellant was convicted on 12th February 2016 and sentenced to two months' immediate custody was sufficient. In the circumstances it is not necessary for me to consider the matter further. There was clearly a material error of law in that the judge did not apply the Regulations correctly.
9. I am very grateful to Mr Diwnycz for the realistic position which he took in relation to this appeal. I dictated this Decision in front of the parties to avoid any suggestion that there had been any misunderstanding of what occurred. It is in essence the Secretary of State's position that the Appellant is entitled to succeed in the appeal and therefore the appeal is allowed.

Notice of Decision

The decision of the First-tier Tribunal is set aside. The decision contained a material error of law. I remake the decision such that the appeal is allowed.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Zucker