Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/03608/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 29 November 2016
On 2 December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HILL QC

Between

mr David [K]
(anonymity direction NOT MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Not present or represented
For the Respondent: Ms A Brocklesby-Weller, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant's mother has written to the Upper Tribunal stating that she would be unable to attend today to represent her son's interests. The appellant has a severe form of autism, finds it difficult to travel and can be disruptive in public. Her letter was not considered to be an application to adjourn, rather a request to proceed in the absence of the appellant. There being no prejudice to either party, I agreed to proceed on that basis.

2. This is an appeal from the decision of First-tier Tribunal Judge Handley which was promulgated on 5 June 2016. The appellant was born in 1999 and is a Dutch national and an application was made on 5 February 2016 for a registration certificate under regulation 26 of the Immigration (EEA) Regulations 2006, which was refused by the Secretary of State in a letter dated 29 March 2016. The appellant appealed.

3. The Judge noted that the sponsor who purported to be the mother of the appellant but had failed to show that the appellant was related to her, even though both the appellant and the sponsor had provided sufficient proof of their respective identities.

4. The Judge stated at paragraph 14:
"I also noted that the appellant suggested that a birth certificate and a passport had been submitted with the notice of appeal. Attached to the notice of appeal was what appeared to be a Dutch document. This document had not been translated and consequently I have been unable to take account of it. Also before me was part of the appellant's Dutch passport. Given the absence of any explanation regarding the significance of this document I found that it was of limited assistance to me".
The Judge concluded "the sponsor and the appellant were aware of the concerns of the respondent as stated in the notice of appeal but they had not properly addressed these issues.

5. What was referred to as "a Dutch document" appears in copy form in the documentation but there is also an original on the file which had been before the Judge. Although I have no knowledge of Dutch it is self-evidently a birth certificate and it records the name of the sponsor as being the mother and the name of the appellant as being her child. The date coincides with the child's birth in what was certified as an authenticated copy by the Dutch authorities in 2010. This was a relevant and probative document which the Judge was wrong to ignore.

6. Ms Brocklesby-Weller, on behalf of the Secretary of State, accepts that the birth certificate is genuine and amounts to sufficient proof of the familial relationship between the sponsor and the appellant.

7. There was clearly a material error of law by the Judge in not recognising and appreciating the meaning and effect of the documentation before the tribunal. In the circumstances the decision must be set aside. In remaking the decision, it is clear that the required relationship under the EEA Regulations has been proved to the required standard, as is conceded on behalf of the Secretary of State. The appeal therefore succeeds.

Notice of Decision

The appeal is allowed and decision of the First-tier Tribunal is set aside.

In remaking the decision, the appeal from the respondent's refusal letter is allowed under the Immigration (EEA) Regulations 2006, and it is declared that the appellant is entitled to a registration certificate.

No anonymity direction is made.

Signed Mark Hill Date 1 December 2016

Deputy Upper Tribunal Judge Hill QC