The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal no: ea/09002/2017


Decision & Reasons Promulgated
on 26.11.2018
On 30.11. 2018

Upper Tribunal Judge

For the appellant: Mr Geoff Cutting (registered by OISC), RG Immigration
For the respondent: Mr Nigel Bramble

This is an appeal, by the , against the decision of the First-tier Tribunal (Judge Lisa Gibbs), sitting at Hatton Cross on 31 July, to  an EEA appeal by a citizen of Sierra Leone, born 1966. The appellant had married a French citizen on 29 January 2011, and on 23 May 2017 applied for a permanent residence card on that basis. On 27 October this was refused: the reason upheld by the judge was that the appellant had not shown his (by then former) wife had remained a 'qualified person' till the date of the decree absolute dissolving their marriage on 31 March 2017.
2. It was common ground however between Mr Cutting and Mr Bramble that
(a) (as accepted all along) the appellant's ex-wife had been a 'qualified person' as a worker for the whole of the tax years beginning in 2010, 2011, 2012, 2013 and 2014; so that
(b) it followed that she had become entitled to permanent residence at the end of those five years, on 6 April 2015; and
(c) so had the appellant, once he had been here and married to her for five years himself, on 29 January 2016, regardless of whether his ex-wife would still have been a 'qualified person' on the basis of her income; and
(d) although the two of them had since been divorced, that right had come into existence on the date in question, and had not been affected by the dissolution of their marriage.
3. The judge dealt with the case very shortly (which is good, in case there should be any doubt about that) and clearly. Where she seems to have gone wrong is in her paragraph 10, summarizing Mr Cuttings's argument as being that the appellant had 'got there' by April 2015, when his reference had been to the ex-wife. It was indeed the ex-wife's status that had to be considered; but, for the reasons at 2, that could only have resulted in the appeal being allowed. For those reasons it is now allowed by consent.
(a judge of the Upper Tribunal)