EA/10487/2016

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The decision




Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: ea/10487/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 27th March 2018
On 11th April 2018



Before

UPPER TRIBUNAL JUDGE CHALKLEY

Between

miss temitayo adeola marble
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Representation:

For the Appellant: Ms S. Ferguson of Counsel instructed by Okafor & Co Solicitors
For the Respondent: Ms Z. Ahmad a Home Office Presenting Officer


DECISION AND REASONS

1. The appellant is a citizen of Nigeria who was born on 31st January 1980, and who arrived in the United Kingdom on the basis of her marriage in August 2011. She was issued with a residence card on 26th October 2011, with an expiry date of 26th October 2016. The residence card was revoked because she was no longer living with her family member. The appellant claimed that she married a French national on 6th November 2010, and that sadly they divorced on 12th October 2015. She maintained that at the time of their marriage and since the divorce, both she and her French national former husband have been working and, therefore, that her former spouse has been exercising treaty rights in the United Kingdom.

2. The respondent having revoked the appellant's residence card, the appellant appealed to the First-tier Tribunal. Her appeal was heard at Newport on 13th July 2017, by First-tier Tribunal Judge Suffield-Thompson. She dismissed the appeal.

3. The appellant challenged the judge's determination. Throughout her determination the judge appears to assume that the appellant is required to demonstrate that both she and her former spouse are continuing to exercise treaty rights in the United Kingdom, whereas in fact, of course, it was only necessary for the appellant to demonstrate that her Sponsor husband had been exercising treaty rights at the time of their marriage and at the time of the divorce.

4. There was evidence in the appellant's bundle from HM Customs and Revenue, which effectively demonstrated that the appellant met the requirements of the Immigration Rules, because clearly at all material times her former spouse was exercising treaty rights as an EEA national.

5. At the hearing before me Ms Ahmad confirmed that she was satisfied that the appellant's former spouse was exercising treaty rights at all relevant times. In the circumstances, I am satisfied that the decision of First-tier Tribunal Judge Suffield-Thompson does contain a material error of law. I set aside her decision and remake the decision myself.

6. I therefore allow the appellant's appeal.


Richard Chalkley
Upper Tribunal Judge Chalkley Date: 11 April 2018



TO THE RESPONDENT
FEE AWARD

As I have allowed the appeal. I have considered making a fee award and have decided to make a fee award of any fee which has been paid or may be payable for the following reason. The appellant's appeal was successful.


Richard Chalkley
Upper Tribunal Judge Chalkley Date: 11 April 2018