Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2022-006307

First-tier Tribunal No: EA/14810/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 14 May 2023

Before

UPPER TRIBUNAL JUDGE LINDSLEY

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

IVAN UZZAMAN
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr T Lindsay, Senior Home Office Presenting Officer
For the Respondent: None

Heard at Field House on 11 April 2023

DECISION AND REASONS
Introduction
1. The claimant is a citizen of Bangladesh born on 25th July 2007. He applied for permanent residence under the EU Settlement Scheme which was refused by the Secretary of State on 5th October 2021. The claimant contended that he is the dependent brother of Kabir Uzzaman, a citizen of Italy, and as a result entitled to permanent residence in the UK under this scheme. His appeal against the decision was allowed by First-tier Tribunal Judge Bart-Steward in a determination promulgated on the 26th April 2022.
2. Permission to appeal was granted by Judge of the First-tier Tribunal Kelly on 19th January 2023 on the basis that it was arguable that the First-tier judge had erred in law firstly in finding that the claimant fell within the scope of the Withdrawal Act; and secondly in failing to reason why s.55 of the Borders, Citizenship and Immigration Act 2009 was relevant to a grant of residence under the EU Settlement Scheme.
3. In light of the grant of permission to appeal the claimant wrote to the Upper Tribunal saying that he was in the process of making a new application and in light of this the Secretary of State did not intend to proceed with this appeal. The Secretary of State wrote to explain that she was happy for the appeal to be withdrawn by consent if the claimant accepted that the contended errors were made out in the decision and that it could not be relied upon in the future. Upper Tribunal Lawyer Asim Hussain made a decision on the 22nd February 2023 that it was open to the parties to agree a consent order withdrawing the appeal which would then be consider by the Upper Tribunal Judge allocated to determine the appeal. No consent order was received by the Upper Tribunal in advance of the hearing but in the hearing Mr Lindsay emailed the Upper Tribunal the consent order signed by Zyber Law on behalf of the claimant.
4. The matter came before me to determine whether the First-tier Tribunal had erred in law, and if so whether any such error was material and whether the decision of the First-tier Tribunal should be set aside.
Submissions – Error of Law
5. In the grounds of appeal the Secretary of State argues, in summary, as follows.
6. Firstly, it is argued, that there was a material misdirection in law. At paragraph 7 of the decision it is found that the claimant entered the UK as an EEA family member which is incorrect, as set out at paragraph 15 of the decision he entered the UK as a visitor, and so his entry was not as a facilitated extended family member of an EEA national. His application was made on 31st March 2021 and at no point prior to the UK leaving the EU had the claimant had his residence facilitated as an extended family member of an EEA national by the Secretary of State. As a result he was not a person covered by the scope of the Withdrawal Agreement.
7. Secondly, it is argued, that there was a failure to give reasons for the decision that s.55 of the Borders, Citizenship and Immigration Act 2009 was relevant to determining this appeal when it was accepted that the claimant, who lives with his parents in the UK, could make another application to the Secretary of State for leave to remain.
Conclusions – Error of Law
8. An error of law is found by consent in accordance with the consent order signed by Zyber Law for the claimant which I append as Annex A to my decision below. In these circumstances no further reasoning is needed.

Decision:
1. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.
2. I set aside the decision of the First-tier Tribunal.
3. I re-make the decision in the appeal by dismissing it.

Fiona Lindsley

Judge of the Upper Tribunal
Immigration and Asylum Chamber

11th February 2023

Annex A