EA/15906/2021

• Status of case: Unreported
• Hearing date: 22 Sep 2022
• Promulgation date: 27 Nov 2022
• Publication date: 13 Dec 2022
• Last updated on: 13 Dec 2022

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2022-003411
EA/15906/2021


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 22 September 2022
On 27 November 2022



Before

UPPER TRIBUNAL JUDGE PERKINS


Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Brunilda Musaj
(anonymity direction not made)
Respondent


Representation:
For the Appellant: Mr D Clarke, Home Office Presenting Officer
For the Respondent: Mr A Stedman, Counsel instructed by SMA Solicitors
DECISION AND REASONS
(extempore judgement)
1. This is an appeal brought by the Secretary of State against a decision of the First-tier Tribunal allowing the appeal of the respondent, hereinafter “the claimant”, against a decision of the Secretary of State refusing her an EUSS Family Permit.
2. Unlike the First-tier Tribunal, I had the benefit of grounds of appeal settled by Mr Peter Deller of the Specialist Appeals Team who, with his usual clarity and attention to detail, asserting that the appeal should have been dismissed because the applicant did not have the necessary card which was a prerequisite of satisfying the requirements of the Rules.
3. Mr Clarke adopted Mr Deller’s arguments.
4. This point has been considered by the Upper Tribunal in the case of Batool & Ors (other family members: EU exit) [2022] UKUT 00219 (IAC). This decision gives considerable judicial authority from this Tribunal for the analysis urged by Mr Deller.
5. The short point is that the application cannot possibly succeed and therefore the judge was wrong to allow the appeal. I set aside the decision of the First-tier Tribunal and I substitute an appeal dismissing the appeal against the Secretary of State’s decision.
6. I am very grateful to Mr Stedman this morning. He was Counsel below but now had the benefit of Batool and although he has given that case considerable care it was his professional judgment this morning that his position was unarguable and, in the best traditions of the Bar, did not waste my time flogging a dead horse but accepted the difficulty he was in and for that entirely correct approach I record my gratitude.
7. The appeal should have been dismissed. I allow the Secretary of State’s appeal against the First-tier Tribunal’s decision and I dismiss the claimant’s appeal against the refusal of the permit. That is my decision.

Notice of Decision
8. The First-tier Tribunal erred in law. I set aside its decision and I substitute a decision dismissing the claimant’s appeal against the First-tier Tribunal’s decision.

Jonathan Perkins
Signed

Jonathan Perkins

Judge of the Upper Tribunal
Dated 21 October 2022