Tribunal decisions

The decision

Upper Tribunal
Immigration and Asylum Chamber Appeal Numbers: IA/02252/2013
IA/02255/2013
IA/02256/2013
THE IMMIGRATION ACTS

Heard at Field House
Promulgated
On 17 June 2013

On 18 June 2013

Before

Upper Tribunal Judge Kekić

Between

Tina Abdullah Albaz
Omar Abdal Safar
Lillyann Andalkerem Safar
Appellants
and

Secretary of State for the Home Department

Respondent

Determination and Reasons

Representation
For the Appellant: Ms F Clarke, Counsel
For the Respondent: Mr L Tarlow, Senior Home Office Presenting Officer

Details of appellant and basis of claim

1. These joint appeals come before the Upper Tribunal following the grant of permission to appeal on 8 May 2013 by First-tier Tribunal Judge Robertson in respect of the determination of First-tier Tribunal Judge Cameron promulgated on 17 April 2013. The appellants are a mother and her two children. They are all Iraqi nationals and their dates of birth are 19 May 1975, 23 November 2006 and 28 January 2008 respectively. The appeals of the minor appellants are dependent on the outcome of their mother’s appeal and she challenges the decision of the respondent to refuse to issue her with a permanent residence card as the former spouse of an EEA national. I refer to her as ‘the appellant’ in this determination.

2. The appellant entered the UK in 2006 from the Netherlands and sought asylum. She married in 2001 and her former husband is a Dutch national of Iraqi origin. It appears he arrived some weeks after the appellant and following the failure of her asylum claim (which she maintains was the result of bad advice) she sought and obtained a residence card as his spouse on 25 April 2007. Subsequently, the marriage broke down due to domestic violence and the couple divorced in May 2011.

3. The application for a permanent residence card was made on 2 July 2012. It was refused by the respondent on 31 December 2012 on the basis that the appellant did not meet the requirements of Regulation 10(5), specifically that the evidence did not establish that the sponsor was exercising treaty rights in the UK because only an ESOL certificate covering the period from December 2011 to January 2012 had been adduced. Furthermore under Regulation 4(1)(d)(ii) there was no evidence of comprehensive medical insurance and finally, that neither child had a passport and that there was no birth certificate in respect of Omar which set out the names of his parents.

4. The appeal came before First-tier Tribunal Judge Cameron who accepted that the appellant had been a victim of domestic violence. He was not satisfied, however, that she had established that the sponsor was a qualified person exercising treaty rights here. With regard to Article 8, he found that there had been no consideration by the Secretary of State of section 55 and he allowed the appeal to the extent that the decision was not in accordance with the law.

5. An application for permission to appeal was made on 25 April 2013. Its grant has led to these proceedings.

The Hearing

6. The appellant was in attendance at the hearing before me on 17 June 2013. I should point out at the outset that it was accepted in the respondent’s Rule 24 reply that the judge had erred in remitting the matter to the Secretary of State for consideration under section 55 when he could and should have dealt with the matter himself. Given that concession, I heard submissions from the parties only on the EEA issue.

7. Ms Clarke submitted that the appellant had not been able to obtain documentary evidence of her former husband’s work because their divorce had not been amicable. She acknowledged that the Regulations did not allow for any discretion and she was unable to point me to any case law to assist the appellant. Mr Tarlow submitted that the Regulations were clear and that they did not allow for any flexibility. In response Ms Clarke could only accept that was a stumbling block. She had nothing to say about the refusal under Regulation 4(1)(d)(ii).

8. At the conclusion of the hearing I gave my decision and reasons which I now set out below.

Findings and conclusions

9. There were two criticisms of the judge; the first was that he erred in respect of his findings under the Regulations and the second that he erred in respect of his approach to Article 8.

10. With respect to the first complaint, I find that the grounds are without any merit. The judge was fully cognisant of the appellant’s personal; circumstances and the difficulty in which she was in. this is plain from paragraphs 26, 29 and 31. He took account of Ahmed (Amos; Zambrano; reg 15A(3)(c) 2006 EEA Regulations) [2013] UKUT 00089. He found, however, that notwithstanding her circumstances, she still had to meet the requirements of the rest of Regulation 10(5) (as indeed was conveyed to the appellant in the respondent’s letter of 13 November 2008 (at page 76 of the bundle). It is not suggested that the documentary evidence establishes that she meets those requirements. In the circumstances it is difficult to see what other decision the judge could have reached as far as the Regulations were concerned. His decision in that respect is sustainable and contains no error of law.

11. That is not the case, however, with regard to the decision under Article 8. The judge allowed the appeal on the basis that the respondent’s failure to consider section 55 rendered the decision unlawful but he failed to undertake any assessment of section 55 and Article 8 himself as he was required to do. The respondent concedes this is an error of law. In the circumstances, there being no objections raised, I remit the appeal back to First-tier Tribunal Judge Cameron so that he can undertake the assessment and make the decision that he should have done when the matter first came before him.

Decision

12. The Tribunal did not make any error of law in respect of the decision under the EEA Regulations. However I set aside the part of the determination dealing with Article 8 and remit the matter back to First-tier Tribunal Judge Cameron to make a decision on Article 8.

Signed:

Dr R Kekić
Judge of the Upper Tribunal

17 June 2013