Tribunal decisions

The decision

IAC-AH-LR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/07536/2015
IA/08664/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10th November 2016
On 20th December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE I A M MURRAY

Between

Secretary of State for the home department
Appellant

and

a l A (first appellant)
H o a (second appellant)
(ANONYMITY DIRECTION made)
Respondent

Representation:

For the Appellant: Mr Armstrong, Home Office Presenting Officer
For the Respondent: Ms Reid, Counsel for Obadiah Rose Solicitors, London

DECISION AND REASONS

1. The Appellant in these proceedings is the Secretary of State however for convenience I shall now refer to the parties as they were before the First-tier Tribunal.
2. The Appellants are citizens of Nigeria. The first Appellant's date of birth is 21st October 1974. She is the mother of the second Appellant and her date of birth is 23rd March 2002. The second Appellant is also a Dutch citizen. The first Appellant has a daughter, AHC born on 25th March 2003 who is a Nigerian and Irish citizen. The first Appellant applied for a derivative residence card as the primary carer of a child in education whose EEA national parent has worked in the United Kingdom and who was resident in the United Kingdom while the child was in education. The second Appellant is her dependant and the applications were refused under the Immigration (European Economic Area) Regulations 2012, Regulation 15A (2) in a refusal letter dated 13th January 2015. The appeals were heard by Judge of the First-tier Tribunal Samimi on 7th April 2016. She allowed their appeals under Article 15A of the EU Regulations 2006. The decision was promulgated on 20th June 2016.
3. An application for permission to appeal was made on behalf of the Respondent. The permission states that the appeals were allowed as the judge believed the Appellants had some right of residence deriving from the CJEU's judgement in Zambrano, on the basis that the children would have to leave the territory of the EU should the Appellants be forced to return to Nigeria but this is not the case as neither EEA national child is a British citizen. The judge failed to consider why the children could not live in Ireland or the Netherlands so, as there is an alternative to the children leaving the territory of the EU, it is arguable that the principles in Zambrano do not apply. The judge also made no findings on the other parts of Regulation 15A and it is arguable that the Appellants did not meet any of these provisions.
4. There is no Rule 24 response.
5. The Appellants' representative submitted that she accepts that there is a material error of law in the judge's decision. The judge considered the case in terms of Ruiz Zambrano C-34(09). She submitted that this was the wrong basis on which to consider this case and she suggested that the case be remitted to the First-tier Tribunal.
6. The Presenting Officer accepted that this would be the correct way to treat this application.

Notice of Decision
7. There is a clear material error of law in the First-tier Judge's decision. It has been considered on the wrong basis. The decision of First-tier Tribunal Judge Samimi promulgated on 20th June 2016 must be set aside.
8. No findings of the First-tier Tribunal can stand. Under Section 12(2)(b)(i) of the 2007 Act and Practice Statement 7.2 the nature and extent of judicial fact-finding necessary for the decision to be remade is such that it is appropriate to remit the case to the First-tier Tribunal. Members of the First-tier Tribunal chosen to reconsider the case are not to include Judge Samimi.
9. Anonymity has been directed.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date

Deputy Upper Tribunal Judge I A M Murray