Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA103122015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7th June 2016
On 15th June 2016

Before

UPPER TRIBUNAL JUDGE MARTIN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

Mrs Joana Noelle Estelle Momasso
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:

For the Appellant: Mr E Tufan (Senior Home Office Presenting Officer)
For the Respondent: Mr P Opoku-Boateng (instructed by JF Law Solicitors)

NOTICE OF DECISION

1. This is an appeal to the Upper Tribunal by the Secretary of State in relation to a Decision of the First-tier Tribunal, Judge Oliver, promulgated on 28th October 2015 following a hearing on 25th September 2015 at Hatton Cross.
2. The Appellant in this case is a young lady from the Cameroon born on 2nd January 1990. She had arrived in the UK on 31st August 2012 as a Tier 4 Student. That leave was extended until 28th February 2015 but in between times on 22nd June 2014 she applied for a residence card under the EEA Regulations as the family member, namely spouse, of a Dutch national, Mr Samuel Amponsah. She had married him on 7th May 2014 and he was described in the marriage certificate as a sport centre manager. That application was refused on 18th August 2014 on the basis that the Secretary of State was not satisfied that the husband was in truth a qualified person. That was not appealed but a separate application was made in October 2014, this time on the basis that her husband was a student.
3. By the time the matter came before the Judge he was no longer a student but working. The judge in the Decision noted at paragraph 12 that the husband had submitted a witness statement but did not attend the hearing. In fact, in that he was wrong. The husband did attend the hearing but did not give evidence.
4. The judge went on to find the Appellant's husband to be a qualified person although nowhere in the Decision does he refer to any evidence to support that. The Decision is thus flawed by a material error of law which is fundamental to the Decision because if he is not a qualified person then the Appellant is not eligible for a residence card.
5. On that basis I set aside the Decision. With the agreement of both parties it is remitted to the First-tier Tribunal for a full rehearing and I direct the Appellant to file and serve all the evidence to be relied upon including a schedule which gives a chronology of the husband's qualified status with supporting evidence. The appropriate hearing centre is Taylor House.
Notice of Decision

The appeal is allowed to the extent that the decision of the First-tier Tribunal is set aside and the appeal is remitted to the First-tier Tribunal for a full rehearing by a different Judge.

No anonymity direction is made.

Signed Date 13th June 2016

Upper Tribunal Judge Martin