Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/11303/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3 March 2017
On 27 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SHERIDAN

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

zenaida Sandoval jimenez
(ANONYMITY DIRECTION NOT made)
Respondent

Representation
For the Appellant: Mr P. Nath, Home Office Presenting Officer
For the Respondent: Mr J. Bild, instructed by Tait’s Immigration Services

DECISION AND REASONS

1. The respondent (hereinafter “the claimant”) is a citizen of the Philippines born on 19 September 1963 whose application for Permanent Residence under the Immigration (EEA) Regulations 2006 (“the 2006 Regulations”) was refused. Her subsequent appeal to the First-Tier Tribunal (“FtT”), heard by FtT Judge Bladwin, was allowed. The Secretary of State now appeals against that decision.
Background
2. The claimant’s mother, a national of the Philippines, came to the UK in 1973. In 2001 she married a national of Cyprus who was also a naturalised British citizen. She died on 23 March 2010.
3. On 30 March 2010, following her mother’s death, the claimant came to the UK. Thereafter, she lived with her stepfather.
4. In November 2010 the claimant applied for, and on 8 February 2011 was granted, an EEA Residence card as the family member of her stepfather. There appears to be some confusion in the papers as to whether the claimant was granted a residence card as an extended family member under Regulation 8 of the 2006 Regulations or a family member under Regulation 7 but it was common ground before me that it was the latter.
5. In August 2012 the claimant’s stepfather died. On 18 July 2013 the claimant’s Residence Card was revoked.
6. On 1 October 2014 the appellant applied for a Permanent Residence Card. The application was refused on the basis, inter alia, that she had not been dependent on her mother or stepfather, had not satisfied the requisite period of residency in the UK and had not shown her EEA family member was a qualified person.
Decision of the First-tier Tribunal
7. The judge found that the claimant was financially dependent on her mother and stepfather; that she had been living with her stepfather for over two years before he died; and that she was in paid employment when her stepfather died. The judge also found that on 8 February 2011 the claimant was granted a residence card as a dependent family member. Having made these findings, the judge concluded that the requirements of the 2006 Regulations had been satisfied and accordingly allowed the appeal.
Grounds of appeal
8. The grounds of appeal argued that the facts do not support a finding that the claimant was a family member either under Regulation 7 or Regulation 8 as the dependency requirement was not established. The grounds also contend that the judge failed to address that the claimant’s stepfather was a dual national with British citizenship.
Consideration
9. After hearing submissions from Mr Bild and Mr Nath, I advised the parties that I was satisfied the judge had not made a material error of law. My reasons, which I summarised at the hearing, are as follows.
10. The key issue before the FtT was whether the claimant had retained a right of residence under Regulation 10(2).
11. Regulation 10(2) states that:
10(2) A person satisfies the conditions in this paragraph if—
(a) he was a family member of a qualified person when the qualified person died;
(b) he resided in the United Kingdom in accordance with these Regulations for at least the year immediately before the death of the qualified person; and
(c) he satisfies the condition in paragraph (6).
12. Regulation 10(6) states that:
(6) The condition in this paragraph is that the person—
(a) is not an EEA national but would, if he were an EEA national, be a worker, a self-employed person or a self-sufficient person under regulation 6; or
(b) is the family member of a person who falls within paragraph (a).
13. Given the evidence before the FtT about the claimant living with her stepfather and being supported by him through his pension, the judge was entitled to find that there was a sufficient degree of dependency for the claimant to be considered a family member under Regulation 7(1)(b). The judge was also entitled to find, based on the evidence that was before the FtT, that the claimant’s stepfather’s work history and reasons for ceasing to work were such that he could properly be categorised as a qualified person under the 2006 Regulations. Accordingly, it was open to the judge to find that when the claimant’s stepfather died on 2 August 2012 the claimant was a family member of a qualified person such that Regulation 10(2)(a) was satisfied.
14. The claimant resided in the UK from 30 March 2010 as a family member of her stepfather. When he died on 2 August 2012, she had been living with him for over a year. It follows, therefore, that Regulation 10(2)(b) is satisfied.
15. The claimant adduced evidence of her employment, as summarised in paragraph 15 of the decision, which is consistent with a finding that the requirements of Regulation 10(6)(a) are met.
16. The judge, therefore, was entitled to find, based on the evidence that was before the FtT, that Regulation 10(2) was satisfied and that consequently a permanent right of residence had been acquired under Regulation 15(1)(f) on the basis that as of 30 March 2015 the claimant had been in the UK for five continuous years and at the end of that period was a family member who had retained the right of residence.
17. The Secretary of State raised in the Grounds of Appeal that the judge had failed to take into account that the claimant’s stepfather was a dual national with British Citizenship. This is not material. On 16 July 2012 the 2006 Regulations were amended to exclude from its ambit dual nationals with British Citizenship. However, the claimant was granted a residence card in February 2011 and benefits from the transitional arrangements (see p28 of Home Office Guidance “Free Movement Rights: Direct Family Members of EEA Nationals” 25 November 2016). The EEA Regulations are therefore applicable even though the claimant’s stepfather had dual nationality.

Decision
A. The decision of the First-tier Tribunal did not involve the making of a material error of law and shall stand.
B. The appeal is dismissed.

Signed

Deputy Upper Tribunal Judge Sheridan

Dated: 24 March 2017