Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/12288/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6 September 2016
On 20 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE DAVEY

Between

Secretary of State for the Home Department
Appellant
and

MR BOULOS SALEEB
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr S Whitwell, Home Office Presenting Officer
For the Respondent: Mr I Konusanac, instructed by Igor & Co Solicitors

DECISION AND REASONS

1. In this decision the Appellant is referred to as the Secretary of State and the Respondent is referred to as the Claimant.

2. The Claimant, a national of Egypt, appealed against a decision of the Secretary of State dated 26 January 2015. The matter came on appeal before First-tier Tribunal Judge Beg (the judge) who, on 8 March 2016 allowed the appeal under the Immigration (European Economic Area) Regulations 2006.

3. The Secretary of State had challenged that and permission to appeal was given by First-tier Tribunal Judge Pedro on 3 August 2016.

4. It is common ground the judge took the view that the application was for a permanent residence card whereas that was not the case.

5. Evidence was called nevertheless relating to a claim seeking a residence card and the judge was satisfied, for reasons given which I find sufficient and adequate, that the Sponsor was, for the purposes of the Regulations, a qualified person : In the circumstances the Claimant was effectively an extended family member. The position is that Mr Whitwell did not draft the grounds of appeal but stands by them without making any concession.

6. Nevertheless, the position is that on a fair reading of the judge's decision in the round the judge did enough to demonstrate that a residence card at least could be issued by the Secretary of State under the Regulations because he and the Sponsor had discharged the burden of proof on a balance of probabilities that he met the requirements of the Regulations. Whether I would have reached the same decision is neither here nor there but the judge found it so and there is no substantive attack on the credibility and reliability findings which the judge made.

7. Where I found the original Tribunal had made an error of law was in purporting to grant the appeal outright. It seems to me that this is a matter which fell to be returned to the Secretary of State for the exercise of discretion under Regulation 17(4) in the light of the case such as Ukus [2012] UKUT 307, Ihremedu [2011] UKUT340 and that whilst on the face of it there is nothing to indicate a good reason as yet why the residence card should not be issued, the fact is that is for the Secretary of State in making a new decision to exercise her discretion upon it. Therefore, the Original Tribunal's decision does not stand in allowing the appeal. The findings of fact by the Original Tribunal stand.

DECISION
8. In these circumstances the Secretary of State's appeal succeeds but to the limited extent of the matter being returned to the Secretary of State for the exercise of discretion.

ANONYMITY
No anonymity order was made and none is necessary or appropriate.

TO THE RESPONDENT
FEE AWARD
The fee award made by the judge does stands.

Signed Date: 17 October 2016

Deputy Upper Tribunal Judge Davey

P.S. I regret the delay in promulgation which was due to the file being mislocated.