Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA123912015; IA134812015

THE IMMIGRATION ACTS

Heard at City Centre Tower, Birmingham
Determination & Reasons Promulgated
On 8th April 2016
On 14th June 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

(1) mr Elino John Bernardo
(2) MS ELINO JOHN BERNARDO
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Reid (Counsel)
For the Respondent: Mr Diwnycz (HOPO)

DETERMINATION AND REASONS
1. This is an appeal against the determination of First-tier Tribunal Judge Somal, promulgated on 24th August 2015, following a hearing at Stoke-on-Trent on 11th August 2015. In the determination, the judge dismissed the appeal of the Appellant, whereupon the Appellant subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
The Appellant
2. The first Appellant, who is the principal Appellant, is a male, a citizen of the Philippines, who applied for a residence card as confirmation of his right to reside in the UK under European Community Law. The second Appellant, who is a female, is his wife, and she is his dependent. By a decision dated 28th March 2015, the application of the principal appellant (hereafter "the Appellant") was rejected.
3. The Appellant's claim is that the Sponsor, Mrs Erlinda Bernardo Marcano, is a British citizen, and she is her aunt and he and she has exercised treaty rights, by working in Ireland, as a British citizen, and on that basis, he is entitled to join her as a extended family member of hers.
The Judge's Findings
4. The judge referred to the applicable European Law and stated that Regulation 7 makes it plain that a family member of an EEA national is a spouse, or civil partner, and a direct descendant of his, his spouse or civil partner, who is under 21. It also includes a dependent direct relative in the ascending line or an extended family member who has been issued with an EEA family permit registration certificate or business card. In this case, the sponsoring relative had not been issued with a residence card.
5. The judge went on to hold that, "I find the Appellant does not have rights through the aunt and could never have met the definition of an extended family member, as his aunt is a British citizen and not an EEA national" (see paragraph 9).
Grounds of Application
6. The grounds of application state that the judge erred in law because the application was under the "Surinder Singh youth route" and the British citizen should have been treated as an EEA national.
7. On 5th January 2016, permission to appeal was granted.
8. On 7th January 2016, a Rule 24 response was entered to the effect that the Appellants are at most extended family members of a British national who had purportedly been exercising treaty rights and the Grounds of Appeal do not annunciate how the requirement of the Regulations had been met.
Submissions
9. At the hearing before me, Ms Reid, appearing on behalf of the Appellant, submitted that she had had the opportunity of speaking with Mr Diwnycz and the two of them were agreed that there should be a finding of an error of law and then a remaking of the decision by this Tribunal for the following reasons. First, the judge at paragraph 9 stated that, "I find the Appellant does not have rights through the aunt ...", but this is plainly wrong. Rights did exist under the aunt. Under Regulation 9 allowances specifically made for British citizens, working abroad to be treated as EEA nationals. Therefore, the judge's conclusion was the error of law. Second, however, in remaking the decision, it must be the case that the Appellant cannot succeed because the Appellant is not a directed descending family member but is an extended family member. Mr Diwnycz agreed.
Error of Law
10. I am satisfied that the making of the decision by the judge involved the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision. My reasons are quite simply that the judge was wrong to have concluded that, "I find the Appellant does not have rights through the aunt .....". British citizens working abroad are to be given the same status as EEA nationals because they are availing themselves of EEA rights.
Re-Making the Decision
11. I have re-made the decision on the basis of the findings of the original judge, the evidence before her, and the submission that I have heard today. I am dismissing this appeal because the Appellant cannot succeed as he is an extended family member of an EEA national who did not hold a residence card.
Notice of Decision
12. The decision of the First-tier Tribunal involved the making of an error of law such that it falls to be set aside. I set aside the decision of the original judge. I re-made the decision as follows. The appeal of both Appellants is dismissed.
13. No anonymity order is made.

Signed Date

Deputy Upper Tribunal Judge Juss 13th June 2016