Tribunal decisions

The decision

ST
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/18167/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 4 April 2016
On 13 April 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE A M BLACK

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

H M S
(ANONYMITY DIRECTION MADE)
Respondent

Representation:

For the Appellant: Ms Brocklesby-Weller, Home Office Presenting Officer
For the Respondent: Ms Beach, counsel

DECISION AND REASONS
1. The Secretary of State pursues this appeal against the decision of the First-Tier Tribunal to allow an appeal against the refusal to issue a residence card under Regulation 10(5) and Regulation 15(1)(f) of the Immigration (European Economic Area) Regulations 2006 (as amended) ("the Regulations").
2. I maintain the descriptions of the parties as they were in the First-Tier Tribunal, namely as appellant and respondent, for ease of reference, notwithstanding it is the Secretary of State who pursues this appeal.
3. The appellant is a citizen of Pakistan who appealed against the decision of the respondent to refuse to issue a residence card under the Regulations. His appeal against that decision was allowed by Judge of the First-tier Tribunal McDade ("the FTTJ") in a decision promulgated on 24 September 2015.
4. An anonymity direction was not made in the First-tier Tribunal but, given my references to the appellant's personal circumstances, I make one now.
5. Permission to appeal was granted by FTTJ Foudy on 2 December 2015.
6. On 26 January 2016 I found that the FTTJ had made a material error of law in his findings under Regulations 15(1)(b) and 4, including 4(1)(d)(ii) and (iii)) in that the FTJ had failed to address the issue of whether the appellant had demonstrated that his former wife was a qualified person during the whole of the five year period (as required by Regulations 15(1)(b) and 4, including 4(1)(d)(ii) and (iii)). I directed that the decision should be remade at a resumed hearing before me. I preserved the findings of the FTTJ as they related to the periods outside May 2011-August 2012. Given the terms of paragraph 6 of the grounds of appeal and Ms Brocklesby-Weller's oral submissions at the hearing in January 2016, I found that there remained outstanding the issue of whether the appellant had demonstrated that he fulfilled the criteria in Regulation 4(1)(ii) and 4(2)(b), namely the existence of comprehensive sickness insurance cover for his former wife and himself for the period May 2011 - August 2012. This was the issue is to be decided at the resumed hearing in the Upper Tribunal.
7. Thus the matter has come before me today.
8. Ms Beach, for the appellant, accepted that there was no documentary evidence of the existence of comprehensive sickness cover either for the appellant or his former wife during the material period. She accepted that appellant was in some difficulty with regard to demonstrating he was entitled to a permanent residence card under Regulation 15. However, she submitted he had retained a right of residence under Regulation 10.
9. Ms Brocklesby-Weller, for the respondent, accepted that the appellant fulfilled the criteria in Regulation 10 and that he had retained a right of residence in the UK. Given the evidence before the FTTJ and before me now, I agree with the oral submissions to that effect.
10. I indicated to the parties that I would remake the FTTJ's decision, allowing the appeal on the ground that, the respondent's decision having been made under both Regulation 10 as well as Regulation 15, that decision was not in accordance with the Regulation 10, the respondent's representative having conceded as much at the hearing before me. Both parties' representatives agreed that was the correct approach. Thus I find that the appellant has demonstrated that he fulfils the criteria in Regulation 10 and that he has retained the right of residence in the UK. He does not have a right of permanent residence, under Regulation 15.

Decision Notice
11. Having previously set aside the decision of the FTTJ, I remake that decision and allow the appeal under the EEA Regulations.

Signed A M Black Date 4 April 2016
Deputy Upper Tribunal Judge A M Black

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.

Fee Award
I maintain the fee award made by the First-tier Tribunal Judge, the decision of the Judge having been set aside and remade, allowing the appeal.

Signed A M Black Date 4 April 2016
Deputy Upper Tribunal Judge A M Black