IA/21588/2015

• Status of case: Unreported
• Hearing date: 9 Nov 2016
• Promulgation date: 10 Nov 2016
• Publication date: 31 Jul 2020
• Last updated on: 31 Jul 2020

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/21588/2015


THE IMMIGRATION ACTS


Heard at Field House
Decision Promulgated
On 09 November 2016
On 10 November 2016



Before

THE HON. LORD BANNATYNE
SITTING AS A JUDGE OF THE UPPER TRIBUNAL
UPPER TRIBUNAL JUDGE CANAVAN


Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

IME OFFIONG EDEM
Respondent


Representation:
For the Appellant: Mr S. Staunton, Senior Home Office Presenting Officer
For the Respondent: No appearance


DECISION AND REASONS
1. For the sake of continuity we will refer to the parties as they were before the First-tier Tribunal although technically the Secretary of State is the appellant in the appeal to the Upper Tribunal.
2. The appellant appealed against the respondent's decision to refuse to issue a residence card recognising his right of residence in the UK as the extended family member (partner in a durable relationship) of an EEA national.
3. First-tier Tribunal Judge Herbert ("the judge") allowed the appeal in a decision promulgated on 03 June 2016. He made unchallenged findings that the appellant was likely to be in a durable relationship with his EEA partner and therefore met the requirements of regulation 8(5) of The Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations 2006"). His final conclusion was as follows:
"25. I therefore allow this appeal on a balance of probabilities for the reasons set out above. The Appellant is entitled to have his application for a Residence Card granted as confirmation of a right to reside in the United Kingdom under Regulation 8(5) of the Immigration (EEA) Regulations 2006."
4. The respondent seeks to challenge the decision on the ground that it was an error of law for the First-tier Tribunal to find that there was an entitlement to a residence card in light of the Tribunal's decision in Ihemedu (OFM's - meaning) Nigeria [2011] UKUT 00340.
5. The appellant's representatives made an adjournment request the day before the hearing on the ground that his representative could not attend because an "emergency bail application" elsewhere. The application was refused because the appellant could attend and address the Tribunal given that it was a straight forward matter. There was no appearance by or on behalf of the appellant at the hearing. No explanation was provided for his absence. In the circumstances of this particular case we considered that we were able to proceed with the hearing in the absence of the appellant.
6. In light of the decision in Ihemedu we find that the First-tier Tribunal made a clear error of law. Mr Staunton accepted that there was no challenge to the judge's substantive findings relating to regulation 8(5). In consequence, only the final paragraph of the decision, which wrongly finds that the appellant has an entitlement to a residence card, is set aside.
7. All that is required in terms of remaking is to make clear that the respondent retains discretion whether to issue a residence card in accordance with regulation 17(4). We remake the decision and allow the appeal on the ground that the respondent's decision is not in accordance with the EEA Regulations 2006.

DECISION
The First-tier Tribunal decision involved the making of an error on a point of law
We remake the decision and ALLOW the appeal

Signed Date 09 November 2016
Upper Tribunal Judge Canavan