Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/22373/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 27 February 2017
On 6 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE DOYLE

Between

AIMEE BELLE CHARLYE MYRNA N M MEPAHT
(ANONYMITY DUIRECTION NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr I Chukwudolue of Moorehouse solicitors
For the Respondent: Mr S Kotas, Senior Home Office Presenting Officer
DECISION AND REASONS

1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.

2. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Majid promulgated on 26 September 2016, which dismissed the Appellant’s appeal

Background

3. The Appellant was born on 13/01/1984 and is a national of Gabon.

4. On 8 June 2015 the Secretary of State refused the Appellant’s application for an EEA Residence card.

The Judge’s Decision

5. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Majid (“the Judge”) dismissed the appeal against the Respondent’s decision.

6. Grounds of appeal were lodged and on 23 January 2017 Judge Page gave permission to appeal stating inter alia

The appellant has identified arguable errors of law in the Judge’s decision that could have made a material difference to the outcome. The complaint is that the Judge failed to take into account the substance of the evidence in the appellant’s bundle. Given the brevity of the decision and the lack of reference to the evidence that the appellant has relied on these grounds are clearly arguable. The Judge has said that the appellant’s husband was not exercising treaty rights under the regulations. The appellant’s complaint is that the Judge failed to rely on or make any reference to the employer’s letter dated 6 September 2016 contained in the appellant’s bundle to show that he had had been employed by the company since 2009 and that there were six months’ payslips and bank statements to show that the appellant’s EEA husband was in fact exercising treaty rights under the regulations. These grounds of appeal are clearly arguable so permission to appeal is granted.

The Hearing

7. Mr Chukwudolue, for the appellant, told me that parties’ agents have had discussions which had led to the resolution of this appeal. He simply moved the grounds of appeal and invited me to hear from Mr Kotas.

8. Mr Kotas, for the respondent, told me that the respondent no longer opposes the appeal. The respondent now accepts that the appellant’s bundle contains adequate evidence that the appellant’s EEA national spouse was exercising treaty rights at the date of the hearing. As a result, the respondent concedes the appeal in its entirety. He asked me to set the decision aside, and to substitute my own decision allowing the appellant’s appeal under the 2006 regulations.

9. It is now a matter of concession that the decision is tainted by a material error of law. The bundle prepared to for the appellant, which was before the First-tier Judge, contained a reference from the EEA national’s employer demonstrating that he had been in continuous employment since 2009. The bundle contains six months’ payslips and bank statements which adequately demonstrate that the EEA national was exercising treaty rights under the regulations.

10. The Judge’s decision makes no reference to the documentary evidence. There is no support for the final sentence at [15]. [16] of the decision clearly demonstrates that inadequate, if any, consideration is then given to the documentary evidence. The decision does not contain findings of fact relating to the evidence that was before the Judge. These are clearly material errors of law. I must set the Judge’s decision aside.

11. There is no longer a dispute about the facts in this case. The respondent concedes that the appellant meets the requirements of the Immigration (EEA) Regulations, and now departs from the decision to refuse to issue a residence card made on 8 June 2015. I am, therefore, able to substitute my own decision.

12. The appeal is allowed. The appellant meets the requirements of the Immigration (EEA) Regulations and is entitled to a residence card.

Decision
13. The decision of the First-tier Tribunal is tainted by material errors of law.
14. I set aside the Judge’s decision promulgated on 26 September 2016.
15. I substitute my own decision. The appellant’s appeal against the respondent’s decision dated 8 June 2015 is allowed.

Signed Date 1 March 2017

Deputy Upper Tribunal Judge Doyle