Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: iA/22910/2015

THE IMMIGRATION ACTS

Heard at Centre City Tower, Birmingham
Decision & Reasons Promulgated
On 11 January 2017
On 13 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE MONSON

Between

Secretary of State for the Home Department
Appellant
and

Ms priscilla jlay
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr D. Mills, Specialist Appeals Team
For the Respondent/Claimant: Mrs Imamovic, Counsel instructed by TRP Solicitors

DECISION AND REASONS
1. The Secretary of State has appealed to the Upper Tribunal from the decision of First-tier Judge Watson whereby he allowed the claimant's appeal against the decision to refuse to issue her with a residence card as confirmation of her right to reside in the UK as the spouse of an EEA national who has acquired a permanent right of residence in the United kingdom. The First-tier Tribunal did not make an anonymity direction, and I do not consider that the claimant requires anonymity for these proceedings in the Upper Tribunal.
2. The sole issue in the appeal was whether the claimant's estranged EEA national husband was a worker or self-employed person who had ceased activity as defined in Regulation 5, and who had thereby acquired a right to reside in the United Kingdom permanently under Regulation 15(1)(c) so as to confer upon the claimant a derivative right of residence.
3. The appellant was not represented at the hearing before Judge Watson which took place in Birmingham on 11 March 2016. The claimant had previously asserted that her husband was a qualified person because he was self-sufficient. However, in her grounds of appeal to the First-tier Tribunal she clarified that her case was that he had been granted permanent residence as a result of a permanent incapacity to work, and the other requirements of Regulation 5(3) being satisfied.
4. The claimant was represented by Counsel, who handed in a skeleton argument. The judge received oral evidence from the claimant, and took into account the fact that the husband had been receiving Disability Living Allowance since the year 2000. He concluded on the balance of probabilities that the husband satisfied the requirements of Regulation 5, and that he had thereby acquired a right of permanent residence under Regulation 15(1)(c).
5. Mr Tufan of the Specialist Appeals Team settled an application for permission to appeal. He pleaded inter alia that the judge had been wrong to hold that the husband had been issued with a certificate which was "indefinite" and that the husband could not "on the factual matrix of his circumstances" qualify for permanent residence under the Regulations. Designated Judge Appleyard granted permission to appeal on 26 August 2016 as he considered that the grounds of appeal disclosed arguable errors of law.
6. At the hearing before me to determine whether an error of law was made out, Mr Mills volunteered new information that was not before the First-tier Tribunal. Having conducted an investigation, he had established that the husband had been issued with a registration certificate in 2011 because he was recognised as being a worker who had ceased activity due to permanent incapacity.
Discussion
7. The registration certificate was before the First-tier Tribunal. The judge was wrong to characterise this document as conferring upon the claimant an indefinite right of residence.
8. However, the judge's error is not material as he made a parallel finding that the husband had acquired a right of permanent residence, and this finding is sustainable for the other reasons which the judge gave. The inference which he drew from the other pieces of evidence which he expressly considered has been vindicated by the additional information provided by Mr Mills. It is not now disputed by the appellant that the husband has acquired a right of permanent residence, albeit that he has not yet applied for or been issued with a permanent residence card as confirmation of this.

Notice of Decision

9. The decision of the First-Tier Tribunal did not contain an error of law, and the decision stands. This appeal to the Upper Tribunal is dismissed.

I make no anonymity direction.

Signed Date

Deputy Upper Tribunal Judge Monson