Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/26845/2015

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 22nd December 2016
On 29th December 2016

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

Mr Sultan Abdullah Mohammed Al-Katheri
(Anonymity Direction Not Made)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellants: Mr M Aslam instructed by UK Immigration Legal Services
For the Respondent: Mr E Tufan, Senior Home Office Presenting Officer

DECISION AND REASONS

The Appellant
1. The appellant, a national of the Yemen born on 6th June 1976 appeals with permission against the decision of First-tier Tribunal Judge Boylan-Kemp dismissing the appellant's appeal under the Immigration (European Economic Area) Regulations 2006. The appellant married a Polish national in a civil registry in February 2008. There was no challenge to the fact that the appellant or the sponsor had remained in the UK between those periods for the purposes of the EEA Regulations and indeed the appellant was issued with an EEA residence permit on 18th November valid until 18th November 2014. In August 2013 the sponsor applied for naturalisation as a British citizen which was granted in October 2013.
2. First-tier Tribunal Judge Boylan-Kemp dismissed the appeal on the basis that when the appellant applied for his EEA residence permit his wife was a British national.
3. Permission to appeal was granted by Deputy Upper Tribunal Judge Storey on the basis that the acquisition by the sponsor would have occurred after the appellant had qualified for permanent residence.
4. At the hearing before me in the Upper Tribunal it was noted that the appellant's qualification for permanent residence under the Immigration (European Economic Area) Regulations 2006 would have occurred after the period of five years, commencing with the marriage in February 2008 and ending in February 2013. This indeed was prior to any application made by the sponsor for naturalisation and the 'bite' of Regulation 2 (1) of the EEA Regulations (a British citizen is not, for the purposes of the Regulations at least, an EEA national). The legal authorities OA (EEA -retained right of residence) Nigeria [2010] UKAIT 00003 and Idezuna (EEA - permanent residence) Nigeria [2011] UKUT 00474 (IAC) both indicate that a family member may acquire a right of permanent residence on the basis of historical facts. The grant of the residence cards in these circumstances would simply have been declaratory.
5. Mr Tufan, very sensibly in my view, indicated that he would concede the appeal and that the matter therefore could be resolved by consent. He agreed as was found by the First-tier Tribunal Judge that as the sponsor had been granted naturalisation as a British citizen then she would have been found to have been exercising treaty rights for the relevant period. This is reinforced by the fact that the appellant himself was granted a residence card as recorded above.
6. In the light of this I indicated that the decision of First-tier Tribunal Judge would be set aside and the decision remade allowing the appeal by consent. I therefore allow the appeal by way of consent under Rule 39 (1) of The Tribunal Procedure (Upper Tribunal) Rules 2008 because, in the circumstances, I consider it appropriate to dispose of the proceedings in this way.

Order
Appeal Allowed

Signed Date 22nd December 2016

Upper Tribunal Judge Rimington