IA/27004/2014

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The decision



Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/27004/2014


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 19 September 2016
On 17 October 2016



Before

DEPUTY UPPER TRIBUNAL JUDGE HILL QC


Between

Secretary of State for the Home Department
Appellant
and

BESMIR AHMETAJ
(anonymity direcTION NOT MADE)
Respondent


Representation:
For the Appellant: Mr S Kandola, Home Office Presenting Officer
For the Respondent: Mr B Lams, Counsel instructed by J D Spicer Zeb Solicitors


DECISION AND REASONS

1. This is an appeal brought by the Secretary of State in relation to a decision of First-tier Tribunal Judge Oliver promulgated on 10 June 2015. The appellant before the First-tier Tribunal was a 26 year old Albanian who had entered the United Kingdom illegally in 2011. He was served with notice of his liability to removal in 2013 and sought a residence card under the Immigration (European Economic Area) Regulations 2006. That was refused. He subsequently claimed to be a family member of a Romanian citizen who had been working in Colchester since July 2013. The judge considered the evidence and came to the conclusion that the necessary family relationship had been demonstrated and proceeded to allow the appeal.

2. The matters raised in the grounds of appeal are that in the light of the First-tier Tribunal's finding in relation to the relationship, the proper course was to send the matter back to the Secretary of State in order that she might exercise her discretion under Regulation 17(4) of the EEA Regulations rather than allowing the appeal. The case of Ihemedu (OFMs - meaning) Nigeria [2011] UKUT 00340 (IAC) is of relevance and the head note contains the following summary:

"Regulation 17(4) makes the issue of a residence card to an OFM/extended family member a matter of discretion. Where the Secretary of State has not yet exercised that discretion the most an Immigration Judge is entitled to do is to allow the appeal as not being in accordance with the law leaving the matter of whether to exercise this discretion in the appellant's favour or not to the Secretary of State."

3. Mr Lams rightly concedes that the legal basis upon which the appeal is brought is sound and accordingly there is a material error of law in the decision of the First-tier Tribunal. That being the case, and with the concurrence of both parties, I set aside the decision of the First-tier Tribunal. It then falls to me to re-make that decision and both representatives agree that the proper course is to accept the factual findings of the First-tier Tribunal (which are not challenged) and remit the matter to the Secretary of State her to exercise the statutory discretion under Regulation 17(4).

Notice of Decision

The appeal is allowed and the decision of the First-tier Tribunal Judge is set aside as not in accordance with law. The findings of fact are preserved. The matter is remitted to the Secretary of State for her to exercise her discretion under the Immigration (European Economic Area) Regulations 2006.

No anonymity direction is made.


Signed Mark Hill Date 30 September 2016

Deputy Upper Tribunal Judge Hill QC