Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/34016/2015

THE IMMIGRATION ACTS

Heard at North Shields
Decision & Reasons Promulgated
On 3 February 2017
On 6 February 2017
Prepared on 3 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE JM HOLMES

Between

H. L.
(ANONYMITY DIRECTION)
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Brakaj, Solicitor, Iris Law Firm
For the Respondent: Mr Diwnycz, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a citizen of China. She applied for the issue to her of a residence card as confirmation of a permanent right of residence, on the basis she was the family member of an EEA national, which was refused on 27 October 2015. The application was by reference to the Immigration (European Economic Area) Regulations 2006 ["EEA Regulations"] and disclosed a relationship with a Portugese national, to whom she had borne two school age children.
2. The application was refused on the basis the Respondent was not satisfied that the Appellant's partner had exercised treaty rights for a continuous period of five years or more in accordance with the EEA Regulations. Second it was noted that she was not married to the EEA national in question, so could only rely upon the existence of a durable relationship, as an EFM. Since she had accepted in her application that their relationship had broken down it was considered that she could not meet the requirements of Regulation. Third, it was noted that although her children were said to be in education, there was no evidence provided with the application to establish this. Thus the derivative rights potentially available to her under Regulation 15A(4) were said to be unavailable to her.
3. The decision did therefore consider whether the appellant qualified for a derivative right to reside in the UK, and concluded not that she was unable to make such a claim, but that it was not evidenced adequately. The Respondent did not dispute that the Appellant was the mother of two children whose father was an EEA national, or, that they were of compulsory school age, or, that she was their primary carer.
4. The Appellant appealed to the First Tier Tribunal against that refusal, and her appeal was heard, and then dismissed, by First Tier Tribunal Judge Fisher in a decision promulgated on 15 September 2016.
5. The Appellant sought permission to appeal that decision to the Upper Tribunal in grounds that also double as the skeleton argument relied upon in support of the appeal. Permission was granted by First Tier Tribunal Judge Hodgkinson on 15 December 2016 on the basis it was arguably wrong of the Judge to refuse to accept jurisdiction to deal with the appellant's arguments concerning the refusal to recognise that she was entitled to a derivative right of residence. Permission was refused in relation to a second complaint concerning the dismissal of the appeal concerning her claim to be entitled to a permanent right of residence.
6. The Respondent served a Rule 24 response dated 4 January 2017 stating simply that it was not clear how the Appellant could have succeeded in a claim to a derivative right of residence on the facts.
7. Thus the matter comes before me.
Error of Law?
8. It was common ground before me that there were no specific requirements for an application for the recognition of a derivative right of residence, and that the Appellant had in fact done all that could be expected of her when making an application. She had set out her circumstances in full. The Respondent had considered what she had said, and had been alert to the possibility that she might satisfy the requirements for a derivative right of residence as the mother of her children, even if she did not in fact meet the requirements for a permanent right of residence as the family member of the father of her children. Mr Diwnycz therefore accepted from the outset that the Judge had erred in declining to consider the claim to a derivative right of residence under Regulation 15A.
9. It was common ground before me that the Respondent had never disputed that the Appellant's children were the children of a Portugese national, or, that she was their primary carer. Although the decision maker had said that insufficient evidence had been provided to show that either of those children was in education at any material date, it was accepted before me that such evidence did exist within the material supplied in support of the application. Moreover such material clearly existed in the evidence supplied in support of the appeal. Mr Diwnycz did not seek to suggest that there was any basis upon which this could have been disputed, and accepted that it was not disputed at the hearing of the appeal.
10. The evidence before the decision maker and the Tribunal also disclosed that the children's father had from time to time been working in the UK, and thus met for at least those times the definition of a "worker". He may not have been able to produce the necessary evidence to establish five years continuous residence as a "qualified person", but he had certainly produced evidence in the form of P60s to show that in 2013, 2014 and 2015 he had full year employment. There was also evidence to show that he had remained in employment to the date of the hearing. Thus, as Mr Diwnycz accepted, the evidence showed that he was at least during these years in employment in the UK whilst the children were in education in the UK.
11. If the father of the children was no longer in a durable relationship with the Appellant, which was the position taken in refusing the application for a permanent residence card, then that begged the question of what relationship he enjoyed with his children thereafter, and whether they would be able to continue to be educated in the UK in the event the Appellant were required to leave. In practical terms the Appellant's position was that they would be bound to be forced to leave the UK to accompany her, if she were required to leave.
12. Mr Diwnycz conceded before me upon due reflection that the application and appeal had been wrongly refused by reference to Regulation 15A. In the light of that, it was confirmed by Ms Brakaj that the Appellant would not seek to advance any argument to suggest that the application and appeal had been wrongly refused in relation to the claim to a permanent residence card. She would simply advise the Appellant to make a fresh application once she was able to demonstrate the necessary evidence to establish such a claim.
13. There was never a removal decision in relation to the Appellant, and the decision under appeal did not contain a s120 notice to the Appellant, and it is not suggested by either party that one was served otherwise. In the light of the guidance to be found in Amirteymour [2015] UKUT 466, and, TY (Sri Lanka) [2015] EWCA Civ 1233, I am satisfied that the Tribunal was obliged to confine itself to the claim under the EEA Regulations, and that the Appellant was not entitled to argue that the decision under appeal was a breach of her Article 8 rights.
Disposal
14. The parties were accordingly ultimately agreed that I should set aside the Judge's decision to dismiss the appeal, but, that I should only go on to remake that decision in her favour to the limited extent that the Appellant was entitled to the issue of a derivative residence card by reference to regulation 18A.

DECISION
The Determination of the First Tier Tribunal which was promulgated on 15 September 2016 did involve the making of an error of law that requires that decision to be set aside and remade.
I remake the decision so as to allow the appeal to the limited extent that the remake that decision in her favour to the limited extent that the Appellant was entitled to the issue of a derivative residence card by reference to regulation 18A.
Direction regarding anonymity - Rule 14 Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until the Tribunal directs otherwise the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to proceedings being brought for contempt of court.

Deputy Upper Tribunal Judge JM Holmes
Dated 3 February 2017