Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA380642014
ia360622014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6 June 2016
On 16 June 2016
Given orally at the hearing

Before

UPPER TRIBUNAL JUDGE MCGEACHY

Between

Secretary of State for the Home Department
Appellant
and

ERMAL HABILAJ
ELENA LAVINIA BEJAN
Respondents

Representation:

For the Appellant: Ms Brocklesby-Weller, Home Office Presenting Officer
For the Respondents: Mr M Cogan, Counsel instructed by Malik & Malik Solicitors

DECISION AND REASONS

1. This is an appeal of the Secretary of State against a decision of Judge of the First-tier Tribunal Bird who in a determination promulgated on 24 November 2015 allowed the appeals of Ermal Habilaj and Elena Lavinia Bejan against two decisions of the Secretary of State, the first to curtail the leave of Ms Bejan on the basis that although she had had leave to remain as an extended family member of an EEA national she had entered into a marriage of convenience and secondly, to refuse the application for leave to remain of Mr Habilaj who had applied for leave to remain as the partner of a woman who had leave to remain as an extended family member under the Immigration (EEA) Regulations 2006. For ease of reference I will refer in this determination to the Secretary of State as the respondent as she was the respondent in the First-tier Tribunal and I will refer to Mr Habilaj and Ms Bejan as the appellants as they were the appellants in the First-tier.

2. The judge made clear and unequivocal findings that this was a genuine marriage. She found the parties were credible and accepted their evidence. On that basis she allowed the appeals.

3. There is a certain lack of clarity in the application made by the Secretary of State as to what exactly has been challenged but that has been clarified by Ms Brocklesby-Weller this morning when she made it clear that there is no challenge to the decision of the judge to allow the appeal of Ms Bejan. I therefore have to deal solely with the appeal of Mr Habilaj.

4. The clear finding of the judge was that this was a genuine marriage and that is why she allowed the appeal. However, there is a distinction in the Regulations between family members under Regulation 7 and extended family members under Regulation 8. Insofar as the Regulations deal with extended family members I have to consider the provisions of Regulation 17(4). The terms of that are that the Secretary of State may issue a residence card to an extended family member not falling within Regulation 7(3) who is not an EEA national. The term 'may' gives to the Secretary of State a discretion and therefore this was an issue where the judge having made clear findings should have remitted the appeal to the Secretary of State for further consideration to consider the exercise of the discretion set out in Regulation 17(4). The judge made an error of law in allowing the appeal outright rather than allowing it to the extent that it was remitted to the Secretary of State for the Secretary of State to consider the application taking into account findings made by the Judge on the status of Mr Habilaj. I therefore set aside the decision of the judge insofar as it relates to Mr Habilaj but only to the extent that rather than allowing the appeal outright I consider that the appeal should be allowed to the extent that it is remitted to the Secretary of State and that is what I now do.

Notice of Decision

The appeal is remitted to the respondent to consider the granting of the appropriate residence permit to the appellant as the spouse of an EEA national.

Signed Date 16 June 2016

Upper Tribunal Judge McGeachy