IA/36374/2014
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The decision
IAC-YW-LM-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/36374/2014
THE IMMIGRATION ACTS
Heard at Field House
Determination Promulgated
On 29 April 2015
On 13 May 2015
Before
DEPUTY UPPER TRIBUNAL JUDGE PEART
Between
MR WASEEM WAQAR
(anonymity direction NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Singh of Malik Law Chambers Solicitors
For the Respondent: Mr Kandola, Senior Home Office Presenting Officer
DECISION AND REASONS
1. The appellant is a citizen of Pakistan, born on 11 October 1986.
2. He appealed against the respondent's refusal to issue him with a residence card dated 2 September 2014. The appeal was heard by Judge Holder who, in a decision promulgated on 7 January 2015, allowed the appellant's appeal "...... on immigration grounds". Further, the judge said that the appellant was entitled to a residence card subject to production of his original passport.
3. The respondent's grounds claim that the judge materially erred in law by allowing the appellant's appeal outright instead of remitting it back to the respondent for consideration under Regulation 17(4) of the 2006 EEA Regulations. That was because the judge failed to follow the correct approach as indicated in headnote (iii) of Ihemedu (OFMs - meaning) Nigeria [2011] UKUT 00340 (IAC).
Submissions on Error of Law
4. Mr Singh conceded the judge erred and asked me to remit the appeal to the respondent, which submission was supported by Mr Kandola.
Conclusion on Error of Law
5. The judge erred in allowing the appeal outright. See Ihemedu headnote (iii):
"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 being not 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."
6. I remake the decision by allowing the appeal as being not in accordance with the law so that the Secretary of State can consider whether to exercise her discretion.
Decision
Appeal allowed.
No anonymity direction is made.
Signed Date 6 May 2015
Deputy Upper Tribunal Judge Peart
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/36374/2014
THE IMMIGRATION ACTS
Heard at Field House
Determination Promulgated
On 29 April 2015
On 13 May 2015
Before
DEPUTY UPPER TRIBUNAL JUDGE PEART
Between
MR WASEEM WAQAR
(anonymity direction NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Singh of Malik Law Chambers Solicitors
For the Respondent: Mr Kandola, Senior Home Office Presenting Officer
DECISION AND REASONS
1. The appellant is a citizen of Pakistan, born on 11 October 1986.
2. He appealed against the respondent's refusal to issue him with a residence card dated 2 September 2014. The appeal was heard by Judge Holder who, in a decision promulgated on 7 January 2015, allowed the appellant's appeal "...... on immigration grounds". Further, the judge said that the appellant was entitled to a residence card subject to production of his original passport.
3. The respondent's grounds claim that the judge materially erred in law by allowing the appellant's appeal outright instead of remitting it back to the respondent for consideration under Regulation 17(4) of the 2006 EEA Regulations. That was because the judge failed to follow the correct approach as indicated in headnote (iii) of Ihemedu (OFMs - meaning) Nigeria [2011] UKUT 00340 (IAC).
Submissions on Error of Law
4. Mr Singh conceded the judge erred and asked me to remit the appeal to the respondent, which submission was supported by Mr Kandola.
Conclusion on Error of Law
5. The judge erred in allowing the appeal outright. See Ihemedu headnote (iii):
"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 being not 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."
6. I remake the decision by allowing the appeal as being not in accordance with the law so that the Secretary of State can consider whether to exercise her discretion.
Decision
Appeal allowed.
No anonymity direction is made.
Signed Date 6 May 2015
Deputy Upper Tribunal Judge Peart