Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/36647/2014

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 29th July, 2016 Given
Extempore Signed and
sent for Promulgation
on 5th August, 2016
On 10th August, 2016

Before

Upper Tribunal Judge Chalkley

Between

MR GEORGE MARTIN MCCARTHY
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Miss Mair of Counsel
For the Respondent: Mr Harrison, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Jamaica who was born on 10th July, 1961 and on 15th November, 2002 he married a Shirley McCarthy, formerly Shirley Madden, a British and Irish dual national.

2. He entered the United Kingdom on 12th May, 2002, as a visitor and was subsequently served with a removal notice on 7th July, 2013. He claimed asylum, but this was refused on 16th June, 2014 and that decision was subsequently withdrawn on 23rd June, 2011. On 26th March, 2004, he sought indefinite leave to remain as a spouse of an EEA national which was refused without a right of appeal on 9th July, 2004. At the time he had exhausted appeal rights. On 4th July, 2004, he sought a residence card and although the original refusal was reconsidered, it was subsequently maintained on 20th April, 2007.

3. On 1st May, 2014 the appellant sought a derivative residence card as confirmation of a right of residence as the principal carer of a British citizen on the basis of the ECJ judgment in the case of Ruiz Zambrano C3409 and he appealed under Regulation 26 of the Immigration (European Economic Area) Regulations 2006 (even though it must have been clear to those advising him that he could not qualify) and, or Section 82 of the Nationality, Immigration and Asylum Act 2002, against the respondent's decision taken on 4th August, 2014, to refuse to issue a derivative residence card. This appeal has a lengthy, very complicated and sad history.

4. The appellant appealed to the First-tier Tribunal and his appeal was heard by First-tier Tribunal Judge Simpson in Manchester on 4th February, 2015. In her determination, she concluded that the appellant was not entitled to a derivative residence card, because he was not his wife's primary carer, since either of her daughters could take the role, they were both exempt persons for the purposes of the Regulations and his wife would still be able to reside within the EU or EEC even if the appellant were required to leave the UK, particularly as she has three adult daughters living within a ten mile radius of her home. The judge was aware of the fact that the appellant had applied to the Secretary of State for leave to remain on the basis of his Article 8 rights and she made various findings and concluded in the light of those findings that she would allow the appeal to the extent that it still remained for the Secretary of State to make an Article 8 decision based on her findings.

5. Today the appellant sought to challenge Judge Simpson's decision, arguing that a residence card should have been issued and that the judge should have made the decision under Article 8 and allowed the appellant's appeal outright. The respondent cross appealed, arguing that Judge Simpson correctly refused the EEA Regulations appeal and arguing that the judge should not have made an Article 8 decision, because the appeal was an EEA Regulations appeal.

6. After hearing much argument and both representatives taking further instructions, it now transpires that the Secretary of State has, since the hearing of the appeal, considered the appellant's Article 8 application, but did so ignoring the findings made by Judge Simpson, as a result of which the appellant has given Notice of Appeal to the First-tier Tribunal. So there is also an appellant's appeal pending in the First-tier.

7. For the Secretary of State, Mr Harrison maintains that the decision to refuse the derivative residence card was a correct decision in law, because the appellant is not his wife's primary carer. He has also pointed out that at the time the judge made her decision she did not err in making findings in respect of the appellant's Article 8 claim and not allowing it outright. Miss Mair, for the appellant, agrees and they have both agreed, in my view sensibly, that this appeal should be dismissed.

8. Counsel and the Presenting Officer have both agreed that Judge Simpson did not make any error of law and consequently I uphold the decision made by her.

9. In doing so I hope that the decision of Judge Simpson will be placed before the First-tier Tribunal Judge during the course of the appellant's Article 8 appeal and I hope also that a copy of this determination will be placed before the judge.

10. I find that Judge Simpson did not make any error of law in her determination which will stand. The appeal under Regulation 15(a) of the Immigration (EEA) Regulations 2006 is dismissed. The human rights appeal is still to be decided in the light of the findings made by Judge Simpson.

Richard Chalkley
Upper Tribunal Judge Chalkley

TO THE RESPONDENT
FEE AWARD
I have dismissed the appeal and therefore there can be no fee award.

Richard Chalkley
Upper Tribunal Judge Chalkley