Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/36761/2013
IA/36769/2013
IA/36791/2013
IA/36795/2013

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 13 January 2015
On 10 April 2015

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL GA BLACK

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

S O I + 3 claimants
(anonymity direction MADE)

Claimants

Remaking of DECISION AND REASONS

1. This is a remaking of a decision and reasons following a decision dated 15th January 2015 that there was a material an error of law in the First-tier Tribunal's decision in allowing the appeal on the grounds that the decision made was not in accordance with the Law. The Tribunal's decision that Regulation 6 (Immigration (EEA) Regulations 2006) ("EEA Regs.") was met was set aside. Directions were issues following the error of law hearing for written submissions on the applicability of Regulation 15A and Article 8 ECHR.
2. I refer to the Upper Tribunal decision dated 15th January 2015 for the background facts and procedural history. I have considered the written submissions provided by the Claimants representatives. There were no written submissions from the Secretary of State.
3. The Tribunal erred by finding that the relevant EEA national, the Claimants step-father, was a "qualified" person under Regulation 6 (EEA Regs.), where there was no evidence to support that claim as at the date of hearing (Boodhoo & another (EEA Regs.:relevant evidence [2013] UKUT 00346(IAC)). This amounted to a material misdirection of law on a material matter. Notwithstanding that the Tribunal relied on the evidence of the EEA national's estranged spouse, her evidence as to her husband's employment was limited in time to the date he left the matrimonial home in December 2013.
4. In considering the matter further I take into account that the application was originally considered under Regulations 6, 7 and 17 (EEA Regs.) and that the Immigration decision was a refusal of a residence card (No further basis of stay in the UK). The Secretary of State gave no consideration to either Article 8 under or outside of the Rules or to where the best interests of the children lie. The Claimants are either under eighteen years or in some form of education. There is no information about the Claimants father.
5. It appears to have been part of the Claimants case before the First-tier Tribunal that their mother had established a retained right of residence, however this matter has not been considered nor determined as she was not a party to the proceedings. She has a right of residence until December 2015 which is derived from her former husband. In addition submissions are made that the Claimants have established derived rights of residence under Regulation 15A EEA Regs. This matter has not been considered by the Secretary of State and there is no evidence as to the location of the Claimants step father who it has been found is not a "qualified " person. As there is no immediate risk of removal Article 8 does not fall to be considered. Accordingly the only matter outstanding is the failure to consider where the best interests of the children lie.
Decision
6. I remake the decision substituting a decision to allow the appeal on the grounds that the decision made was not in accordance with the law, to the limited extent that the matter is remitted to the Secretary of State for reconsideration of the best interests of the children.

Direction Regarding Anonymity - rule 13 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014

Unless and until a tribunal or court directs otherwise, the Claimants are granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings. Three of the Claimants are under the age of 18 years.

Signed Date 1.4.2015

GA Black
Deputy Judge of the Upper Tribunal

TO THE RESPONDENT
FEE AWARD

No fee award made.

Signed Date 1.4.2015

GA Black
Deputy Judge of the Upper Tribunal