Tribunal decisions

The decision

The Upper Tribunal
(Immigration and Asylum Chamber) Appeal number: IA/37670/2013
IA/43502/2013

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On December 23, 2014
On December 29, 2014

Before

DEPUTY UPPER TRIBUNAL JUDGE ALIS

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MRS KUMUTHINI AKILIAN
MR KANDIAH AKILAN
(NO ANONYMITY DIRECTION MADE)
Respondents

Representation:
For the Appellant: Mr Walker (Home Office Presenting Officer)
For the Respondent: Ms Jegarajaj, Counsel, instructed by Jacobs & Co Solicitors

DETERMINATION AND REASONS

1. Whereas the original respondent is the appealing party, I shall, in the interests of convenience and consistency, replicate the nomenclature of the decision at first instance.

2. The appellants, born September 23, 1977 and April 18, 1978, are citizens of Sri Lanka. The second-named appellant entered the United Kingdom in September 2006 and the first-named appellant joined him as his dependant in February 2007. Their leave was extended as student and dependant until December 31, 2009. Applications were made for asylum but these were refused and then two applications for residence cards under the Immigration (EEA) Regulations 2006 were made with the most recent being submitted on December 27, 2012. These were refused by the respondent on September 3, 2013 and the appellants appealed to the First-tier Tribunal under Section 82(1) of the Nationality, Immigration and Asylum Act 2002 and Regulation 26 of the 2006 Regulations on September 13, 2003 and on October 8, 2014 Judge of the First Tier Tribunal Cooper (hereinafter referred to as the "FtTJ") heard their appeals and in determination promulgated on October 23, 2014 he allowed their appeals on the limited basis that they be remitted back to the respondent to consider exercising her discretion under Regulation 17(4) of the 2006 Regulations.

3. The respondent lodged grounds of appeal on September 6, 2014 and on November 19, 2014 Judge of the First-tier Tribunal Lambert gave permission to appeal finding there were arguable grounds that the FtTJ had erred.

ERROR OF LAW SUBMISSIONS

4. Mr Walker relied on the grounds of appeal save he accepted the sponsor was a Danish national and had been exercising treaty rights here since 2000. He submitted the first-named appellant had neither been a member of the EEA national's family household prior to coming to the United Kingdom nor had been maintained in Sri Lanka. He accepted she was now a member of the sponsor's household and was being maintained. With regard to the second-named appellant he submitted there was no basis for his appeal to succeed because he was not a member of the sponsor's household as he married the first-named appellant about ten days before he came to the United Kingdom.

5. Ms Jegarajaj relied on the FtTJ's determination and the decision of Dauhoo (EEA Regulations-Reg 8(2)) UKUT 79 (IAC). She submitted the FtTJ made findings of maintenance and support for the first-named appellant in both Sri Lanka and the United Kingdom. The findings were unchallenged and it was accepted that the first-named appellant was part of the sponsor's household in the United Kingdom and that she was also supported here. The FtTJ accepted that the financial support in Sri Lanka did not need to be immediately prior to her coming to the United Kingdom. There was no merit in the respondent's appeal. As regards the second named-appellant his appeal was always contingent on his wife's appeal and there was no error in asking the respondent to exercise his discretion in both appeals at the same time because if the wife's appeal was allowed his would be also.

6. Mr Walker conceded that there had been no challenge to the FtTJ's findings and that there was no requirement to be a member of a household. He further accepted the FtTJ's finding that there was no need for immediate prior financial dependency.

ERROR OF LAW ASSESSMENT

7. I considered the Tribunal decision of Dauhoo, as did the FtTJ. The FtTJ's findings are unchallenged. It was her interpretation of the law that brought this matter before me.

8. The Tribunal in Dauhoo made clear that an appellant can succeed if they can show prior dependency and present dependency or prior dependency and present membership of a household.

9. This had been accepted by the FtTJ and nothing Mr Walker submitted changed those findings. The FtTJ found she had been maintained in Sri Lanka and it was not disputed she was either maintained or was part of the EEA national's household here.

10. There was no material error in the FtTJ's findings in respect of either appellant. The second-named appellant's decision is wholly dependent on the outcome of his wife's decision. If the respondent exercises her discretion in her favour then he will in his.

11. I therefore dismiss the appeal.

Decision

12. The decision of the First-tier Tribunal did not disclose an error in law. The original decision shall stand.

13. Under Rule 14(1) The Tribunal Procedure (Upper Tribunal) Rules 2008 (as amended) an appellant can be granted anonymity throughout these proceedings, unless and until a tribunal or court directs otherwise. No such order was made in the First-tier and I see no reason to make such an order now.

Signed: Dated: December 29, 2014

Deputy Upper Tribunal Judge Alis

TO THE RESPONDENT

I leave the fee award as it was.

Signed: Dated: December 29, 2014

Deputy Upper Tribunal Judge Alis