IA/38089/2013
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The decision
IAC-AH-SC-V2
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/38089/2013
THE IMMIGRATION ACTS
Heard at Field House
Decision & Reasons Promulgated
On 20th March 2015
On 9th April 2015
Before
DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS
Between
mr majid almekdady
(no ANONYMITY DIRECTION made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr B Buncock, Counsel
For the Respondent: Mr I Jarvis, Home Office Presenting Officer
DECISION AND REASONS
1. The Appellant is a citizen of the Netherlands born on 11th February 1961. On 7th May 2013 the Appellant's solicitors applied for a document certifying his permanent residence in the United Kingdom. Within that application the Appellant stated that he had been permanently incapacitated from 1st August 2007 up to and including the date of his application and provided documentation. On 4th September 2013 the Secretary of State refused the Appellant's application on the grounds that the Appellant did not meet Regulation 5(3) of the Immigration (European Economic Area) Regulations 2006 in that the Appellant had it was submitted failed to provide sufficient evidence to show that he had exercised treaty rights as a permanently incapacitated person. It was contended that the Appellant had not provided evidence that he had resided in the United Kingdom continuously for more than two years prior to the termination or that the incapacity is the result of an accident at work or an occupational disease that entitled him to a pension payable in full or in part by an institution in the United Kingdom. It was consequently decided to refuse the confirmation that the Appellant sought with reference to Regulations 15(1)(c) and 5(3) of the Immigration (EEA) Regulations 2006.
2. The Appellant appealed and the appeal came before Judge of the First-tier Tribunal Clapham at Taylor House on 5th November 2014. In a determination promulgated on 4th December 2014 the Appellant's appeal was allowed under the 2006 Regulations.
3. On 11th December 2014 the Secretary of State lodged Grounds of Appeal to the Upper Tribunal. The basis of those Grounds of Appeal were that the First-tier Tribunal Judge had failed to give adequate reasons for finding that the Appellant was unable to work due to his incapacity for the period September 2007 to May 2008. On 26th June 2014 First-tier Tribunal Judge Kelly granted permission to appeal. On 12th February 2015 a detailed Rule 24 response was served by the solicitors instructed by the Appellant.
4. It is on that basis that the appeal comes before me to determine whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. The Appellant appears by his instructed Counsel Mr Buncock. The Secretary of State appears by her Home Office Presenting Officer Mr Jarvis.
5. Mr Jarvis takes me to the medical report to be found in the Appellant's bundle and whilst contending that paragraph 12 of the First-tier Tribunal Judge's determination which assesses the medical report is not as specific as it could be having looked at the medical report he acknowledges that it shows more than the author of the Grounds of Appeal contend that it did and that he has to accept that the judge was entitled to consider the historical period and the history behind the Appellant's incapacity. On such basis Mr Jarvis indicates that, subject to the Tribunal being prepared to agree, he would wish to withdraw the Grounds of Appeal on behalf of the Secretary of State.
6. Having given this matter due consideration and pursuant to the Upper Tribunal Rules I grant permission to the Secretary of State to withdraw his appeal.
Notice of Decision
In such circumstances it is recorded that the appeal of the Secretary of State is withdrawn and the decision of the First-tier Tribunal do stand.
The First-tier Tribunal did not make an order pursuant to Rule 13 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. No application is made to vary that order and none is made.
Signed Date 23rd March 2015
Deputy Upper Tribunal Judge D N Harris
TO THE RESPONDENT
FEE AWARD
No fee is paid or payable and therefore there can be no fee award.
Signed Date 23rd March 2015
Deputy Upper Tribunal Judge D N Harris
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/38089/2013
THE IMMIGRATION ACTS
Heard at Field House
Decision & Reasons Promulgated
On 20th March 2015
On 9th April 2015
Before
DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS
Between
mr majid almekdady
(no ANONYMITY DIRECTION made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr B Buncock, Counsel
For the Respondent: Mr I Jarvis, Home Office Presenting Officer
DECISION AND REASONS
1. The Appellant is a citizen of the Netherlands born on 11th February 1961. On 7th May 2013 the Appellant's solicitors applied for a document certifying his permanent residence in the United Kingdom. Within that application the Appellant stated that he had been permanently incapacitated from 1st August 2007 up to and including the date of his application and provided documentation. On 4th September 2013 the Secretary of State refused the Appellant's application on the grounds that the Appellant did not meet Regulation 5(3) of the Immigration (European Economic Area) Regulations 2006 in that the Appellant had it was submitted failed to provide sufficient evidence to show that he had exercised treaty rights as a permanently incapacitated person. It was contended that the Appellant had not provided evidence that he had resided in the United Kingdom continuously for more than two years prior to the termination or that the incapacity is the result of an accident at work or an occupational disease that entitled him to a pension payable in full or in part by an institution in the United Kingdom. It was consequently decided to refuse the confirmation that the Appellant sought with reference to Regulations 15(1)(c) and 5(3) of the Immigration (EEA) Regulations 2006.
2. The Appellant appealed and the appeal came before Judge of the First-tier Tribunal Clapham at Taylor House on 5th November 2014. In a determination promulgated on 4th December 2014 the Appellant's appeal was allowed under the 2006 Regulations.
3. On 11th December 2014 the Secretary of State lodged Grounds of Appeal to the Upper Tribunal. The basis of those Grounds of Appeal were that the First-tier Tribunal Judge had failed to give adequate reasons for finding that the Appellant was unable to work due to his incapacity for the period September 2007 to May 2008. On 26th June 2014 First-tier Tribunal Judge Kelly granted permission to appeal. On 12th February 2015 a detailed Rule 24 response was served by the solicitors instructed by the Appellant.
4. It is on that basis that the appeal comes before me to determine whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. The Appellant appears by his instructed Counsel Mr Buncock. The Secretary of State appears by her Home Office Presenting Officer Mr Jarvis.
5. Mr Jarvis takes me to the medical report to be found in the Appellant's bundle and whilst contending that paragraph 12 of the First-tier Tribunal Judge's determination which assesses the medical report is not as specific as it could be having looked at the medical report he acknowledges that it shows more than the author of the Grounds of Appeal contend that it did and that he has to accept that the judge was entitled to consider the historical period and the history behind the Appellant's incapacity. On such basis Mr Jarvis indicates that, subject to the Tribunal being prepared to agree, he would wish to withdraw the Grounds of Appeal on behalf of the Secretary of State.
6. Having given this matter due consideration and pursuant to the Upper Tribunal Rules I grant permission to the Secretary of State to withdraw his appeal.
Notice of Decision
In such circumstances it is recorded that the appeal of the Secretary of State is withdrawn and the decision of the First-tier Tribunal do stand.
The First-tier Tribunal did not make an order pursuant to Rule 13 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. No application is made to vary that order and none is made.
Signed Date 23rd March 2015
Deputy Upper Tribunal Judge D N Harris
TO THE RESPONDENT
FEE AWARD
No fee is paid or payable and therefore there can be no fee award.
Signed Date 23rd March 2015
Deputy Upper Tribunal Judge D N Harris