Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/40868/2013

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 3 July 2014
On 17 October 2014

Before

THE HONOURABLE MR JUSTICE HADDON-CAVE
UPPER TRIBUNAL JUDGE KOPIECZEK

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

KAMILA SANTOS CAMPELO CAIN
Respondent

Representation:

For the Appellant: Mr J. Doerfel and Mr J. Chipperfield, Counsel
For the Respondent: Mr C. Avery, Home Office Presenting Officer

DETERMINATION AND REASONS

Introduction
1. The appellant in these proceedings is the Secretary of State. It is convenient however, to refer to the parties as they were before the First-tier Tribunal.
2. At the heart of this appeal lies the issue of whether an unmarried partner is entitled to the benefit of the decision in Surinder Singh [1992] EUECJ C-370/90 which concerns British citizens returning to the UK after having exercised Treaty rights in another EEA State, and the extent to which a third country national family member of such a British citizen is entitled to reside in the UK under European Community law.
3. The appellant is a citizen of Brazil, born on 23 August 1978. On 6 June 2013 she made an application for a residence card as the family member of an EEA national, who in this case is a British citizen. That application was refused in a decision dated 18 September 2013.
4. Her appeal against that decision was allowed by First-tier Tribunal Judge Powell after a hearing on 23 April 2014. He concluded that regulation 9(2) of the Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations"), in limiting its application to married persons or civil partners, is contrary to Directive 2003/38 ("the Directive").
5. Permission to appeal against his decision having been granted, the appeal came before us.
Submissions
6. We summarise the submissions of the parties before us. On behalf of the respondent Mr Avery submitted that even if the judge was correct to find that the decision in Surinder Singh benefited the appellant, he ought to have gone on to consider how this would affect the application of other aspects of the EEA Regulations.
7. It was further submitted that the Directive, in Article 3(2), refers to 'facilitating' entry and residence. In addition, relationships other than that of spouses are not comparable and do not benefit from the same level of 'protection' as spouses.
8. In terms of the European Casework Instructions ("ECI's") to which the judge referred at [19] of his determination, it was suggested that they are rather loosely worded and do not in fact represent an intention on the part of the Secretary of State to extend the Surinder Singh principle beyond what is within regulation 9 of the EEA Regulations. We were referred to other aspects of the ECI's which were relied on as making good that proposition.
9. Mr Doerfel for the Appellant relied on his skeleton argument. He submitted that the First-tier judge did not allow the appeal under the EEA Regulations, having found at [17] that the EEA Regulations did not apply to the appellant. Surinder Singh does not deal with which family members benefit. However, the ratio of the decision is that, if one is a British national exercising Treaty rights, then on return to the UK you would be treated exactly the same as any other European national exercising Treaty rights.
10. In this appeal, the judge had applied the Directive directly. He found that the appellant's partner was exercising Treaty rights in Portugal and Spain. It is clear from [6] of the determination that none of the facts were contested, and at [15] and [20] he found that the appellant and her partner were in a durable relationship. He concluded that the EEA Regulations denied them rights under EC law.
11. Mr Doerful submitted that the EEA Regulations discriminated between other EU nationals and British nationals, in terms of those who are able to bring to the UK those with whom they are in a durable relationship. Regulation 9 operated as a complete bar to someone in the appellant's situation.
12. Mr Chipperfield on behalf of the appellant referred to other aspects of the skeleton argument and the authorities cited in it, in terms of applying the Directive.
Our analysis
13. After hearing submissions from the parties, we referred them to the decision of the Upper Tribunal in Ihemedu (OFMs - meaning) Nigeria [2011] UKUT 00340(IAC), in relation to the discretion within regulation 17(4) to issue a residence card to an extended family member. Because neither party was in a position to make submissions in relation to that issue with reference to that decision, we allowed a period of 7 days for further submissions to be made. It was made clear that the further submissions were to be confined to this issue.
14. The appellant's further written submissions provided after the hearing plainly misunderstand the basis upon which we allowed further written submissions to be made. In so far as those submissions go further than the limited basis upon which we consented to the making of further submissions, we do not take them into account. Purely in relation to the issue of the exercise of the Secretary of State's discretion, we consider below the further written submissions that were put before us after the hearing.
15. At the outset, we are able to dispose of the contention in the respondent's grounds that the First-tier judge allowed the appeal with reference to the EEA Regulations. In our view, he manifestly did not, as is evident from [17] of the determination. There he stated that regulation 9(2) does not apply to an unmarried partner and that the Secretary of State was therefore correct to conclude that the appellant does not meet the requirements of regulation 9(2).
16. The uncontested facts are as follows:
The appellant and her partner, Adrian Hamling, are in a durable relationship.
They have been living together since 30 June 2008.
They have three children; a son born on 1 March 2009, a daughter born on 23 November 2010 and another son born on 13 May 2012.
The appellant's partner has exercised Treaty rights in Spain from January 2010 until September 2011 and for four months in Portugal until January 2012.
The appellant and her partner lived together in Spain and Portugal.
In January 2012, the appellant, her partner and their children returned to the UK.
17. We set out below the relevant provisions of the EEA Regulations, starting with regulation 9 which is that which most directly concerns this appeal. The appellant's skeleton argument quotes a version of regulation 9 prior to its amendment in December 2012, but the difference is immaterial. With effect from January 2014, there was further amendment to regulation 9. Again, however, the amendment is immaterial for the purposes of this appeal. As applicable at the date of the decision, regulation 9 provided as follows:

"Family members of British citizens
9.-(1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who is the family member of a British citizen as if the United Kingdom national were an EEA national.
(2) The conditions are that-
(a) the British citizen is residing in an EEA State as a worker or self-employed person or was so residing before returning to the United Kingdom; and
(b) if the family member of the United Kingdom national is his spouse or civil partner, the parties are living together in the EEA State or had entered into the marriage or civil partnership and were living together in that State before the United Kingdom national returned to the United Kingdom.
(3) Where these Regulations apply to the family member of a British citizen the British citizen shall be treated as holding a valid passport issued by an EEA State for the purpose of the application of regulation 13 to that family member."
18. Regulation 2 states that "EEA national" means a national of an EEA State who is not also a British national. Thus, regulation 9 makes provision for a British national to be treated as an EEA national for the purposes of the EEA Regulations in the circumstances described in regulation 9.
19. Regulation 8 provides as follows:

"Extended family member"

8.-(1) In these Regulations "extended family member" means a person who is not a family member of an EEA national under regulation 7(1)(a), (b) or (c) and who satisfies the conditions in paragraph (2), (3), (4) or (5).
(2) A person satisfies the condition in this paragraph if the person is a relative of an EEA national, his spouse or his civil partner and-
(a) the person is residing in an a country other than the United Kingdom and is dependent upon the EEA national or is a member of his household;
(b) the person satisfied the condition in paragraph (a) and is accompanying the EEA national to the United Kingdom or wishes to join him there; or
(c) the person satisfied the condition in paragraph (a), has joined the EEA national in the United Kingdom and continues to be dependent upon him or to be a member of his household.
(3) A person satisfies the condition in this paragraph if the person is a relative of an EEA national or his spouse or his civil partner and, on serious health grounds, strictly requires the personal care of the EEA national his spouse or his civil partner.
(4) A person satisfies the condition in this paragraph if the person is a relative of an EEA national and would meet the requirements in the immigration rules (other than those relating to entry clearance) for indefinite leave to enter or remain in the United Kingdom as a dependent relative of the EEA national were the EEA national a person present and settled in the United Kingdom.
(5) A person satisfies the condition in this paragraph if the person is the partner of an EEA national (other than a civil partner) and can prove to the decision maker that he is in a durable relationship with the EEA national.
(6) In these Regulations "relevant EEA national" means, in relation to an extended family member, the EEA national who is or whose spouse or civil partner is the relative of the extended family member for the purpose of paragraph (2), (3) or (4) or the EEA national who is the partner of the extended family member for the purpose of paragraph (5).
20. It is regulation 8(5) which is relevant for the purposes of this appeal. It is to be remembered that on the facts of this appeal it is undisputed that the appellant is the partner of Adrian Hamling and that they are in a durable relationship. Were the appellant's partner an EEA national, the appellant would be an "extended family member" because she and her partner are in a durable relationship. Similarly, we consider that the appellant is to be regarded as an extended family member by virtue of regulation 9(1).
21. However, according to the terms of regulation 9, the appellant is not entitled to the benefit of it in relation to her British citizen partner's return to the UK, whereby under regulation 9 he would, in the circumstances described in that regulation, be treated as an EEA national. If regulation 9 did apply, it would allow for the grant to the appellant of a residence permit in accordance with regulation 17, which, so far as material, provides as follows:
"17.- Issue of residence card
?

(4) The Secretary of State may issue a residence card to an extended family member not falling within regulation 7(3) who is not an EEA national on application if-

(a) the relevant EEA national in relation to the extended family member is a qualified
person or an EEA national with a permanent right of residence under regulation 15; and

(b) in all the circumstances it appears to the Secretary of State appropriate to issue the
residence card.

(5) Where the Secretary of State receives an application under paragraph (4) he shall undertake an extensive examination of the personal circumstances of the applicant and if he refuses the application shall give reasons justifying the refusal unless this is contrary to the interests of national security.
?"
22. The contention on behalf of the appellant is that although regulation 9 does not itself make provision for a partner who is an extended family member, the appellant should nevertheless be entitled to the benefit if the decision in Surinder Singh. That case concerned an Indian national who was married to a British national. The couple were employed in Germany before returning to the UK where they intended to open a business. The question that the European Court of Justice ("ECJ") was asked to decide was whether the spouse of the British national was entitled under Community law to reside in the UK on the basis that the British national had exercised Treaty rights before returning to the UK.
23. Basing its reasoning on principles of freedom of movement, the ECJ held that:
"19 A national of a Member State might be deterred from leaving his country of origin in order to pursue an activity as an employed or self-employed person as envisaged by the Treaty in the territory of another Member State if, on returning to the Member State of which he is a national in order to pursue an activity there as an employed or self-employed person, the conditions of his entry and residence were not at least equivalent to those which he would enjoy under the Treaty or secondary law in the territory of another Member State.

20 He would in particular be deterred from so doing if his spouse and children were not also permitted to enter and reside in the territory of his Member State of origin under conditions at least equivalent to those granted them by Community law in the territory of another Member State.

21 It follows that a national of a Member State who has gone to another Member State in order to work there as an employed person pursuant to Article 48 of the Treaty and returns to establish himself in order to pursue an activity as a self-employed person in the territory of the Member State of which he is a national has the right, under Article 52 of the Treaty, to be accompanied in the territory of the latter State by his spouse, a national of a non-member country, under the same conditions as are laid down by Regulation No 1612/68, Directive 68/360 or Directive 73/148, cited above.

22 Admittedly, as the United Kingdom submits, a national of a Member State enters and resides in the territory of that State by virtue of the rights attendant upon his nationality and not by virtue of those conferred on him by Community law. In particular, as is provided, moreover, by Article 3 of the Fourth Protocol to the European Convention on Human Rights, a State may not expel one of its own nationals or deny him entry to its territory.

23 However, this case is concerned not with a right under national law but with the rights of movement and establishment granted to a Community national by Articles 48 and 52 of the Treaty. These rights cannot be fully effective if such a person may be deterred from exercising them by obstacles raised in his or her country of origin to the entry and residence of his or her spouse. Accordingly, when a Community national who has availed himself or herself of those rights returns to his or her country of origin, his or her spouse must enjoy at least the same rights of entry and residence as would be granted to him or her under Community law if his or her spouse chose to enter and reside in another Member State. Nevertheless, Articles 48 and 52 of the Treaty do not prevent Member States from applying to foreign spouses of their own nationals rules on entry and residence more favourable than those provided for by Community law.

?

25 The answer to the question referred for a preliminary ruling must therefore be that Article 52 of the Treaty and Directive 73/148, properly construed, require a Member State to grant leave to enter and reside in its territory to the spouse, of whatever nationality, of a national of that State who has gone, with that spouse, to another Member State in order to work there as an employed person as envisaged by Article 48 of the Treaty and returns to establish himself or herself as envisaged by Article 52 of the Treaty in the territory of the State of which he or she is a national. The spouse must enjoy at least the same rights as would be granted to him or her under Community law if his or her spouse entered and resided in the territory of another Member State."
24. Reliance is also placed by the Appellant on a subsequent decision of the ECJ: Eind [2007] EUECJ C-291/05. That case concerned a national of the Netherlands who came to the UK and became employed. Later he was joined by his daughter who was a national of Surinam. The UK authorities accepted that both had a right to reside in the UK under Community law. However, on return to the Netherlands the authorities there refused Miss Eind a residence permit.
25. The further detailed facts of that decision are not, for the purposes of the appeal before us, of great significance. What is of significance however, is what the Court said in the following paragraphs, as follows:
35. A national of a Member State could be deterred from leaving that Member State in order to pursue gainful employment in the territory of another Member State if he does not have the certainty of being able to return to his Member State of origin, irrespective of whether he is going to engage in economic activity in the latter State.
36. That deterrent effect would also derive simply from the prospect, for that same national, of not being able, on returning to his Member State of origin, to continue living together with close relatives, a way of life which may have come into being in the host Member State as a result of marriage or family reunification.
37. Barriers to family reunification are therefore liable to undermine the right to free movement which the nationals of the Member States have under Community law, as the right of a Community worker to return to the Member State of which he is a national cannot be considered to be a purely internal matter.
?
40. Thus, a person in the situation of Miss Eind may enjoy that right so long as she has not reached the age of 21 years or remains a dependant of her father.
26. Neither party referred us to the following cases, decided at the same time, namely S and G-Case C-457/12, and O and B Case C-456/12. Both cases concerned third-country family members of Netherlands nationals who had either moved to other Member States and then returned or who spent time travelling from the Netherlands to other member states for work.
27. The Netherlands nationals in O and B had in the past resided in another Member State; the Netherlands nationals in S and G had always resided in the Netherlands, but were regularly travelling to another Member State for work purposes. The question arose as to whether their family members could derive a right of residence in the Netherlands from Directive 2004/38 and Article 21(1) of the Treaty on the Functioning of the European Union. In the case of O and B, they were both married to nationals of the Netherlands. In S and G, S was the mother-in-law of a Netherlands national and G was a spouse of a national of the Netherlands.
28. In both of the above cases, the ECJ referred to the decisions in Surinder Singh and Eind and came to conclusions that are broadly in line with them.
29. However, neither O and B nor S and G are directly on point in terms of the appeal with which we are concerned in that none involved unmarried partners. Surinder Singh concerned the spouse of an EEA national. Eind concerned the daughter of an EEA national.
30. In all the cases to which we have referred, and which applied the Surinder Singh principle, the person claiming a right of residence was a "family member" as described in Directive 2004/38/EC ("the Directive"), under Article 2 which states as follows:

"Article 2

Definitions

For the purposes of this Directive:
1. 'Union citizen' means any person having the nationality of a Member State;

2. 'family member' means:

(a) the spouse;

(b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State;

(c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b);

(d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b);

3. 'host Member State' means the Member State to which a Union citizen moves in order to exercise his/her right of free movement and residence."
31. It can be seen that there is no mention of durable partners within the definition of family member. The expression 'durable partner' is to be found in Article 3. It states as follows:

"Article 3

Beneficiaries

1. This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.

2. Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:

(a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;

(b) the partner with whom the Union citizen has a durable relationship, duly attested.
The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people. "
32. However, notwithstanding that Surinder Singh and the other cases we have referred to which concern family members as defined in the Directive, we cannot see that there is any distinction in principle between those cases and the case of the appellant before us. In our judgment, the exercise of the right of free movement by an EEA national is as likely to be adversely affected by the inability of a durable partner to reside with the EEA national in the host State, as it would be were his or her spouse to be denied residence status.
33. Although Mr Avery sought to emphasise that Article 3.2 refers to the requirement of the host member state to "facilitate" entry and residence for persons who are "other family members", including durable partners, we do not see that that expression undermines this appellant's case. The refusal to grant confirmation of the appellant's residence status by the issuing of a residence card does the opposite of facilitating her residence in the UK as a durable partner.
34. That is not to say that there is no difference in principle between the treatment of "family members" as defined in the Directive and "other family members", whereby entry and residence is subject to a discretion, as is evident from the wording of Article 3.2. We deal with that issue below in terms of the appropriate outcome of this appeal.
35. On the other hand, we do not consider that there is any merit in the contention that the Respondent failed to follow, or apply, what is said to be a policy contained within the ECI's. That part of the ECI's relied on on behalf of the appellant states as follows:

"5.5. Non-EEA family members of British Citizens (Surinder Singh ruling)

A third country national who is the spouse / civil partner / partner or other family member of a British citizen can be availed by European law if they have resided with the British citizen in another Member state, and the British citizen was either employed or self-employed in the other Member state, prior to travelling to the U.K.
In these circumstances the third country nationals are treated as if the British citizen were an EEA national and therefore will be entitled to an EEA family permit."
36. We accept Mr Avery's submission that the ECI's in this respect do not represent an intention on the part of the Secretary of State to extend the Surinder Singh principle beyond what is within regulation 9 of the EEA Regulations. It is evident from other sections of the ECI's that the 'principle' in Surinder Singh is, in the Respondent's mind at least, confined to spouses. This is clear from, for example, what appears in the very next part of 5.5. That states that:
"In such circumstances the third country national has the option to enter the U.K. either under the Immigration Rules or as the spouse of an EEA national, if the British citizen is also returning to the U.K." (emphasis as in original)
37. We do not need to quote other paragraphs of the ECI's which follow on from the ones we have quoted. Suffice to say that those other paragraphs do not indicate that the Secretary of State considers that the benefit of the Surinder Singh principle should be conferred on anyone other than a spouse or civil partner. There is no policy on the part of the Secretary of State as contended for on behalf of the appellant.
38. That is all aside from whether there is an arguable basis for suggesting that the ECI's do represent any form of policy which the Secretary of State is required to follow.
39. Having said that, in the light of our earlier analysis, we do consider that the Surinder Singh principle does extend to persons such as the appellant who are in durable relationship, albeit that the ECI's are no guide to that conclusion.
40. We consider that Judge Powell was correct to conclude that the appellant is entitled to the benefit of the Surinder Singh principle, although wrong to base his conclusion in part on the ECI's. Similarly, we conclude that that he erred in law in seeming to allow the appeal outright, for reasons which we now come to.
41. Having concluded that the appellant is entitled to the benefit of the principle in Surinder Singh, we must next consider what the effect of that conclusion is.
42. In Ihemedu it was pointed out that regulation 17(4) makes the issuing of a residence card to an extended family member a matter of discretion. It was decided that where the Secretary of State has not yet exercised that discretion the most the Tribunal is entitled to do is to allow the appeal as being not in accordance with the law, leaving to the Secretary of State the matter of whether or not to exercise this discretion in the appellant's favour.
43. In the appellant's further written submissions received post hearing, it is contended, essentially, that the decision in Ihemedu does not apply to the circumstances of this appeal because it only applies if it is first established that the appellant is an extended family member as defined in regulation 8 of the EEA Regulations. At [20] of the further submissions it is asserted that it has been the Respondent's position and that of the appellant that the appellant does not fall within regulation 8, given that the sponsor is a UK national exercising Treaty rights, hence regulation 17(4) does not arise.
44. However, we note that the appellant's original skeleton argument itself contends that the appellant is in a 'durable relationship' and early on quotes regulation 8 (in relation to extended family members).
45. Further, the submission to the effect that Ihemedu does not apply fails to take into account the terms of regulation 9, which we have set out above and which we repeat, viz:

"9.-(1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who is the family member of a British citizen as if the United Kingdom national were an EEA national."
46. The sponsor is a UK national exercising Treaty rights, but he is for those purposes treated as if he were an EEA national. It follows that the appellant is to be regarded as the extended family member of an EEA national.
47. In addition, contrary to what is said in the further submissions at [22], we do not agree that, in so far as First-tier judge Powell purported to allow the appeal under the Directive, he was correct to do so. There is no provision in the Directive which is equivalent to the Surinder Singh principle, that principle being founded upon Community law in general.
48. We cannot see that there is any basis for the contention in the further written submissions that the Secretary of State has in some way already exercised the discretion inherent in regulation 17, not least because the Secretary of State has never accepted that the appellant is an extended family member. Contrary to the written submissions, we do not see in the determination of First-tier judge Powell an agreement to the effect that, if the appellant succeeded in her argument in terms of the application of the Surinder Singh principle, she would be granted a residence card outright, without the further enquiry required by regulation 17(5). Indeed, there is no mention of regulation 17 in the determination, no reference to any discretion, and the decision in Ihemedu is not cited.
49. The reliance on unreported decisions of the Upper Tribunal in the further written submissions is of no assistance at all and the other reported cases cited do not bear directly on the discretion contained within regulation 17, and in relation to which Ihemedu is clear. We simply do not accept that it is for us to exercise the discretion that is plainly within the province of the Secretary of State under regulation 17.
50. So far as the appellant relies on the decision in Case C-34/09 Ruiz Zambrano, we do not consider that such reliance can achieve the result of the appellant's appeal being allowed outright, which is what is in effect contended. Zambrano decided that:
"Article 20 TFEU is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen." (our emphasis)
51. The removal of the appellant would not have the effect described in the words in italics. The appellant's children are British citizens, and the children in Zambrano were Belgian nationals. However, the difference between that case and the one of this appellant is that the parents in Zambrano were not Belgian citizens but Colombian citizens. Their removal would have, effectively, meant the removal of the children, thus depriving them of the enjoyment of their rights as Belgian citizens. In the appeal before us, the children's father is a British citizen, and thus there is no question of him, or them, being removed.
52. More widely in terms of Article 8, we do not accept that Article 8 is engaged in the circumstances of this appeal. In the first place, the refusal letter expressly states that "a decision not to issue a residence card/permanent residence card does not require you to leave the United Kingdom if you can otherwise demonstrate that you have a right to reside under the Regulations". In other words, in this case, there would be no "removal of the appellant from the United Kingdom in consequence of the immigration decision" that would breach her Article 8 rights (see the permissible grounds of appeal as set out in section 84 of the Nationality, Immigration and Asylum Act 2002, specifically s.84(1)(g)).
53. Secondly, as the refusal letter also points out, it is now a requirement of the immigration rules that an application for leave to remain on Article 8 grounds must be made (see Appendix FM), and no such initial application has been made in the case of this appellant.
54. Drawing all these threads together, we are satisfied that First-tier Tribunal Judge Powell was correct to conclude that the Surinder Singh principle applies to this appellant, albeit not for precisely the reasons that he gave. The principle does not derive from the Directive which has no equivalent provision, but from Community law. We are nevertheless satisfied that regulation 9 is inconsistent with the principle in Surinder Singh in its application to this appellant as a durable partner, being an extended family member.
55. We are however, satisfied that Judge Powell erred in law in purporting to allow the appeal outright. Accordingly, we set the decision aside, and re-make it. The appropriate course was and is, for the appeal to be allowed as being not in accordance with the law on the basis that it remains for the Secretary of State to exercise her discretion in relation to whether or not to issue the appellant with a residence card, as an extended family member.
Decision
56. The decision of the First-tier Tribunal involved the making of an error on a point of law. The decision of the First-tier Tribunal is set aside and the decision re-made allowing the appeal to the limited extent that the decision of the Respondent is not in accordance with the law, and for the Respondent to consider in the exercise of her discretion whether to issue a residence card to the appellant.

Upper Tribunal Judge Kopieczek
13/10/14