Tribunal decisions

The decision

The Upper Tribunal
(Immigration and Asylum Chamber) Appeal number: IA/45156/2013

THE IMMIGRATION ACTS

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

Before

DEPUTY UPPER TRIBUNAL JUDGE ALIS

Between

mr rafik goudjil
(NO ANONYMITY DIRECTION MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss Rothwell, Counsel, instructed by BMAP
For the Respondent: Mr Walker (Home Office Presenting Officer)

DETERMINATION AND REASONS

1. The appellant, born January 5, 1972, is a citizen of Algeria. The appellant entered the United Kingdom in 2001 and in December 2003 he moved into a house with his future wife. They married on January 27, 2004 but divorced on November 5, 2012. He applied on March 25, 2013 for a permanent right of residence under Regulation 15 of the Immigration (EEA) Regulations 2006 but this application was refused by the respondent on October 17, 2013 as she was not satisfied the appellant had "retained rights" under Regulation 10 of the 2006 Regulations.

2. The appellant 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 October 30, 2013 and on July 24, 2014 Judge of the First Tier Tribunal Carroll (hereinafter referred to as the "FtTJ") heard his appeal and in determination promulgated on August 13, 2014 she refused his appeal on the basis he had failed to satisfy the requirements of Regulation 10(6) of the 2006 Regulations.

3. The appellant lodged grounds of appeal on August 22, 2014 and on November 19, 2014 Judge of the First-tier Tribunal MacDonald gave permission to appeal finding there were arguable grounds that the FtTJ had erred in her approach by failing to consider the appeal under Regulation 15 of the 2006 Regulations.

4. The respondent filed a Rule 24 response on November 26, 2014. She accepted that if Regulation 15 had been raised before the FtTJ then there was a material error.

5. The matter came before me on the above date and on that date the appellant was in attendance and was represented.

ERROR OF LAW SUBMISSIONS

6. Miss Rothwell submitted the FtTJ erred by failing to consider the appeal under Regulation 15 despite the issue being raised in both the grounds of appeal and the skeleton argument. She submitted that it was clear from the case of Idezuna (EEA-permanent residence) Nigeria [2011] UKUT 00474 that the appellant merely had to show:

a. Both the EEA national and the appellant had resided in the United Kingdom for a continuous period of five years.
b. The EEA national had worked continuously for five years during the period of the marriage.

She submitted that there was evidence that the EEA national had worked between 2007 and 2012 as well as 2004 to 2005 and 2006 to 2007. The FtTJ materially erred and the appeal should be allowed.

7. Mr Walker did not dispute these submissions. He accepted that the appellant had lived here with his wife since January 2004 and they were divorced in November 2012. Whilst they separated in 2008 they both continued to live here and the EEA national had demonstrated an entitlement to permanent residence. He accepted the appellant was also entitled to permanent residence as he satisfied Regulation 15(1)(b) of the 2006 Regulations. Upper Tribunal Judge Storey made clear in paragraph [2] of Idezuna that the parties did not need to demonstrate cohabitation merely that they were both present in the United Kingdom.

ERROR OF LAW ASSESSMENT

8. In light of the concessions made by Mr Walker I find there has been an error in law. The FtTJ should have considered the appeal having regard to Regulation 15 as well as Regulation 10. Her failure to do so was an error. This error was material because the respondent accepted the Regulation was satisfied as both the appellant and his ex-wife had resided in the United Kingdom since 2004 and there was evidence of five years continuous work by the ex-wife during the period prior to their divorce.

9. I therefore allow the appeal and direct that the appellant be issued with a permanent right of residence.

Decision

10. The decision of the First-tier Tribunal disclosed an error. I set aside the original decision and allow the appeal under Regulation 15 of the 2006 Regulations.

11. 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 make a fee award as the Regulations were met when the application was submitted.

Signed: Dated: December 29, 2014

Deputy Upper Tribunal Judge Alis