Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/45670/2014
IA/48887/2014

THE IMMIGRATION ACTS

Heard at Birmingham Employment Centre
Decision & Reasons Promulgated
On 9 August 2016
On 12 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE McCARTHY

Between

RK (1)
NUH (2)
(anonymity order made)
Appellants
and

SECRETARY OF STATE FOR the HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr I Hussain, Syeds Solicitors
For the Respondent: Mr D Mills, Senior Home Office Presenting Officer

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI2008/269) I make an Anonymity Order. Unless the Upper Tribunal or a Court orders otherwise, no report of any proceedings or any form of publication thereof shall directly or indirectly identify the original Appellant. This prohibition applies to, amongst others, all parties.

DECISION AND REASONS
1. The appellants are mother and daughter. Both are citizens of Pakistan. They originally had rights to reside in the UK as the family members of a qualified person under the provisions of the Immigration (European Economic Area) Regulations 2006. The first appellant's marriage to that qualified person was terminated on 20 June 2014 and the issue at large is whether the appellants retained rights of residence under regulation 10(5).
2. Despite the rule 24 response and the reasons for refusal letter, after discussing the issues with Mr Mills he conceded that First-tier Tribunal Judge Juss had erred in law in his decision and reasons statement promulgated on 19 August 2015. Judge Juss concluded at [23] that the appellants had been unable to show that the ex-husband of the first appellant had been a qualified person at the date the marriage was terminated.
3. Mr Mills conceded this issue on two bases. First, he recognised that the ex-husband must have acquired a permanent right of residence under reg 15(1)(c) because on his retirement in 2010 he was a worker who ceased activity. This meant there was no need for the appellants to prove he was a qualified person at the date of divorce. This led to the second part of the concession, that it would be pure speculation to think that the ex-husband may have left the UK at some time between 2010 and 2014 and thereby lost his permanent right of residence. The evidence of his residence during that period was patchy but there was nothing to suggest that he had left the UK permanently.
4. Mr Hussain accepted the concession and requested that the appeal be remitted to the First-tier Tribunal for findings to be made as to whether the appellants satisfied the requirements of regulation 10(5)(c), which of course alludes to reg 10(6). After discussion, I agreed to this request for the following reasons.
5. I was satisfied that it was for the appellants to show that they met the requirements of reg 10(6) at the date of hearing and not at the date of termination of the marriage. Mr Mills and Mr Hussain referred me back to article 13 of the Citizens Directions (2004/38/EC) and it was clear to us all that there was no requirement that the provisions of reg 10(6) had to be met at the date of termination of the marriage. To impose such a condition would be to introduce an additional criterion, which of course would be contrary to EEA free movement law.
6. Mr Hussain also requested time to obtain further evidence since the original appeal had been heard just over a year ago. Mr Mills did not object to such a course of action, particularly given that it was difficult to preserve the findings made by Judge Juss as he started from the wrong premise.
7. The appeal is therefore remitted to the First-tier Tribunal. None of the findings are preserved. However, the judge hearing the appeal will take note of the concession given by Mr Mills as recorded above.
8. Before concluding, I mention why an anonymity order is necessary. The second appellant is a child and it is appropriate to protect her integrity.

Decision
The decision and reasons of First-tier Tribunal Judge Juss is set aside.
The appeal is remitted to the First-tier Tribunal for a fresh hearing before a judge other than Judge Juss.
It will be for the First-tier Tribunal to decide on any directions.

Signed Date

Judge McCarthy
Deputy Judge of the Upper Tribunal