Tribunal decisions

The decision

St

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/50597/2014

THE IMMIGRATION ACTS

At Field House
on 23rd December 2016
Decision and Reasons Promulgated
on 20th January 2017

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL FARRELLY

Between

TIMUR [L]
(ANONYMITY DIRECTION NOT MADE)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Shilliday, Counsel instructed by Sterling and Law Associates.
For the Respondent: Mr Walker, Home Office Presenting Officer.

DECISION AND REASONS
Introduction

1. The appellant is a child, having been born on 6 August 2011.

2. Application was made on his behalf for a residence card as confirmation of his right to reside in the United Kingdom as a family member of an EU national exercising Treaty rights. The application was on the basis his mother, Mrs Nataliya Lazaryeva, a third country national, is married to Mr Lukas Kasik, a national of the Czech Republic who is exercising Treaty rights.

3. The application was refused on the basis that the proofs provided did not established that Mr Kasik was his father as required by regulation 17 (1)(b) of the Immigration (European Economic Area) regulations 2006 (hereinafter referred to as `the 2006 regulations'). The birth certificate supplied did not contain his father's details. With the application was a marriage certificate showing his mother married Mr Kasik on 4 July 2008.

4. His appeal was heard by Judge of the First-tier Raymond on the papers. The appeal was dismissed. The judge referred to his mother's passport which indicated she had been issued with a residence card valid from 10 August 2010 to 10 August 2015. Her marriage certificate was before the judge. At paragraph 13 the judge concluded that there was no evidence to show the appellant was the son of Mr Kasik who was exercising Treaty rights. The judge referred to an evidential void relating to Mr Kasik and questioned the ongoing entitlement of the appellant's mother to her residence card.

5. Permission to appeal was granted by Upper Tribunal Judge Plimmer on the basis First Tier Judge Raymond may have erred in law in the application of regulation 7(1)(b) of the 2006 regulations. It was arguable there was sufficient evidence to demonstrate the appellant was a direct descendant of an EEA national spouse as his birth certificate identified his mother and her marriage certificate showed she was married to a Czech national.

Consideration

6. Regulation 7 of the 2006 regulations defines family members. Regulation 7(1)(b) refers to the `direct descendant of his, his spouse ?'

7. At hearing, Mr Shilliday for the appellant submitted that the respondent had not challenged the evidence that his birth certificate identified his mother and her marriage certificate identified her husband.

8. Mr Walker on behalf of the respondent accepted there was a material error of law in the decision. He accepted the certificates established that the appellant was a child of Mrs Nataliya Lazaryeva and she was married to Mr Kasik, a Czech national. It followed from the evidence relating to his mother that he was a family member within the meaning of regulation 7 (1) (b). Mr Walker confirms that no issue was being taken as to whether his father was a qualified person. Mr Shilliday confirmed that the appellant's parents had not divorced.

9. In light of the above I found a material error of law in the decision of First Tier Judge Raymond. It would appear that the judge overlooked the fact that regulation 7(1) (b) is not confined to the direct descendants of the European national but also to their spouse. The judge may have been misled by the approach in the refusal letter; the point is not raised in the grounds of appeal and the judge did not have the benefit of oral submissions. However, the law has been incorrectly applied and I remake the decision on the basis of the agreed facts. The appellant is entitled to the residence documentation sought and I allow the appeal.

Decision.

The decision of First-tier Tribunal Judge Raymond contains a material error of law and is set aside. The decision is remade allowing the appeal

Deputy Upper Tribunal Judge Farrelly.

Fee Order

Mr Shilliday advised that a fee had been paid and sought a fee order on the basis the appeal has now succeeded on the information which was before the original decision maker. I reserved on this issue because I wanted to check a decision I had a recollection of in relation to fee orders in the Upper Tribunal. Both parties were in agreement with me deciding this issue without further submissions though I invited Mr Shilliday to address me on the matter later in the day if he had any further information.

It seems I was thinking of Singh v The Secretary of State for the Home Department [2014] EWCA Civ 438 The Upper Tribunal does not have jurisdiction to consider a challenge to a decision of a First-tier Tribunal Judge to make, or not to make, a fee award. A decision on a fee award is an ancillary decision within the meaning of the Appeals (Excluded decisions) Order 2009 and is therefore not appealable. However this is dealing with a purported appeal in relation to the fee order. In the present circumstances having dealt with the substantive matter I have jurisdiction in relation to the fee order also. On the basis the original decision maker had all the necessary evidence to have made a favourable decision which I have now made I would also make a full fee order in favour of the appellant.

Deputy Upper Tribunal Judge Farrelly.