Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/50916/2013

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11 October 2016
On 18 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE A M BLACK

Between

N M
(ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Jegarajah, Counsel
For the Respondent: Mr Avery, Home Office Presenting Officer

DECISION AND REASONS
Anonymity order
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269), we make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original Appellant or his wife. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.
1. The appellant is a citizen of Sri Lanka who applied for a residence card in 2013 on the basis of her derivative right to a residence card, her child being a British citizen. Her application was refused and she appealed to the First-tier Tribunal. First tier Tribunal Judge Lal allowed her appeal in July 2014. That decision was set aside in the Upper Tribunal and the matter was remitted to the First-tier Tribunal for a fresh decision to be made. It came before First-tier Tribunal Judge Kimnell who dismissed the appeal in a decision promulgated on 14 January 2016.
2. Permission to appeal was granted by Upper Tribunal Judge Plimmer on 5 September 2016 in the following terms:
"If the appellant's husband is not an exempt person, then it is arguable that the First tier-Tribunal [sic] (FTT) failed to apply regulation 15A(7)(ii) of the EEA Regulations 2006 (as amended)."
3. Hence the matter comes before me.
Submissions
4. Ms Jegarajah, for the appellant, relied on her skeleton argument. She acknowledged that the reference in [8] of the FTTJ Kimnell's determination to the appellant's husband not being an exempt person was not correct: he was an exempt person. She argued, however, that this was not merely a typographical error by the FTTJ; it was an error of law. In any event, it cast doubt as to the reliability of the findings. The FTTJ should have made findings under regulation 15A(4A)(c), this being a Zambrano type situation. The FTTJ's failure to do so gave rise to another error of law. Ms Jegarajah relied on the unreported case of SSHD v Ms Yao Zhu, IA/32737/2013, promulgated on 17 November 2014, at [16] in which Mrs Justice Andrews found the FTT had made a material error of law in that case in failing to address the relevant test under Regulation 15A(4A)(c). There should have been express findings with regard to that limb of the regulations. Secondly, she submitted that the FTTJ's approach to the appeal had been wrong: he should first have considered whether the husband was exempt or not and whether the appellant was a primary carer at the date of hearing; this was irrespective of the appellant's statement in her application that they shared care: the issue was the situation at the date of hearing, not the date of application. The third limb was whether the "husband" would be "required to leave". The failure to follow this process, and to stop at the first stage, amounted to a material error of law. I was referred to the Home Office guidance cited in Ms Jegarajah's skeleton argument. Notwithstanding the decision of FTTJ Lal had been set aside, Ms Jegarajah submitted that that decision should be taken into account in this appeal.
5. Ms Jegarajah confirmed there was no challenge to the findings of fact of the FTTJ. She also confirmed there was no challenge to the findings with regard to the Article 8 claim. The appeal before me was limited to the FTTJ's findings under the EEA Regulations.
6. Mr Avery, for the respondent, submitted that it was clear from the context that the reference in [8] to the husband not being an exempt person was a typographical error. This was also clear from the facts of the case, the appellant's husband having been naturalised as a British citizen in 2011, prior to the date of application. He also referred to the summary of the reasons for refusal at [3] to the effect that the issue was whether the appellant was the primary carer of the British child. As Mr Avery put it, if the husband were not exempt, this would have been a "pointless exercise". The decision at [8] refers to the appellant's counsel indicating "she was under instructions not to concede the point"; there would have been no requirement to concede the issue if the husband were not an exempt person because the appellant would have qualified, in such circumstances, under regulation 15(7) on the basis that she had shared responsibility for her child with her husband. Mr Avery submitted that, barring the typographical error, the FTTJ had approached the issues and evidence properly. His findings were open to him on the evidence before him.
Discussion
7. Regulation 18A of the regulations (in so far as relevant to this appellant) states
"18A.- Issue of a derivative residence card
(1) The Secretary of State must issue a person with a derivative residence card on application and on production of-
(a) a valid identity card issued by an EEA State or a valid passport; and
(b) proof that the applicant has a derivative right of residence under regulation 15A."

8. Regulation 15A states, in so far as is relevant to this claimant:
"15A. Derivative right of residence
(1) A person ("P") who is not an exempt person and who satisfies the criteria in paragraph (2), (3), (4), (4A) or (5) of this regulation is entitled to a derivative right to reside in the United Kingdom for as long as P satisfies the relevant criteria.
???
(4A) P satisfies the criteria in this paragraph if-
(a) P is the primary carer of a British citizen ("the relevant British citizen");
(b) the relevant British citizen is residing in the United Kingdom; and
(c) the relevant British citizen would be unable to reside in the UK or in another EEA State if P were required to leave.
??
(7) P is to be regarded as a "primary carer" of another person if
(a) P is a direct relative or a legal guardian of that person; and
(b) P-
(i) is the person who has primary responsibility for that person's care; or
(ii) shares equally the responsibility for that person's care with one other person who is not an exempt person.
??.
(8) P will not be regarded as having responsibility for a person's care for the purpose of paragraph (7) on the sole basis of a financial contribution towards that person's care."
9. I take account of the three limbs of Ms Jegarajah's submissions but am unable to accept them for the following reasons.
10. I am wholly satisfied that the FTTJ made a typographical error at [8] in referring to the husband as not being an exempt person. It is clear from the evidence and the context of the FTTJ's statement at [8] that the husband was an exempt person both at the date of application and at the date of hearing: he was naturalised as a British citizen in 2011, prior to the application being made. Indeed Ms Jegarajah conceded as much in her oral submissions. I am unable to find that this is an error of fact such as to amount to a material error of law: it does not impact on the outcome of the appeal because the appellant could not have qualified under Regulation 15A(7)(b)(ii), her husband being an exempt person. Nor, for the reasons set out below, does the typographical error impact on the outcome of the appeal under Regulation 15A(4A).
11. For the avoidance of doubt, I do not accept the submission that the typographical error is an indicator of a lack of scrutiny of the evidence: the sole issue was whether the appellant fulfilled the criteria in Regulation 15A(4A) and the FTTJ considered appropriately whether that was the case: he addressed each of the issues in that Regulation, in turn.
12. There is no challenge by the appellant to the FTTJ's record of the evidence given at the hearing. The FTTJ records the evidence of relevance to the appellant's role as a carer [27]. He makes appropriate findings on the issue, particularly noting the evidence that, in her application form, the appellant identified herself as having "joint primary care" of the children. This was a situation which continued at the date of hearing. It is noteworthy that the appellant's counsel at the hearing focussed her argument "on Article 20 TFEU and Article 8 ECHR, because the children would be left in the United Kingdom without a carer if the appellant leaves the UK". That was a difficult submission given the evidence that the husband "will have to take care of his children and would so if his wife was not present in the UK" [22]. The FTTJ found, on the oral evidence of the husband, that the children would not leave the UK if the appellant were required to do so. That was a finding which was open to him. Thus the FTTJ addressed all the relevant issues in reaching his findings that the appellant shared responsibility with her husband for the care of the children and that neither the husband nor the children would leave the UK in the event of the appellant having to leave.
13. This appeal is no more than a disagreement with the findings of the FTTJ. It cannot succeed. There is no material error of law in the FTTJ's decision.
Decision
14. The making of the decision of the First-tier Tribunal did not involve the making of a material error on a point of law.
15. I do not set aside the decision.

Signed A M Black Date 17 October 2016
Deputy Upper Tribunal Judge A M Black