The decision

IA 04294 2013
IA 04293 2013

Upper Tribunal
(Immigration and Asylum Chamber)


Heard at Field House
Determination Promulgated
On 9 August 2013
On 13 August 2013









For the Appellant: Unrepresented
For the Respondent: Ms H Horsley, Home Office Presenting Officer.


1. The appellants are citizens of Romania. The second named appellant is the adoptive son (aged 12) of the first named appellant.

2. The appellants applied under the Immigration (European Economic Area) Regulations 2006 on the basis of their relationship to Robert Mircea Tiban, a Romanian national exercising Treaty Rights in the UK.

3. These applications were refused by the respondent on 17 January 2013. Among other points it was said Mr Tiban's birth certificate had not been produced.

4. The appellants appealed and their appeals came before a First-tier Judge on 16 May 2013.

5. The judge was not assisted by virtue of the fact that neither side appeared, a paper hearing having been requested, and there was no respondent's bundle and scant material from the appellants.

6. The judge issued two determinations, which may have added to the confusion, since in the son's appeal there is reference to a birth certificate being included whereas in the mother's appeal it is said Mr Tiban's birth certificate had not been produced.

7. Permission to appeal was granted on the birth certificate issue.

8. Happily before me the appellants and Mr Tiban appeared.

9. Mr Tiban said that documents sent to the Home Office had been misplaced.

10. From the Court Documents in the bundle it appears that the first named appellant Filofteia Cioboiu was married to Ioan Tiban in 1981, that Robert Mircea Tiban was born on 21 December 1982, and that following the divorce the appellant reverted to her maiden name Cioboiu. She was given responsibility for the upbringing of Robert and the other children. Alex was adopted on 26 July 2011. It is said that the child had been in her family since August 2001 and that it was in the best interests of the child to be adopted by the appellant.

11. Ms Horsley said the appeal of the mother could now be determined in the light of the fact that Mr Tiban's birth certificate had been produced. Ms Horsley did not contest the validity of the document and was content that I allow the appeal under the Immigration (European Economic Area) Regulations 2006.

12. The position in relation to Alex was somewhat more complex. She did not have the file or indeed much paperwork. She considered that there would need to be evidence of some dependency in Romania (or membership of the household of the EEA national) although she acknowledged that it would be difficult to envisage a 12 year old being returned on his own.

13. Having carefully considered matters with her and the family Ms Horsley accepted that in the particular circumstances of this case the appropriate course, having allowed the appeal of Alex's mother, the first named appellant, was to allow Alex's appeal to the extent of remitting his case to be re-assessed by the Secretary of State in the light of the changed circumstances.

14. This does appear to me to be the appropriate course. The appeal papers are too scant to do justice to a child's appeal and the Home Office has to bear some responsibility for not furnishing the First-tier Tribunal or the Upper Tribunal with a bundle of material. I am not able to comment on Mr Tiban's assertion that material has been misplaced by the Home Office. Ms Horsley did not cast doubt on such documentation as had been put forward. There is of course a need to have full regard to Alex's best interests in important issues such as pertain here.

Accordingly and by agreement:

The First-tier Judge made a material error of law and I re-make the decision.

1. The appeal of the first named appellant is allowed under the Immigration (European Economic Area) Regulations 2006.

2. The appeal of the second named appellant is allowed to the extent of remitting it to the respondent for further consideration.


Upper Tribunal Judge Warr

9 August 2013