OA/02064/2015

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The decision




Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/02064/2015


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 20 September 2016
On 4 October 2016




Before

DEPUTY UPPER TRIBUNAL JUDGE G A BLACK



Between

KHALIDA PARVEEN
(ANONYMITY DIRECTION NOT MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Miss Z Ahmad, Home Office Presenting Officer
For the Respondent: Mr P Richardson, Counsel, instructed by Lawmen Solicitors


DECISION AND REASONS


1. I shall refer to the parties as "the Secretary of State" who is the appellant in these proceedings, and to Mrs Khalida Parveen as "the Claimant". This is an appeal by the Secretary of State in respect of a Decision and Reasons by the First-tier Tribunal (Judge Kainth) heard at Richmond on 18 March 2016 and promulgated on 24th March 2016, in which the Claimant's appeal against a refusal of entry clearance was allowed outright under Regulations 7 and 12 Immigration (EEA Regulations) 2006.

2. In grounds of application for permission the Secretary of State argued that the FTT proceeded to determine the appeal by applying the wrong Regulation, namely Regulation 7 for family members. The applicable regulation was Regulation 8 for extended family members. (This error was in fact drawn to the attention of the FTT by Mr Richardson representing the appellant as is recorded in the decision and reasons [5].) Permission was granted on the grounds as argued.

3. At the proceedings before me it is agreed by both representatives that the FTT erred and that the Claimant should have been treated as an extended family member and would fall to be considered under Regulation 8(2). I find that there was a material error of law by the FTT accordingly. I find that the FTT further erred by allowing the appeal outright with reference to Regulation 12, for which the FTT has no jurisdiction. I set aside the decision and reasons save that the findings [12-17] as to dependency and family relationship [11] are preserved.

Re making the decision

4. There is no dispute as to the relationship between the Claimant and the sponsor. The FTT made clear findings as to past dependency and current dependency as between the Claimant and the EEA sponsor. Therefore on the facts as found by the FTT I am satisfied that Regulation 8(2) applies and the requirements are met.

5. The only difference in terms of the outcome is that the matter will have to be re considered by the Secretary of State under Regulation 12.

Notice of Decision

6. There is a material error of law and I set aside the FTT decision. I remake the decision and allow the Claimant's appeal under Regulation 8(2). The matter is to be reconsidered by the Secretary of State under Regulation 12.

No anonymity direction is made.


Signed Date 3.10.2016

GA Black
Deputy Upper Tribunal Judge G A Black




TO THE RESPONDENT
FEE AWARD

As I have allowed the appeal and because a fee has been paid or is payable, I have considered making a fee award and have decided to make no fee award consistent with the decision made by the FTT.


Signed Date 3.10.2016

GA Black
Deputy Upper Tribunal Judge G A Black