United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

IAC-FH-CK-V2

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Numbers: IA/44871/2014

IA/44874/2014

IA/44879/2014

 

 

THE IMMIGRATION ACTS

 

 

Heard at Field House	Decision & Reasons Promulgated
On 6 th January, 2016	On 26 th January, 2016
Given extempore

 

Before

 

Upper Tribunal Judge Chalkley

 

 

Between

 

Mrs Priyanga Iroshi Pelawatta

Mr Deepthi Pathirana Manadi Pathirannehelage

G P

(ANONYMITY DIRECTION not made)

Appellants

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

 

Representation :

For the Appellants: Mr S Pinder, Counsel instructed by Theva Solicitors

For the Respondent: Mr E Tufan, Home Office Presenting Officer

 

 

DECISION AND REASONS

1. The three appellants are all citizens of Sri Lanka and their respective dates of birth are 2 ^nd July, 1978, 29 ^th January, 1972 and 3 ^rd February, 2004. They have lived in the United Kingdom for some five and a half years.

2. On 4 ^th July, 2014 the first appellant made an application on her own behalf and also in respect of her daughter and husband for the issue of a residence card on the basis that they were the extended family members of the first appellant's cousin, Mrs Priyaharsani Jansen, who is a German national born on 8 ^th June, 1957. It was not in dispute that Mrs Jansen, to whom I shall make reference as the sponsor, is a worker and an EEA national exercising treaty rights.

3. On 22 ^nd October the respondent refused to issue a residence card because it was not accepted that the appellants and sponsor were related as claimed, nor was any evidence of dependency disclosed. The appellants appealed the decision and their appeal was heard at Richmond Magistrates' Court on 2 ^nd July, 2015.

4. The judge noted the Tribunal's decision in Dauhoo (EEA Regulations - reg 8(2)) [2012] UKUT 79 and said in paragraph 16 of the determination that in these appeals it has never been suggested that the sponsor, and the appellants enjoyed prior membership of the same household before coming to the United Kingdom. In fact that is wrong. The judge fails to record even a synopsis of the evidence he heard, but it is clear from his Record of Proceedings that the appellant adopted her statement in paragraph 3 of which, she points out that she and the sponsor lived together in the same household in Sri Lanka in 1996. That error on the part of the judge is not, however, a material error which affects the outcome of the appeal.

5. Mr Tufan has provided a copy of the Tribunal's decision in Moneke (EEA - OFMs) Nigeria [2011] UKUT 341 and from paragraph 40 of that determination it is clear that a person claiming to be an OFM may either be a dependant, or a member of the household of the EEA national, and in the case of dependency or membership of the household, it must be on a person who was an EEA national at the material time. The sponsor in this case became an EEA national when she obtained her German nationality in 2007, so that she was not an EEA national at the time that she and the appellants lived together in Sri Lanka.

6. Counsel has in my view very properly agreed that in the circumstances this appeal cannot succeed. I find that the First-tier Tribunal Judge did err in law, but such error was not material to the outcome of the appeal because the appellant could not succeed.

Notice of Decision

The First-tier Tribunal Judge dismissed the appeals. I uphold his decision.

 

 

Upper Tribunal Judge Chalkley