EA005112018

I make no anonymity direction. None was made in the First-tier Tribunal and there has been no request for such.

This is the Secretary of State's appeal against the decision of First-tier Tribunal Judge Thorne promulgated on 31 July 2019 allowing the Claimant's appeal against the decision of the Secretary of State dated 15 December 2017 rejecting his application made on 11 September 2017 for an EEA permanent residence card on the basis of a retained right of residence as the ex-husband of an EEA national formally exercising treaty rights in the UK.

In remaking the decision, I made the following factual findings from the documents and confirmed them with Mr Timson at the hearing before me. The spouse entered the UK in 2009 as an EEA national (Spain). She and the claimant met at university in 2010. They married on 5 December 2011 in the UK. Their relationship broke down in August 2013. It is now known that the petition for divorce was sealed on 7 August 2014 and the divorce was finalised by decree absolute on 19 August 2015.

Mr Timson asked for some time to take instructions on this matter, following which he conceded that could not defeat that primary difficulty with the application and the appeal in relation to retained right of residence. The point is fatal to the application, regardless of the errors of the First-tier Tribunal Judge.

Mr Timson also raised the issue of whether the claimant may be able claim under the Brexit Settlement Scheme however that is not a matter for the Upper Tribunal at this stage.