EA001052016

For the Appellant reliance was placed on the case of Lounes referred to above.

Having heard (brief) oral submissions from both parties I reserved my decision.

In her decision Judge Bird found that there had been freedom of movement by the Appellant's Sponsor who was a German national and continued to be one. He had entered the United Kingdom exercising his right of free movement and commenced employment which he retained. Much of the discussion before the Judge seems to have centred around the interpretation to be drawn from the case of McCarthy v The UK (C3434/09 ) but as the judge correctly pointed out Mrs McCarthy had never exercised freedom of movement rights which was different to the position to the appeal before her where the Sponsor continued to be a German citizen and continued to exercise Treaty rights. The Judge went on to allow the appeal for the reasons she gave concluding that the Appellant was entitled to a residence card.

It is unclear to what extent the Regulation 2 point was canvassed before the Judge but the factual matrix of Lounes is very similar to the facts of this case. Ms Ormazabal, a Spanish national moved to the United Kingdom and became a naturalised British citizen and later on married Mr Lounes an Algerian national. He went on to apply for a residence card which application was refused. He appealed that decision. It is not necessary to do more than record the Grand Chamber's conclusion that he was eligible for a derived right of residence under Article 21 (1) TFEU on conditions which are set out in that decision.

As indicated Ms Everett said that when the point was taken on Regulation 2 it did seem to be a good point on behalf of the Secretary of State but events had proved otherwise.

In these circumstances it can be said that there is no error of law in the judge's decision which must stand.

The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.

I do not set aside the decision.

I was not asked to continue the anonymity order and see no need to do so.