IA270382014

The Respondent, Ms Altaf is a citizen of Pakistan whose date of birth is recorded as 20 th June 1987. She made an application for a Residence Card as an extended family member having regard to Regulation 8 of the Immigration (EEA) Regulations 2006 ("the Regulations"). On 13 th June 2014 a decision was made to refuse the application and so she appealed. Her appeal was heard on 13 th August 2015 by Judge of the First-tier Tribunal Birk sitting at Hatton Cross.

In every material particular Judge Birk found the case advanced by Ms Altaf credible and made positive findings but then went on to allow the appeal outright.

Not content with that decision, by Notice dated 11 th September 2015 the Secretary of State made an application for permission to appeal to the Upper Tribunal having regard to the guidance in the case of Ihemedu (OFMs - meaning) Nigeria [2011] UKUT 340 (IAC) . The point in issue is that because the Regulations which mirror Directive 2004/38/EC gives the Secretary of State a discretion in these circumstances it was not open to the judge to allow the appeal outright.

Mr Solomon sought to persuade me that there was no error because the judge had not allowed the appeal under Regulation 17(4) but under Regulation 8(2).

I find, with respect to Mr Solomon that the distinction is without a difference. The reality is that it was not for the Tribunal to make the ultimate decision. It is for the Secretary of State. However she should take into account the findings now made.