OA166642013

The Appellant born on 9 th April 1973 is a citizen of Pakistan. The Appellant had made application for entry clearance as a family member of an EEA national exercising treaty rights under the 2006 EEA Regulations. The Respondent had refused that application on 19 th July 2013. The Appellant had appealed that decision and his appeal was heard by Judge of the First-tier Tribunal Lambert sitting at Manchester on 21 st May 2014. She had dismissed his appeal both under the 2006 Regulations and under Article 8 of the ECHR.

Application for permission to appeal had been made on the Appellant�s behalf with Grounds of Appeal dated 6 th June 2014. Permission to appeal had been granted by Judge Easterman on 18 th July 2014. Permission to appeal was granted on the basis that the case of O v The Netherlands C-456-12 arguably should have been given precedence than the Regulations and permission was granted on all grounds.

Mr McVeety whilst conceding this was not an easy decision referred to the Respondent�s response in this matter dated 25 th July 2014. At the conclusion I reserved my decision on whether or not an error of law had been made and now provide that decision with my reasons.

The judge had noted in line with the case of Devaseelan that the previous Immigration Judge had made no findings as to the Appellant�s position under the EEA Regulations which was the matter that was essentially before her. The Respondent�s principal argument was that the Sponsor had not been economically active in exercising treaty rights prior to her return to the United Kingdom in 2010 and accordingly the Appellant failed to satisfy Regulation 9(2)(a) of the 2006 Regulations which was designed to incorporate into UK law the decision in Surindher Singh .

The judge had been referred to the case of O v The Netherlands C-456-12 which essentially extended the principal in Surindher Singh and was a decision of the European Court. The Immigration Judge conceded at paragraph 4.8 that having read that decision it was a matter that could be argued in support of the Appellant�s case but took the view that her role was to determine whether the Respondent�s decision was in accordance with the United Kingdom law as set out in 2006 Regulations.