IA100412014

The Appellant is a citizen of Ghana born on 14 February 1970. She is the widow of Davies Addie, an Italian citizen, who died in the UK on 21 st March 2013. She has two children born 25 th September 2001 and 25 th June 2004. They are Italian citizens.

The First-tier Tribunal found that the Appellant and her children were prejudiced by the decision which, it was said, breached their rights of residence under EU law on the basis that the Appellant had no status in Italy. The Respondent's appeal was allowed by the Upper Tribunal on 30 th June 2015 on the basis that First-tier Judge Griffith erred in law in accepting the Appellant's mere assertion of a lack of status in Italy. The decision was set aside and the appeal adjourned for re-hearing.

Mr Avery submitted that the Appellant could not meet the requirements of the Regulations. Any reference to EU considerations had a minimum impact on Article 8. The Appellant had a right of residence in Italy and she and her children had lived there until they came to the UK in 2013. The children could continue their education in Italy. Any interference was not so significant so as to engage Article 8 or to render the refusal of a residence card disproportionate.

Mr Wells submitted that education was not transitory and was intrinsic to the child. Interference with education was a serious matter and the children in this case should be treated the same as British citizen children. Interference with their education would have a long lasting effect and requiring the to return to Italy was disproportionate in the circumstances.

"Retention of the right of residence by family members in the event of death or departure of the Union citizen