IA177682015

The Secretary of State for the Home Department appeals against the decision of First-tier Tribunal Judge Khawar promulgated on 30 August 2016, in which Mr Hutja's appeal against the decision dated 27 April 2015 to refuse his application for an EEA Residence Card was allowed. For ease, I continue to refer to the parties as they appeared before the First-Tier Tribunal with Mr Hutja as the Appellant and the Secretary of State for the Home Department as the Respondent.

The application was refused on 27 April 2015 on the basis of a refusal to exercise discretion under Regulation 17(4)(b) of the Immigration (European Economic Area) Regulations 2006 (the "EEA Regulations") because the Appellant had previously been apprehended attempting to enter the United Kingdom clandestinely (on 23 October 2011 in Dunkirk); had been arrested by the police on 9 September 2012 for possession of a Class A drug with intent to supply and had made declarations on his application form which failed to mention his arrest.

Judge Khawar allowed the appeal on 30 August 2016 under the EEA Regulations. He found that the Appellant had been arrested for possession of a class A drug but not of intent to supply and that there had been no failure to disclose the arrest on his application form. Overall, it was found that there were no issues of character for the Respondent to refuse to exercise discretion to issue an EEA Residence Card.

Judge Khawar also allowed the appeal on human rights grounds under Article 8 of the European Convention on Human Rights grounds for the same reasons, despite the Appellant not having raised this and despite hearing no submissions on it.

The Respondent appeals on two grounds, firstly that Judge Khawar exercised personal judgment as to the Appellant's cocaine use and good character; and secondly, that he erred in law in allowing the appeal on human rights grounds.