IA180092015

This is the Secretary of State's appeal to the Upper Tribunal, brought with the permission of a Judge of the First-tier Tribunal, from a decision of the First-tier Tribunal (Judge Samimi hereinafter "the judge") made after a hearing of 15 July 2016, to allow the claimant's appeal against a decision of the Secretary of State made on 7 May 2015, refusing to vary leave to enter or remain and deciding to remove him from the UK.

The judge, in a short written decision, set out the relevant immigration history. It was said that the appeal had been brought under Section 82(1) of the Nationality, Immigration and Asylum Act 2002. The Secretary of State's position as to matters up to the hearing was summarised in this way;

So, in short, the Secretary of State's position was that the claimant had failed to clock up ten years continuous lawful residence under paragraph 276A of the Immigration Rules.

The judge though decided, on the basis of published Home Office policy, that if a person was exercising treaty rights in the United Kingdom then the period in which he or she was so doing would on discretionary grounds be counted as lawful residence under paragraph 276A. The judge quoted from what he termed "the Respondent's Guidance on Long Residence - version 13.0". He thus concluded;

The Secretary of State applied for permission to appeal contending, in a nutshell, that the claimant had not had a right of appeal such that there had been no valid appeal before the judge; that the judge had had no proper basis to "assume" that the claimant had been exercising treaty rights at any point beyond the date on which his original residence had been issued; that the judge had wrongly proceeded on the basis that EEA Residence rights and leave to remain were interchangeable concepts and that the judge had misconstrued the policy guidance which he had had regard to.