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The appellant, a national of Kenya, appealed against a decision refusing to issue him with a residence card under the Immigration (European Economic Area) Regulations 2006 (the 2006 Regulations). Although he had earlier been married to an Irish citizen the application and appeal were concerned with the appellant�s unmarried partnership with a German citizen. The application was refused on the basis that the appellant had not established that the relationship was durable, as required by the 2006 Regulations.
At the error of law hearing on 18 December 2014 I indicated to the parties that it was my view, having read the papers and spoken to Upper Tribunal Judge Allen, that both grounds could be argued. The first ground had not been refused. In any event a consideration in isolation of Article 8 would be an academic exercise. Having given that indication I then agreed, at the request of Mr Melvin, who was representing the Secretary of State, to adjourn the hearing. This was on the basis that Mr Melvin had arrived prepared only to argue the second ground.
On 29 January 2015 I heard submissions from both sides as to whether a material error of law had been shown on the first ground. It was agreed between the parties that this ground could be considered first, with any submissions in relation to the second ground being made, if necessary, dependent on the success or otherwise of the first ground.
Having listened to the submissions by both sides I decided, on an analysis of paragraphs 48 to 57 of the judge�s determination, that there was a material error of law established, for the following reasons.
The judge accepted a number of significant points. First of all it was accepted that there was a relationship as friends between the appellant and his claimed partner. It was also accepted that there was significant financial support from her to him; and it was also accepted that the couple were living together from April 2014 onwards. The difference therefore between those findings and the finding of durable relationship was not a large one.
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