EA004522018

This is an appeal against the decision of First-tier Tribunal Judge Geraint Jones QC, promulgated on 24 September 2018. Permission to appeal was granted by Designated Judge of the First-tier Tribunal McClure on 7 November 2018.

The appellant married AK, a Polish citizen on 20 March 2013. A divorce petition was issued on 15 March 2017 and the decree absolute was pronounced on 15 August 2017. On 20 September 2017, the appellant sought confirmation that he was entitled to retained rights of residence as the former family member of a citizen of the European Economic Area following their divorce.

The grounds of appeal argued that the judge had erred, firstly, in imposing a requirement that the appellant and his former spouse had to have lived together at the same address and secondly, in finding that there was a requirement that the appellant produce the original identity document of his former spouse. These errors had an adverse impact on his treatment of the issue of whether the former spouse was exercising Treaty rights.

The respondent's Rule 24 response, received on 7 December 2018, stated that the decision of the First-tier Tribunal Judge had not been received. It was accepted that if the matters set out in the grant of permission were reflective of the approach of the judge, they would amount to material errors of law.

At the outset, while unable to concede the appeal, Mr Melvin accepted that the error relating to Regulation 10(5)(d)(i) identified in the grounds as well as materiality appeared to be made out. He submitted that the judge placed emphasis on the living together point rather than concentrating on what was said in the reasons for refusal letter regarding the lack of evidence of the former spouse exercising Treaty rights. Nonetheless he found it difficult to defend the decision with vigour.