IA166582014

The appellant appeals from the decision of First-tier Tribunal Judge Batiste who, in a decision promulgated on the 16 th July 2014, dismissed her appeal against the respondent�s refusal of her application for an EEA Residence Card as confirmation of a derivative right of residence under European Union treaties, transposed into UK law by Regulation 15A of the Immigration (European Economic Area) Regulations 2006.

The appellant is a citizen of Pakistan who currently resides with her British husband and children in the United Kingdom. Her appeal was dismissed under the Regulations because the First-tier Tribunal judge was not satisfied that the appellant was the primary carer of her children, concluding instead that she shared that responsibility with her husband. It followed from this that the children would be able to remain with their father if the appellant was required to leave the United Kingdom.

At paragraph 7 of his determination, Judge Batiste made the following observation:

A � discussion took place as to whether Article 8 arose in the current appeal. I find that it does not. The present application is for a derivative residence card. It is made clear in the reasons for refusal letter that a decision was not made under Article 8; that a decision not to issue a derivative residence card does not in itself require the appellant to leave the United Kingdom; and if attempts were made to remove the appellant she would have a separate opportunity to make representations against that removal. As a result, this determination does not consider Article 8.

Designated Judge Shaerf granted permission to appeal against that part of the determination in the following terms: