IA231542014

This is the appeal of the Secretary of State against the decision of First-tier Tribunal Judge Butler promulgated 26.1.15, allowing on human rights grounds the claimant�s appeal against the decision of the Secretary of State to refuse her application for an EEA derivative residence card, pursuant to regulation 15A of the Immigration (EEA) Regulations 2006. The Judge heard the appeal on 12.1.15.

For the reasons set out herein, I found that there was an error of law in the making of the decision of the First-tier Tribunal such that the determination of Judge Butler should be set aside and remade.

The grounds of application for permission to appeal assert that the judge gave weight to immaterial matters, the hypothetical separation of the family; failed to give adequate weight to the fact that the family would leave together with the children�s best interests being to leave with their parents; failed to apply section 117B of the 2002 Act; and failed to provide adequate reasons for accepting the claimed lack of contact between child and father in the light of serious issues as to the credibility of the appellant and her husband.

In granting permission to appeal, Judge Chambers considered that the First-tier Tribunal Judge considered the best interests of the children at �47, deciding at �48 that there was a genuine and subsisting relationship with both parents, �but it is not shown on a fair reading of the decision that the judge gave weight to the countervailing factors argued in the grounds. Permission is granted.�

In essence, the issue in the error of law hearing is whether the judge should have gone on to consider the appellant�s case outside the Regulations on the basis of family life pursuant to article 8 ECHR, and whether that assessment, resulting the appeal being allowed on that ground only, was adequate.