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The appellant challenged the decision of First-tier Tribunal Judge Herlihy promulgated on 17 th July 2019 refusing his appeal against the decision of the Secretary of State on 12 th December 2019 to issue him with a derivative residence card pursuant to the provisions of Regulation 16(5) and 20 of the Immigration (European Economic Area) Regulations 2016 (the EEA Regulations).
The First-tier Tribunal Judge at section 6 of her decision set out the following findings
"6.1 The Respondent has refused the Appellant's application for a derivative residence card because she finds that insufficient evidence has been produced to show that the Appellant shares that care of his son and that his son would be unable to remain in the United Kingdom if the Appellant were forced to leave the UK. The Respondent is of the view that there is another parent who would be able to assume caring responsibilities for the Appellant's son; namely his mother with whom he has lived since his birth and who has leave to remain in the United Kingdom until May 2020.
6.2 It is the Appellant's evidence that he shares the care of his son with his wife and that he is responsible for his day to day care when his wife is working although his son lives with his mother. The Appellant says that he is not permitted to live with his wife and children as they have been provided with emergency housing accommodation and at the time, he did not have an outstanding application to the Home Office and could not be included in the tenancy agreement. He says however that he spends most of his days with his family and stays over some nights.
6.3 It is not disputed that the Appellant is the biological father of a minor British child. I see no reason to doubt the Appellant's claim that he shares the care of his children, including his son O with his wife and that the children live with her and have done so since they were born. It is quite clear that the Appellant is unable to work and I see no reason to doubt his claim that he is involved in his children's life and is the first point of contact for his children's school.
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