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In her decision promulgated on 4 th May 2016, F t T Judge Meyler concluded that the appellant's sponsor is not a national of another EEA member state, was never married to an EEA national and had never exercised EU Treaty rights. She concluded that the sponsor and appellant have no rights arising out of EU law but went on to conclude that the decision to refuse the appellant entry to the UK, amounts to a disproportionate lack of respect for the rights of all those affected by the decision under Article 8 of the European Convention.
Permission to appeal to the Upper Tribunal was granted by F t T Judge Hodgkinson on 14 th September 2016. At the conclusion of the hearing before me, I announced that I agreed with the respondent that there was a material error of law in the decision of F t T Judge Meyler and that having considered the submissions made by the parties, I would remake the decision, dismissing the appeal. I said that I would give the reasons for my decision in writing. This I now do.
The underlying decision that was the subject of the appeal before the F t T was the decision of the respondent dated 14 th May 2015 to refuse the appellant's application for an EEA family permit. The appellant had applied for an EEA family permit to join his sponsor, Suriya Jan and Mohammed Musa Tahir in the UK as a spouse and carer respectively. The application was considered by the respondent under Regulations 9, 11(5) and 12(2) of the Immigration (European Economic Area) Regulations 2006.
The appellant was not represented at the hearing before the F t T. The sponsor did attend and she gave evidence in English. At paragraphs [11] and [12], the Judge states:
"11. I asked the sponsor a number of questions which led me to the conclusion that she was not a national of another EEA member state, was never married to an EEA national and had never exercised EU Treaty rights. The EEA form completed was a simple mistake on the part of the appellant. The appellant had previously used the correct form and paid the correct fee on 9 March 2015 when her son was ill but his application had been refused. The current application was submitted on 1 May 2015.
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