The Upper Tribunal (Asylum and Immigration Chamber) has reported its determination in the case of the Appellant Anna Baskakova and the Respondent, The Secretary of State for the Home Department.
The Appellant was born in April 1984 and is a national of Russia. The Appellant was issued with entry clearance to the United Kingdom on the 10 December 2009 and subsequently granted an EEA Residence Card as a family member of an EEA national on the 6 October 2010.
An application for EEA Residence Card reflecting permanent residence was refused in May 2013 with a further application made on the same basis refused on 20 October 2015. On the 10 May 2016 the Respondent refused the application on the basis that the Appellant has not satisfied regulation 10(2)(c) of the Immigration (European Economic Area) Regulations 2006.
In a decision promulgated on the 20 September 2017, Judge Walters allowed the appeal on the basis that the Respondents failure to decide whether the Appellant qualified as a family member under regulation 10(6)(b) of the immigration (European Economic Area) regulations 2006 renders the decision not in accordance with the law.
The Appellant then appealed on the basis that the First-tier Tribunal materially erred in law in allowing the appeal on the basis that the decision was not in accordance with law, this being an avenue no longer open to a First-tier Tribunal, who is required to make findings and determine the appeal by allowing and dismissing it, or reaching a decision the effect of which is that the Respondent must or may make a fresh decision.
Permission to appeal was granted on the 15 March 2018 on all grounds. The Appellant did not attend the oral hearing, nor was she legally represented. Notice of the hearing was sent to the Appellant on the 30 April 2018 and no request for an adjournment was made. The hearing was considered in the interests of justice and the judge made the decision to continue with the appeal even in the Appellants absence. At the oral hearing, no further substantive oral submissions were required from the Respondent as the grounds of challenge were perfectly clear and did not require further elaboration.
The Upper Tribunal found the making of the decisions of the First-tier Tribunal did involve making of a material error of law. As such it is necessary to set aside the decision. The decision of the First-tier Tribunal is set aside and the appeal will be remitted to the First-tier Tribunal.
You can view a full copy of the judgment here.
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