EEA Family Permit, Derivative Rights of Residency
Case facts
The Appellant & her son applied to join her 2 daughters, who were EEA nationals in the UK and exercising their treaty rights. The application was complex and came with previous refusals.
Previous decisions meant that the new application had to be completed with careful checks and ensure we did not damage the credibility of the Appellant and her son.
Outcome of the matter
The new application under derivative rights of residency was lodged however the application was refused on the 1st of April 2019. The refusal contained a number of legal errors, as the application was considered under Regulation 7 and not under Regulation 16 of the EEA Reg 2016.
The appeal was lodged and we provided detailed grounds for the ECM to review the decision. The Home Office ignored our request, so this was a point we raised at the First Tier Tribunal. This was set out in Regulation 36 of the EEA Regulation 2016.
We needed to make sure that the Home Office were well aware of the issues we wish to raise, so that, if the matter was listed at the First Tier Tribunal, the Home Office was not able to raise issues and asking for further adjournments to the appeal hearing. The ECM reviewed the decision however did not overturn the decision.
The First Tier Tribunal set an appeal hearing date on the 20th January 2020. We prepared the Client's appeal bundle, which included detailed witness statements and skeleton arguments, drawing in starred case laws, and this was served to all interesting parties prior to the scheduled appeal hearing. The Sponsor's were concerned that their mother, the Appellant, could not come and join them in the UK.
On the 20th January 2020, the matter went before IAC Hatton Cross. The First Tier Tribunal Judge Ruddick, was presented with the case and we argued that the Appellant maintained the parental rights of the 2 Sponsor's in the UK and that failure to grant leave to enter to the Appellant, will ask the Sponsor to leave the UK & not be able to exercise their treaty rights, as they were in full time education.
There were 4 witnesses at the tribunal hearing, all submitted their witness statements, and adopted those statements at the hearing.
We raised a number of strong grounds, and it important to note that when EU rights are engaged, so too is the Charter of Fundamental Rights, including the right to respect for family life (Article 7 of the Charter) and the obligation to take into account the best interests of the child (Article 24(2) of the charter.
The Judge agreed we demonstrated that the Sponsor's held comprehensive sickness insurance and also were self-sufficient, meeting Regulation 6 of the EEA Reg 2016. The Home Office did not challenge the evidences and grounds we raised.
The First Tier Tribunal Judge agreed that the Appellant had met the threshold and the appeal was allowed. The decision was not challenged by the Home Office and the Appellant was granted an EEA family permit.
End.
