Anna Oksuzoglu v The Secretary of State for the Home Department [2018] UKUT 385 (IAC)

[2018] UKUT 00385 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
Date 9 October 2018
THE IMMIGRATION ACTS
Before
UPPER TRIBUNAL JUDGE PLIMMER
Between
ANNA OKSUZOGLUAppellantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondentMr Farhat, Gulbenkian Andonian Solicitors for appellantMs Everett, Senior Home Office Presenting Officer for respondent(1) By virtue of schedule 2(1) of the Immigration (EEA) Regulations 2016 (‘the 2016 Regs’) a “new matter” in section 85(6) of the Nationality, Immigration and Asylum Act 2002 includes not only a ground of appeal of a kind listed in section 84 but also an EEA ground of appeal.
Between
The effect of the transitory and transitional provisions at schedules 5 and 6 of the 2016 Regs is as follows:(a) All decisions made on or after 1 February 2017 are to be treated as having been made under the 2016 Regs, whatever the date of the application;(b) Regulation 9 of the 2016 Regs applies (through the medium of the transitory provisions) to all decisions made on or after 25 November 2016 whatever the date of the application;(c) In all other respects the Immigration (EEA) Regulations 2006 apply if (i) the application was made before 25 November 2016 and (ii) the decision was made before 1 February 2017.DECISION AND REASONS

Introduction

[1]The appellant is a citizen of Ukraine . Sh e is married to a British citizen (‘the sponsor’).[2]On 9 Sept ember 2016, the appellant applied for a residence card on the sole basis that s he was a family member of a British citizen who has exercised his Treaty rights by genuinely living in Cyprus, an EEA state.[3]On 26 April 2017, the respondent refused the appellant’s application because he was not satisfied that the parties’ residence in Cyprus was genuine .

The

[4]The appellant appealed to the First-tier Tribunal (‘FT T’) solely contending that the sponsor was a British citizen who had properly exercised his Treaty rights and as such the respondent should have exercised his discretion in his favour . FTT Judge Mill dismissed the appellant’s appeal in a decision dated 22 May 2018 .[5]The FTT considered detailed documentary and oral evidence from both the appellant and the sponsor and made the following factual findings , inter alia : (i). the sponsor was working in Cyprus between February and June 2016; (ii). the couple resided together in Cyprus between December 2015 and June 2016 before returning to live in the UK; (iii). t he sponsor did not acquire permanent residence in Cyprus; (iv). t he period of residence was not genuine for the purposes of regulation 9(3) of the Immigration (E uropean E conomic A rea ) Regulations 201 6 (‘the 2016 Regs ’) .

The

[6]The appellant sought permission to appeal to the Upper Tribunal relying upon two grounds of appeal : ( i ) the FTT erred i n law in applying the 2016 R egs when the Immigration (European Economic Area ) Regulations 200 6 (‘the 2006 Regs ’) applied ; (ii) alternatively the FTT failed to consider that the sponsor was in fact a Cypriot and therefore EEA citizen .[7]On 17 August 2018, the F T T (Judge Grant-Hutchinson ) granted the appellant permission to appeal observing both grounds to be arguable.[8]At the hearing before me M r Farhat relied upon the grounds of appeal that he had drafted for the purposes of the permission application . I refer to his oral submissions in more detail below.[9]M s Everett submitted that the FTT decision was adequately reasoned and contains no error of law.[10]After hearing from both representatives, I reserved my decision which I now provide with reasons.

Cited in 1 later judgment