Case No. UKUT-00124-(IAC)

5. The Appellant, a Tunisian national, appeals against the decision of First-tier Tribunal Judge Cassel (“the judge”), promulgated on 15 July 2019, by which he dismissed the Appellant’s appeal against the Respondent’s refusal to issue him with a permanent residence card under the 2016 Regulations. 6. In 2013 the Appellant married a Spanish national and was issued with a residence card under the 2006 Regulations. The relationship subsequently broke down, divorce proceedings were initiated on an unknown date in November 2016, and a decree absolute was issued in April 2017. A further residence card was issued to the Appellant, this time based upon his retained right of residence. The application for a permanent residence card was made in October 2018 and refused by the Respondent on 12 December 2018 on the ground that there was insufficient evidence of the ex-spouse’s employment during the period relied on by the Appellant. The Appellant appealed to the First-tier Tribunal . 7. The Appellant then applied for settled status under the EU Settlement Scheme (as provided for by Appendix EU to the Immigration Rules). On 22 May 2019 he was granted Indefinite Leave to Remain (“ILR”). 8. Apparently unaware of the grant of ILR and no jurisdictional issue having been raised by either party, the judge proceeded to dismiss the appeal on the basis that the Appellant had failed to demonstrate that he had been “exercising Treaty rights” as a “qualified person”, and that there was insufficient evidence of the ex-spouse having worked for five years prior to the divorce. 9. Following the grant of permission, the Respondent provided a rule 24 response, in which it was asserted, for the first time, that the grant of ILR meant that the Appellant’s appeal should be treated as abandoned. The Appellant refuted this, but in further correspondence the Respondent maintained her original position. 10. At the hearing on 13 January 2020, Mr Avery accepted that the judge had erred in law and that the decision should be remade and the appeal allowed. However, these concessions would be immaterial if the grant of ILR to the Appellant resulted in his appeal being treated as abandoned prior to the hearing before the judge. On this issue , Mr Avery requested additional time in which to provide a considered response on behalf of the Respondent. In all the circumstances, we acceded to this. 11. Mr Deller subsequently filed and served concise written submissions, for which we are grateful. These set out the concession summarised in paragraph 2, above.