[2024] UKUT 00362 (IAC)

At paragraph [4] of the decision, the First-tier Tribunal Judge noted the respondent’s conclusion in her decision that having entered the UK in February 2016, and having been imprisoned in July 2020, the appellant could not have continuously exercised Treaty Rights for the necessary 5 years to have acquired permanent residency. He was therefore not accepted to be lawfully resident in the UK immediately prior to 23.00 on 31 December 2020. The Judge did not expressly address that claim, but it has not been suggested by Ms Jones before us that the appellant had a right of permanent residence in the United Kingdom under the EEA Regulations 2016.

Here, the First-tier Tribunal Judge found that documents in the appellant’s bundle cover the appellant’s tax calculations for 2018 to 2019 and 2019 to 2020. Those documents indicate that he was economically active during those tax years in his own right. The judge found the appellant was therefore exercising Treaty Rights during that time. The judge went on to find the end date of the appellant’s employment according to his P45 and payslips was 18 September 2020, although he was actually serving the sentence of imprisonment from 7 July 2020.

On a proper application of the law, the appellant was not exercising Treaty Rights in accordance with Article 7 of the Directive, and therefore was not lawfully resident in the United Kingdom by virtue of the EEA Regulations 2016 immediately before IP completion day.

The Judge of the First-tier Tribunal erred in concluding the appellant was exercising Treaty Rights immediately prior to 23:00hrs on 31 December 2020 and in concluding that the deportation decision taken by the respondent pursuant to domestic legislation rather than the EEA Regulations 2016, was not in accordance with the law. Having reached that conclusion, the Judge erroneously concluded the interference with the appellant’s private life is not in accordance with the law and is unlawful and contrary to section 6 of the Human Rights Act 1998.

The decision of the First-tier Tribunal Judge must therefore be set aside with no findings preserved.

As to disposal, there is no reason why the decision should not be remade in the Upper Tribunal. The appeal will be listed for the decision to be remade in the Upper Tribunal on the first available date after 21 days.