(Immigration and Asylum Chamber)
Boodhoo and another (EEA Regs: relevant evidence)  UKUT 00346 (IAC)
THE IMMIGRATION ACTS
Heard at George House, Edinburgh
On Wednesday 12 June, 2013
THE PRESIDENT, THE HONOURABLE MR JUSTICE BLAKE
mariA gonzales serano
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
For the Appellant: Mr. Stephenson of McGill & Co Solicitors
For the Respondent: Mr A Mullen, Home Office Presenting Officer
(1) Neither section 85A of the Nationality, Immigration and Asylum Act 2002 nor the guidance in DR (Morocco)*  UKAIT 38 regarding a previous version of section 85(5) of that Act has any bearing on an appeal under the Immigration (European Economic Area) Regulations 2006. In such an appeal, a tribunal has power to consider any evidence which it thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision.
(2) Accordingly, evidence of comprehensive sickness cover, which began after the date of the decision appealed, fell to be considered by the First-tier Tribunal judge, as it was plainly relevant to the substance of the decision, albeit that it arose after the date of that decision.
(3) It is particularly important that the Home Office should engage properly with observations of the Upper Tribunal made on or following the grant of permission to appeal.
DETERMINATION AND REASONS
1. Maria Gonzales Serano is a Spanish national. Sanjay Boodhoo is a national of Mauritius who is her husband. In April 2011 the couple came to the United Kingdom where they were employed as English teachers. It appears that Ms Serano was engaged under a contract for services and would thus be considered self-employed.
2. On 22 August 2011 she ceased her self-employed activity as a teacher because she was pregnant and was about to give birth. She states that she intended to resume self-employment in January 2012. In the meantime in October 2011 the couple applied for proof of their entitlement to reside as an EEA national and the third country spouse of such a national. They were entitled to such documentation under the EEA Regulations 2006 if Miss Serano was a qualified person within the meaning of those Regulations.
3. In November 2011 their applications were refused because the Secretary of State was not satisfied that Miss Serano was a qualified person. The decision letter explained first, that she was not retained under a contract of employment during the time she was taking maternity leave. It was therefore considered she was not a worker within the meaning of Article 7 (3) of Directive 2004/38/EC and the provisions of Article 11 (2) that would extend the validity of a residence card for a maximum period of twelve months as a result of childbirth.
4. Although this would appear to be a surprising interpretation of the Directive, that discriminates against self-employed people, there is authority supporting that approach in the decision of the Court of Appeal in Jessy Saint Prix v Secretary of State for Work and Pensions  EWCA Civ 806, which is on appeal to the Supreme Court  UKSC 49. The Supreme Court has made a reference to the Court of Justice where a decision is awaited.
5. A second basis for the refusal of the documentation was in response to representations made that the couple were self-sufficient due to a combination of their savings and Mr Boodoo’s continued ability to support the family through his employment. The problem with that contention was that the couple had not presented evidence of a comprehensive sickness insurance cover as required by regulation 4 (1) (d) (ii) of the Immigration (European Economic Area) Regulations, 2006. Accordingly on 15 February 2012 this application was refused.
6. The couple appealed and the appeal came before Judge Smith of the First-tier Tribunal on 17 May 2012. At that appeal the couple were able to produce a comprehensive insurance certificate dated 11 May 2012 effective from that date. It was accepted that having regard to their resources, if the certificate could be taken into account on the appeal, the couple were entitled to succeed.
7. The presenting officer at that appeal contended that the certificate could not be taken into account, relying on section 85A of the Immigration Nationality and Asylum Act 2002. The judge was not persuaded by that submission but concluded applying section 85(4) of the 2002 Act in combination with the guidance given by the AIT in DR (Morocco)  UKAIT 38 that the certificate could not be taken into account because it related to a post decision issue. The appeal was accordingly dismissed.
8. The couple then appealed to the Upper Tribunal, permission to appeal was first refused by the First-tier Tribunal on the 15 June, 2012 but fortunately it was granted on 7 August 2012 where Upper Tribunal Judge Peter Lane strongly expressed the view that the certificate was admissible. He invited the Home Office to make written representations as to why the contrary was the case. Such representations were made on 31 August 2012. The papers then came before Mr Ockelton, Vice- President, on 10 January 2013 who again strongly expressed the view that section 85A did not apply to curtail the admissibility of evidence in an EEA appeal and indicated he was minded to allow the appeal subject to any further representation that the Home Office seek to make.
9. Those representations were made on 21 January 2013 and make two points. First , it is stated that Schedule 1 to the EEA Regulations provides that sections 85 to 87 of the 2002 Act have effect in relation to an appeal under the Regulations as if it were an appeal against an immigration decision under section 82 of that Act. Second, it is submitted that section 85 gives the judge a discretion whether to admit evidence and the judge was entitled to exercise his discretion in this case having regard to the fact that this certificate had only recently been produced. An oral hearing was requested.
10. Shortly before that hearing helpful written submissions were lodged on behalf of the appellants, spelling out why the judge was quite wrong to apply the decision of DR (Morocco) as that decision related to entry clearance appeals under an earlier version of s.85 and had nothing to do with EEA appeals. Secondly, it was pointed out, there was a relevant decision in the case of SGC and others (EEA-Date of Decision-1999 Act) Ireland  UKAIT 179. This decision was concerned with an earlier statute but at paragraph 25 the AIT looked ahead to the 2002 Act and said:
‘At least for in-country appeals, section 85(4) makes clear that the Tribunal must consider all relevant evidence including matters arising after the date of decision and thus must determine the facts as at the date of hearing (LS (Post-decision evidence; direction; appeal ability) Gambia  UKAIT 00085)’.
11. On the 11 June, 2011 Mr Mullen wrote to the Tribunal indicating that the Home Office now accepted that the First-tier Tribunal Judge ought to have allowed the appeal because the appellants had provided evidence of their entitlement to remain under the Regulations at the date of the appeal.
12. Accordingly the appeal did not proceed in a contested manner. Unfortunately the Tribunal was informed that the couple had left the United Kingdom at the end of 2012 to return to Spain because of the continued uncertainty of their status.
13. The first issue is whether there is still a valid appeal outstanding to be determined. It is common ground that there was because the departure of the couple has no impact in an EEA appeal: see regulation 25(4) of the EEA Regulations 2006. Section 104 of the 2002 Act does not apply to such appeals.
14. The second question is whether the First-tier Judge made an error of law. It is common ground that he did. First, he sought to apply the decision in DR (Morocco) to EEA appeals to which it had no application whatsoever; second he misapplied Section 85 (4) of the 2002 Act in its current form. I accordingly find a material error of law.
15. Although the determination of this appeal would not appear to be of any immediate benefit to the couple since they have returned to Spain it is important that the judge’s error is clarified particularly having regard to the approach of the Home Office in opposing this appeal from May 2012 until 11 June 2013. I accordingly set aside the judge’s decision and re-make it. I indicated that at the end of the hearing that the appeal would be allowed and I now give reasons for that decision.
16. I accept that the Schedule to the EEA Regulations brings section 85(4) of the 2002 Act into play in EEA appeals. Section 85 (4) is in the following terms:-
‘On an appeal under section 82(1)… against a decision [The Tribunal] may consider
evidence about any matter which [it] thinks relevant to the substance of the decision,
including evidence which concerns a matter arising after the date of decision.’
Although section 85(4) is subject to subsection 85(5), introducing the exceptions made in section 85(A), none of those exceptions are applicable to an EEA appeal and need not be considered further in this decision.
17. Construing the plain words of section 85(4) without regard either to the exceptions in section 85A and/or the previous guidance in DR (Morocco) relating to a different version of the statute and a different class of immigration decision, the section permits post-decision evidence to be received by the Tribunal about “any matter which the Tribunal thinks relevant to the substance of the decision”. The question of admissibility thus turns on whether the insurance certificate obtained in May 2012 was relevant to the appeal against the February 2012 decision.
18. In my judgment the answer is plain. An appeal against a refusal of residence documentation is normally concerned with whether the appellant or his/her spouse is a qualified person. A claimant is a qualified person if as a matter of fact the requirements of EU law are met. It is trite law that this is not a status given by discretion of the Secretary of State on an application duly made. The purpose of the residence documentation which the claimants seek is simply evidential confirmation of their status. It is not a source of their rights: see for example R v Pieck  EUECJ 157/79.
19. It is common ground that a self-sufficient person who has resources and a comprehensive insurance certificate is a qualified person for the purpose of the Directive. Once the certificate had been produced on 11 May 2012, there was no basis for further disputing that Ms Serano was a qualified person. The previous Home Office decision should have been withdrawn once the certificate had been produced and its reliability accepted. Instead a false point was taken that the certificate was not admissible in the appeal. It plainly was admissible because it was not merely relevant to the decision to the substance of the issue outstanding, it was determinative of it.
20. It is extremely unfortunate that despite the observations of two very experienced judges of the Upper Tribunal: Judge Peter Lane and the Vice President Mr Ockelton, as well as the previous decision of the AIT cited at  above, this appeal continued to be opposed for thirteen months. It is doubly unfortunate that the appellants have been put to the expense of legal costs and have subsequently departed the United Kingdom as a result of the persistent error of law made in opposing this appeal. Whether they have any remedy by way of redress is not an issue arising in this appeal.
21. The final Home Office attempt to justify the judge’s decision in excluding the evidence as a matter of discretion is particularly bizarre. If the evidence was relevant to the issue on appeal there is no discretion in the judge to exclude it. For reasons already given it was not only relevant but decisive. The assessment of relevance is an exercise of legal judgment rather than a discretion to admit.
22. If the Home Office wanted an opportunity to examine the validity of the certificate having regard to the late stage of its production, it could and should have asked for a short adjournment for enquiries to be made. It did not do so; indeed the validity and effect of the certificate were accepted.
23. Now the matter has been clarified I express the hope that such an erroneous approach will not be taken in the future. I am grateful to Mr Mullen for his letter of the 11 June and his assistance at the hearing of the appeal when these propositions were examined and the matter resolved.
24. For these reasons I re-make the decision by allowing it to the extent of declaring that as of 11 May 2012 Ms Serano was a qualified person and she and her spouse were entitled to residence documentation in support of that proposition.
Date: 26 June 2013
Chamber President of the Upper Tribunal