Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/00323/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 31 March 2017
On 26 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE DAVEY

Between

Mr toheeb hammed
(ANONYMITY DIRECTION NOT MADE)

Appellant
and

ENTRY CLEARANCE OFFICER - LAGOS

Respondent

Representation:

For the Appellant: Mr D Mold, Counsel instructed by Daniel Aramide Solicitors
For the Respondent: Mr T Wilding, Senior Presenting Officer

DECISION AND REASONS

1. The Appellant, a national of Nigeria, date of birth 29 October 1992, appeals against the ECO’s decision, dated 11 June 2015, refusing leave to enter pursuant to an application arising under the Immigration (European Economic Area) Regulations 2006 (the 2006 Regulations). The matter came before First-tier Judge Dean (the Judge) who, on 15 August 2016, dismissed the appeal under the Regulations. Permission to appeal that decision was given by Upper Tribunal Judge Lindsley on 20 February 2017. The Respondent made a Rule 24 response by a letter dated 27 February 2017.

2. Attached to that Rule 24 response was a copy or a transcription of the note taken by the Presenting Officer who appeared before the judge.

3. It is clear that Mr Mold who appears today was appearing for the Appellant and had found himself in some slight difficulty in that the Sponsor was only a speaker of Yoruba and there was no court interpreter present. It appears that instead of applying for an adjournment the decision was made to proceed on the material as was available without hearing live evidence from the UK Sponsor: The father of the Appellant and husband of an EEA national who it was said was exercising treaty rights.

4. The matter therefore proceeded and Mr Mold had to do the best he could with the documentation that was provided.

5. It is fair to say there was no statement from the Sponsor’s wife concerning the exercise of treaty rights. There was no Sponsor’s statement particularly addressing the issues raised by the ECO. There was no evidence from the Appellant concerning his dependency and the extent to which he relied upon monies sent by the Sponsor in order to live in Nigeria. In addition and this is no fault of Mr Mold the position is that the documentary evidence produced did not assist his case in that it was for example difficult to relate, absent of any explanation, the Sponsor’s wife, as a cleaner, on over time being paid in advance when there did not appear to be terms of employment providing for payment in advance: A matter which is unusual in most events.
6. Nevertheless in addition, without the evidence of the actual dependency, a peripheral point arose as to whom payments for the Appellant’s benefit were being made to. The judge at paragraph 15 noted as indeed the ECO had done that payments were being made seemingly to two persons unrelated to the Appellant. At the hearing I was told one of the recipients was in fact another name by which the Appellant was known and the other a relative of the Sponsor’s wife. The position was that the matter was not as the grounds might have suggested, which were not settled by Mr Mold. The point had been no surprise, on the contrary it had been raised before and at the hearing. There was no procedural unfairness or irrationality in the judge raising the issue not least when it was raised by the reasons for refusal: The written evidence submitted in support of the appeal had not addressed those matters.

7. Whether or not the answers would have been found if the Appellant’s father had given evidence I do not know and do not speculate. It is extremely unfortunate that there was such a piecemeal approach taken in case preparation and the bundle that was ultimately provided did less than justice to the breadth of the submissions Mr Mold makes as to why the appeal should have succeeded.

8 I agree with Mr Mold that it does appear that there was material that could explain points being taken by the judge and raised by the ECO: Which were not met by the evidence and that is unfortunate; but certainly no criticism of Mr Mold.

9. Therefore, turning to the matters of complaint against the factual background that the judge faced. The first point arose over the judge considering, although Mr Wilding somehow seeks to avoid it, from the fact that the Sponsor’s wife, the EEA national, was working only ten hours a week.

10. It seems to me in the light of the authorities and it is not ultimately the end of the matter in what is a fact-specific issue. Working ten hours can, as authorities identify, be sufficient. It is clear from the case of Scheffel EU Case C/444/93 that the arguments raised by the German government, to the effect, that not enough hours were being worked to constitute the exercise of treaty rights failed. The court held that working twelve hours a week or even ten hours a week did not prevent a person in such employment from being regarded as a worker. It seemed to me that fairly is reflected by the decision in Surraya Begum (EEA – Worker – Jobseeker) Pakistan [2011] UKUT 00275 (IAC). In this respect the concept of a worker is plainly fact specific and the issue essentially relates to the benefit that is attractive to or perceived by the employer.

11. It is clear that there was something of a absence of evidence at specifically the date of the hearing as to the extent of her employment. It seems the judge did not take the view that she was not in employment, so much as the extent of it, was not sufficient to amount to her being a qualified person for the purposes of Regulation 6 of the 2006 Regulations.

12. In that respect I agree that the way the judge presented the matter, particularly looking forward to the date of hearing, perhaps showed that she had not entirely understood the sense in which Ms Traore (the Sponsor’s wife) was exercising treaty rights. That said it seems to me the other criticisms that are made of the judge’s decision fall away because, quite simply, even if the Sponsor was exercising treaty rights, the evidence, as the judge found, fell short of showing there was the necessary level of dependency. In those circumstances and such other points that are raised do not undermine the fact that there was not the evidence to show the Appelllant met the requirements of the 2006 Regulations.

13. It is extremely unfortunate but if this matter is to be pursued, a further application will have to be made with coherent cogent evidence provided. With the greatest of respect to the person who drafted the grounds of appeal, quite simply the grounds do not overcome the unfortunate fact that the evidence was not provided as required on those issues bearing in mind the known difficulties that any applicant out of country faces in the normal hurdles that arise through the Entry Clearance Officer system and the electronic form of application.

14. Accordingly I conclude that the Original Tribunal made no material error of law and that the Original Tribunal’s decision stands. The appeal is dismissed.

No anonymity direction is made.

Signed Date 15 April 2017

Deputy Upper Tribunal Judge Davey

TO THE RESPONDENT
FEE AWARD
I have dismissed the appeal and therefore there can be no fee award.

Signed Date 15 April 2017
Deputy Upper Tribunal Judge Davey