Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/00542/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 31 October 2018
On 03 December 2018

Before

UPPER TRIBUNAL JUDGE GLEESON

Between

Beshel [I]
(no anonymity order)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: In person
For the Respondent: Mr S Walker, a Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant appeals with permission against the decision of First-tier Tribunal Judge Heatherington dismissing his appeal against the respondent's refusal to grant him a residence card as the extended family member of an EEA citizen exercising Treaty rights in the United Kingdom.
2. The appellant is a citizen of Nigeria: it is not disputed that his wife, the sponsor, is an EEA citizen and is in the United Kingdom. The appellant has appeared in person both in the First-tier Tribunal and before the Upper Tribunal.
3. However, in the refusal letter the respondent did not accept that the sponsor was exercising Treaty rights, nor that there was sufficient evidence of a durable relationship between the appellant and sponsor.
4. The First-tier Tribunal dismissed the appeal, accepting that the parties are in a durable relationship but not that the sponsor is exercising Treaty rights. She has not been fit to work since March 2015 because she has both Sjogren's syndrome and fibromyalgia. Both are long-term conditions. Sjogren's syndrome affects parts of the body that produce fluids like tears and spit (saliva) and fibromyalgia causes pain all over the body. The sponsor receives Employment Support Allowance (ESA) and Personal Independence Payments (PIP).
5. The evidence accepted in the decision of the First-tier Tribunal begins at [8]:-
"8. The appellant states in the application that he began to live with the sponsor on 19 August 2011 (page 16 in the respondent's bundle). He explains that the sponsor is a photographer trading under the style of firm names of Photomadarka (page 26 in the respondent's bundle). Illness in 2014 resulted in the sponsor temporarily ceasing trading (page 27 in the respondent's bundle). She stopped taking new jobs in March 2015 (page 28 in the respondent's bundle). The sponsor received Employment Support Allowance (ESA) from 15 May 2015 and evidence of this was provided at the hearing (letter from jobcentreplus dated 15 May 2015) and Housing Benefit from 20 April 2015. Housing Benefit pays the rent of those who are on a low income or claiming certain benefits.
9. The sponsor suffers from Sjogren's syndrome. There is also evidence that the sponsor has been treated for a fertility problem (letter from King's College Hospital dated 4 September 2015. The sponsor said that she had fibromyalgia, a long-term condition that causes pain and increased sensitivity to pain throughout the body, extreme tiredness and muscle stiffness. ...
17. ESA is a United Kingdom state benefit paid to qualified persons who have paid or been credited with National Insurance contributions [for at least two years] and who cannot work because of illness or disability. Personal Independence Payment (PIP) helps with the extra costs of disability or long-term health conditions for people aged 16 to 64. It is a non-means tested benefit.
18. I am satisfied that the sponsor was awarded ESA from 15 May 2015 and both ESA and PIP remain in payment.
19. The sponsor is not a jobseeker, a worker, a self-employed person, a self-sufficient person or a student. The sponsor's medical conditions are longstanding, and incurable. Plainly she is not temporarily unable to work. Whilst the sponsor stopped work temporarily it is stretching language too far to say that remains the position.
20. The appeal must fail because the sponsor's own evidence is that the medical conditions that prevent her working are not temporary."
[Emphasis added]
6. The First-tier Tribunal dismissed the appeal and the appellant appealed.
Permission to appeal
7. Permission to appeal was granted on the basis that the First-tier Judge had arguably approached the appeal on the basis that the sponsor was permanently unable to work, but had then failed to consider whether the sponsor was entitled to a permanent right of residence as a worker or self-employed person who had terminated activity as a result of permanent incapacity to work.
Immigration (European Economic Area) Regulations 2006
8. The relevant provisions of the EEA Regulations 2006 are:
""Worker or self-employed person who has ceased activity"
5.-(1) In these Regulations, "worker or self-employed person who has ceased activity" means an EEA national who satisfies the conditions in paragraph (2), (3), (4) or (5). ?
(3) A person satisfies the conditions in this paragraph if-
(a) he terminates his activity in the United Kingdom as a worker or self-employed person as a result of a permanent incapacity to work; and
(b) either-
(i)he resided in the United Kingdom continuously for more than two years prior to the termination; or
(ii)the incapacity is the result of an accident at work or an occupational disease that entitles him to a pension payable in full or in part by an institution in the United Kingdom.
"Qualified person"
6.-(1) In these Regulations, "qualified person" means a person who is an EEA national and in the United Kingdom as-
(a) a jobseeker;
(b) a worker;
(c) a self-employed person;
(d) a self-sufficient person; or
(e) a student.
(2) A person who is no longer working shall not cease to be treated as a worker for the purpose of paragraph (1)(b) if-
(a) he is temporarily unable to work as the result of an illness or accident; ?
"Extended family member"
8.-(1) In these Regulations "extended family member" means a person who is not a family member of an EEA national under regulation 7(1)(a), (b) or (c) and who satisfies the conditions in paragraph (2), (3), (4) or (5). ?
(5) A person satisfies the condition in this paragraph if the person is the partner of an EEA national (other than a civil partner) and can prove to the decision maker that he is in a durable relationship with the EEA national.
Permanent right of residence
15.-(1) The following persons shall acquire the right to reside in the United Kingdom permanently-?
(c) a worker or self-employed person who has ceased activity; ?
(2) Once acquired, the right of permanent residence under this regulation shall be lost only through absence from the United Kingdom for a period exceeding two consecutive years. ..."
9. That is the legal framework against which this appeal falls to be decided.
Analysis
10. Paragraph 8(5) of the Immigration (European Economic Area) Regulations 2006 defines an extended family member as a person who is a partner of an EEA national other than a civil partner and can prove to the decision maker that he is in a durable relationship with the EEA national; that is not now disputed in this application.
11. The question for the First-tier Tribunal and now for the Upper Tribunal is whether the sponsor is exercising Treaty rights in the United Kingdom, now that she is not working. She needs to show that she is a worker or self-employed person who has ceased activity and/or that she is a qualified person under Regulation 6.
12. Employment and Support Allowance (ESA) is administered through Jobcentre Plus and requires a Work Capability Assessment at regular intervals, to see to what extent the illness or disability affects the person's ability to work. Those assessed fall into two groups, a work-related activity group where there are regular interviews between the person and an advisor, and a support group, where no such interviews are conducted. ESA provides financial support while an individual is unable to work, together with personalised help, so that the person can work, if they are able to do so.
13. The sponsor is in the work-related activity group which requires regular interviews to see whether she still qualifies for ESA, as is evidenced by the Jobcentre Plus correspondence in the bundle. Jobcentre Plus is treating the sponsor's long-term illness as a temporary illness. On that basis the finding at paragraph 19 is plainly wrong.
14. If the sponsor's inability to work were permanent, as the First-tier Judge found, then her situation should have been considered under Regulation 5(3). The sponsor would be entitled to a permanent right of residence as a person who terminated her activity in the United Kingdom as a worker or self-employed person as a result of a permanent incapacity to work.
15. On any view, the sponsor is in the United Kingdom in accordance with the Regulations and exercising Treaty rights, and accordingly, there being no challenge to the First-tier Judge's finding that the appellant and sponsor are in a durable relationship as required by Regulation 8(5), the appellant is entitled to the grant of a residence card on the basis that he is an extended family member of the sponsor.
16. For all of these reasons there is a material error of law in the decision of the First-tier Tribunal.
17. I set aside the decision and remake the decision by allowing the appellant's appeal.
Conclusions
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I set aside the decision.
I re-make the decision in the appeal by allowing the appeal.

Signed: Judith A J C Gleeson Date: 28 November 2018
Upper Tribunal Judge Gleeson